### NUMBER 13 - 1 7 - 00 582 - CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG

ADRIAN LEE , Appellant,

v. TDCJ - CID, ET AL

. , Appellee s .

On appeal from the 36 th District Court of Bee County , Texas.


## M EMORANDUM OPINION Before Chief Justice Valdez and Justice s Rodriguez and Benavides

Memorandum Opinion by Justice Benavides By one issue, appellant Adrian Lee alleges the trial court abused its discretion by dismissing his complaint against appellee Texas Department of Criminal Justice (TDCJ

– ID ). Lee filed suit a lleging multiple violations of his rights while incarcerated including Equal P rotection violations , violation of due process , common law fraud , breach of
contract , and the enforcement of disciplin ary rules in an arbitrary and capricious manner

. We affirm.2 I. B ACKGROUND Lee is currently incarcerated in the McConnell Unit of TDCJ

- ID in Beeville. Lee filed suit pro se under c hapter 14 of the Texas Civil Practice and Remedies Code. See T EX

. C IV

. P RAC

. & R EM

. C ODE A NN

. §§ 14.001

– 14.010 (West, Westlaw through 2017 1st C.S.). In his petition, Lee claims he was given a false disciplinary case number for attempting to establish a relationship. Lee states he was found guilty of a lesser included offens e and disciplined accordingly. 1 Lee also claims he entered into a contract when he signed his disciplinary forms and TDCJ

– ID breached that contract by failing to follow rules, policy, and directives contained within the disciplinary handbook. On Ju ly 25, 2017, the Office of the Attorney General (OAG) filed an amended amicus curiae advisory brief recommending Lee ’s claims be dismis sed for failure to comply with the requirements under Chapter Fourteen of the Texas Civil Practice and Remedies Code

. See id

. The OAG recommended three grounds for dismissal under chapter 14. See id . First, the OAG alleged that Lee was not indigent and his affidavit of poverty was false. Second, the OAG alleged that Lee had failed to exhaust all administrative remedie s. Lee’s Step 2 grievance was overruled and signed on April 11, 2017, and Lee did not file suit until May 15, 2017, outside the thirty

- one - day period required by chapter 14. See id

. 14.005(b) (“A Court shall dismiss a claim if the inmate fails to file th e claim before the 31st day after the date the inmate receives the written decision from the grievance system.”); see also Wallace v. TDCJ

- ID , 36 S.W.3d 607, 610

– 11 (Tex. App.

— Houston [1st Dist.]

1 In Lee’s petition, he states he was: (1) given a more restrictive environment; (2) given a custody level of extreme; (3) denied a fair and impartial hearing by defendants by them denying witnesses; (4) denied pre - hearing due process requirements when he was charged with a new offense; (5) denied a fair and impartial hearing when given a lesser i ncluded offense; (6) denied post hearing procedural safeguards when TDCJ

– ID failed to allow him to review the hearing tapes; and was (7) denied a fair and impartial hearing when TDCJ

– ID applied disciplinary rules against him in an unfair, arbitrary, and ca pricious manner

.3

2000, pet. denied). Third, the OAG alleged that Lee’s claim s were frivolous. Lee alleged changes in his conditions within the prison system , and the OAG stated that changes in conditions do not implicate due process. See Hamilton v. Williams , 298 S.W.3d 334, 341 (Tex. App.

— Fort Worth 2009, pet. denied). The tri al court dismissed Lee ’s cause of action with prejudice and found Lee was not indigent. This appeal followed. II. D ISMISSAL OF C LAIM By his sole issue, Lee argues that the trial court abused its discretion in dismissing his claims pursuant to chapter f o urteen of the Tex as Civil Practice and Remedies C ode

. See id

. A. Standard of Review We review a dismissal of an inmate's lawsuit in forma pauperis under chapter fourteen of the civil practice and remedies code for abuse of discretion. See Harrison v. Tex. Dep ’ t of Criminal Justice

- Inst. Div. , 164 S.W.3d 871, 874 (Tex. App.

— Corpus Christi 2005, no pet.); Thomas v. Knight , 52 S.W.3d 292, 294 (Tex. App.

— Corpus Christi 2001, pet. denied)

. A trial court abuses its discretion when it acts without reference to any guiding rules or principles. Cire v. Cummings , 134 S.W.3d 835, 838

- 39 (Tex. 2004). “Chapter 14 of the Texas Civil Practice and Remedies Code governs inmate litigation when the inmate claims inability to pay costs.” Douglas v. Moffett , 418 S.W.3d 336, 338 (Tex. App.

— Houston [14th Dist.] 2013, no pet.). “This means that the requirements of Chapter 14 apply when inmates file an appeal or an original proceeding in the appellate court the same as when they file actions in the district, county, and jus tice courts.” Id

. at 339 (quoting Douglas v. Turner , 441 S.W.3d 337, 338 (Tex. App.

— Waco 2013, no pet.).4

The determination of whether a claim has an arguable basis in law “is a legal question to be reviewed de novo .” Burnett v. Sharp , 328 S.W.3d 594 , 600 (Tex. App.

