NO. 07-03-0409-CV IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL D AUGUST 31, 2004

______________________________ RANDY JACKSON, APPELLANT

V. THE TEXAS DEPAR

TMENT OF CRIM INAL JUSTICE, APPELLEE

_________________________________ FROM THE 1 08TH DI STRICT COURT OF PO TTER CO UNTY; NO. 91,252-E; H ONORABLE ABE LO PEZ, JUDGE

_______________________________ Before QUINN and REAVIS an d CAMPBELL, JJ.
MEMORA NDUM OPIN ION Appellant

Randy Jackson challenges the trial court’s order dismissing his tort claim against the Texas Department ofCriminal Justic e for fai lure to comply with the requirements

of chapter 14 of the Texas Civil Practice and Remedies Code. Presenting two points of error , he contends the t rial court abused its discretion in dismissing his case2

(1) by applying chapter 14 in an unreasonable manner , and (2) by failing to ab ide b y guiding judicial principles of eq uity. We reverse an d remand.
Jackson filed his ori ginal compl aint and other necessary doc um ents on July 30, 2003, alleging he sustained personal injuries fro m se curity personnel acti ng wit hin the scope of theiremployment w ith the Texas Depar tment of Criminal Justice. Sp ecifically , he contends he sustained i njuries from hav ing to sit on the concrete floor

of the dayroom for extende d tim e periods because only 24 seats were provided for 48 p risoners. He described the floor as “d irty from t rash, food partic les, bever age spill s, and contaminated and urine-infested puddles.” Healso alleg ed that the Depart ment’s employe es threatened disciplinaryaction for non-complianc e. On August 11, 2003, the trial court sua sponte signed an order dismissing Jackson’s suit for failure to comply with chap ter 14 of the Texas Civil Practice and Remedies Code. By two points of error, Jackson contends th e tria l cour t abused its discretion in dismissing hissui t. P rio r tosubm iss ion of this appeal, the Office of the Texas At torney General notified us by

letter that

it would not be filing a brief because it did not r epresent any party to t his appeal, but did offer to prov ide an amicus curiaeupon request. Followi ng our request, the Attorney General conclude d in its brief that the trial court properly dismissed Jackson’s suit for failure to comply with section 14.004(a)(2)(A) because he did not“clearly

list the operative facts for his prev ious lawsuit” making it difficult to determi ne if the current lawsuit is substantially similar to his prev ious suit. Jackson filed a reply br ief3

responding to the Attorney General’s ar

gument again asserting abuse of discretion by the trial cour t in dismiss ing h i s s u i t

. We agree w ith Jackson’ s contentions an d disagree with the conclusion reached by the Attorney General.
In reviewi ng the dism issa l of a claim unde r cha pter 14 of the C ode , we ap ply t h e abuse of discretion standard. Mc Collum v. Mt. Ararat Baptist Chur

ch, 980 S.W.2d 535, 536 (Tex.App.–Ho uston [14th Dist.] 1998, no pet.); see also Hickson v . Moya, 926 S.W.2d 397, 398 (Tex.App.–W aco 1996, no wr it). Abuse of di scretion is determined by wheth er the court acted without r eference to any gui ding rules or princi ples. Dow ner v. Aq uamarine Operators, Inc. 701 S.W .2d 238, 241-42 (Te x. 1985). The mere fact that a trial judge may decide a matter wi thin his dis cretionary authority

in a different manner

than an appellate judge does not demonstrate that an abuse of discreti on has occurr ed. Id

. Jackson’s suit is g overned by the rul es set forth in cha pter 14 of the Code. Thompson v. Hender

son, 927 S.W.2d 323, 324 (Tex.App. –H ouston [1st Di st.] 1996, no writ). The purpose of chapter 14 is to assist the trial court in determining whether a suit is maliciousor frivol ous under secti on 14.003(a). Hickson , 92 6 S.W.2d at 399. Thus, an inmate’s suit m ay be dism issed wi thout a hearing when he fails to comply w ith the requirements

of section 14.004. S ee W il liams v. Brown, 33 S .W.3d 410, 412 (Tex.App.–Hous ton [1st Dis t.] 2000, no pet.)