— Houston [14th Dist.] 2010, no pet.); see In re Humphreys , 880 S.W.2d 402, 404 (Tex. 1993). “A claim has no arguable basis in law only if it is based on (1) wholly incredible or irrational factual allegations; or (2) an indisputably meritl ess legal theory.” Burnett , 328 S.W.3d at 600. We will affirm the dismissal if it was proper under any legal theory. See Hamilton v. Pechacek

, 319 S.W.3d 801, 809 (Tex. App.

— Fort Worth 2010, no pet.). Here, the trial court dismissed Lee’s claims with prejudice with a finding that Lee was not indigent. “A dismissal with prejudice operates as if the case had been fully tried and decided.” Id

. at 810. When reviewing whether the trial court abused its discretion by dismissing claims with pr ejudice unde r chapter 14, this Co urt should consider whether the inmate’s error could be remedied with more specific pleading; if so, a dismissal under chapter 14 is improper. Id

. B. Applicable Law and Discussion

“ The legislature enacted chapter 14 of the Texas Civil Practice and Remedies Code to control the flood of frivolous lawsuits being filed in Texas courts by prison inmates because these suits consume many valuable judicial resources with little offsetting benefits.” See id . at 809. “Chapter 14 sets forth procedural requirements an inmate must satisfy as a prerequisite to filing suit.” Id

. 1. Affidavit of Indigency Section 14.002 states that: This chapter applies only to a n action, including an appeal or original proceeding, brought by an inmate in a district, county, justice of the peace, or small claims court or an appellate court, including the supreme court or5

the court of criminal appeals, in which an affidavit or unsw orn declaration of inability to pay costs is filed by the inmate

. T EX

. C IV

. P RAC

. & R EM

. C ODE § 14.002(a). “A plaintiff may file an affidavit of indigency in lieu of paying costs.” McClain v. Terry , 320 S.W.3d 394, 397 (Tex. App.

— El Paso 2010, no pet. ) (citing T EX

. R. C IV

. P. 145). The affidavit must contain complete information as to the party’s identity, the nature and amount of governmental entitlement income, nature and amount of employment income, other income (interest, dividends, etc.), spouse’ s income if available to the party, property owned (other than homestead), cash or checking account, dependents, debts, and monthly expenses. T EX

. R. C IV

. P. 124(b). “A prisoner at a Texas Department of Criminal Justice [facility] who has no money or pro perty is considered indigent.” McClain , 320 S.W.3d at 397; Allred v. Lowry , 597 S.W.2d 353, 355 (Tex. 1980). However, “an inmate who has funds in his trust account is not indigent.” McClain , 320 S.W.3d at 397. Texas Civil Practice and Remedies Code sec tion 14.006 outlines a formula by which an inmate’s trust funds can be utilized for payment of court costs. 2 See T EX

. C IV

. P RAC

. & R EM

. C ODE A NN . § 14.006 (West, Westlaw through 2017 1st C.S.). Although Lee filed his “Declaration of Inability to Pay Court Costs” on May 16, 2017, stating he was indigent, he did not include the required printout of his trust account balance. However, on July 5, 2017, Lee filed an “Inmate Trust Account Statement” with the District Clerk’s Office. The filed statement sh ows that from November 2016 through

2 The trial court may order an inmate to pay court fees, costs, and other costs. See T EX

. C IV

. P RAC

. & R EM

. C ODE A NN . § 14.006 (a) (West, Westlaw through 2017 1st C .S.) . The formula considers an amount equal to the lesser of either 2 0 percent of the last six months of deposits in the inmate’s trust account or the total amount ordered. See id .( b). The following month, the amount drops to ten percent of that month’s deposits in the trust account or the total unpaid balance. See id

. (c ). This formula continues until the inmate is released from confinement. See id

. (d).6

April 2017, Lee had funds in his inmate trust account. Since he had money available in his trust account, Lee is not considered indigent. See McClain , 320 S.W.3d at 397. The trial court properly dismissed Lee’s claim based on the fact his affidavit of indigency was
untrue. See T EX

. C IV

. P RAC

. & R EM

. C ODE A NN . § 14.003. We overrule Lee’s sole issue. 3
III. C ONCLUSION We affirm the trial court’s dismissal of Lee’s claim.

GINA M. BENAVIDES, Justice

Delivered and filed the 12th d ay of July , 201 8

.

3 Even if Lee could correct any defect in his filing, we find the trial court properly dismissed his suit with prejudice. See T EX

. C IV

. P RAC

. & R EM

. C ODE A NN

. § 14.003(a). Lee’s allegations were frivolous and had no arguable basis in law. See id .; see also Burnett v. Sharp , 328 S.W.3d 594, 600 (Tex. App.

— Houston [14th Dist.] 2010, no pet.) (describing what qualifies as “no arguable basis in law”). Lee’s arguments centered around changes in his conditions within the prison and therefore do not implicate a due process challe nge. See Hamilton v. Williams , 298 S.W.3d 334, 341 (Tex. App.

— Fort Worth 2009, pet. denied).