. The t rial court ’s dismissal order does not indicate nor recite in what respect Jackson failed to comply with Ch apter 14. Thus, w e wil l review all doc uments filed by4

Jackson in pursuitof

his claim mi ndful that pro se pleadings a re evaluate d by less stringent standards than those applied to formal pleadings fil ed by attorne ys. Hai nes v. Ker ner, 404 U.S. 519 , 520, 92 S.Ct. 5 94, 30 L.Ed.2d 652 ( 1972); see also Giddens v. Brooks, 92 S.W.3d 878, 880 (Tex.App.–Be aumont 2002, pe t. denied). Section 14.00 4 re q uires an inmate who files an affidavit of inability to pay costs to file a se parate affid avit of every suit filed pro se without r

egard to w hether he was an inmate at the time other than suits fil ed under the Texas Fami ly Code. § 14.004(a)(1) . Pursuant to s ubsection (a)(2)the affidavit shall describe each suit and (A) state the operative f acts, (B) list the case name, cause number, and court in which s uit was fil ed, (C) id entify each par ty, and (D ) state the result of the suit, including whether it was dismissed as frivolous or malici ous. Finall y, the affidavit must be accompanied by a certi fied copy of the i nmate’s trust account statement.

By his affidavit of previous filings, Jackson stated that he had f iled a personal injury suitagainst the Texas Depart mentof Criminal J ustice for “c uts caused to se veral ar eas of my body by the condi tion and u se of ide ntification armban ds placed on me by the defendant.” He further pr ovided the cause number, court in w hich suit w as filed, and that the case was still pending at that time. He did not, however, provide t he name of the case.
In Gowan v . Texas Depar tment of Crimina l Justice, et al. , 99 S.W.3d 319, 322 (Tex.App.–Texarkana 2003, no pet.), t he inmate’s failur e to provide t he cause number of a previoussuit did not render the affidavit defecti ve because i t was appar ent from the5

record that the substance of the previo us suit and the subject acti on were di fferent and thus constituted s ubstantial compl iance wi th the requir ements of section 14. 004. Althou gh the courtin Gowan found substantial compliance w ith the requir ements of section 14.00 4, itneverthele ss concluded t he trial cour t had not abused its discr etion in dismi ssing the inmate’s suit because t he affidavit did not disclose whether theinmate had filed any other pro se suits against other defenda nts leaving the trial courtin doubt about the extent of his pr evious pro se filings. Id . at 322. We decline to follow the Gowan dec ision wh ich, i n effect, adds an additional statut ory requirement to section 14.004 which the Legislature did not include.
Jackson’s affidavit contai ns all the requirements of section 14.004( a)(2) except the case name. However , bec ause the affidavit states that Jac kson filed suit against the Texas Depart ment of

Criminal Justice, it

was sufficien tto identify h im as the plain tiff and the Department as t he defendant and thus cons titutes substantial compliance with sec tion 14.004(a)(2)(B).
The Atto rney G ene ral co nten ds th at Ja ckso n did not p rovid e suf fici ent o pera tive facts to satisfy subsection (a )(2)(A) and apprise the trial court of any similarity to his previously

filed suit. This contention fails . Jackson des cribed his previous suit as one for cuts caused to several areas of hi s body cause d by the condi tion and use of identi fication armbands whi le his

prese nt sui t is for

pain i n his l ower

back, gluteus ma ximus , and legs6

caused by sitti ng on concrete floor for extended per iods of time. From thes e facts allege d, it is apparen t that Jackson’ s present sui t was not s imilar to th e one previ ously filed.
As required by section 14.004(c), th e clerk’srecord contai ns a certified copy of Jackson’s trust account statement. Hav ing rev iewed all the requir ements of section 14.004, we concl ud e Jac kson’s affidavi t relating to previ ous filings complies w ith all the statutory requirements.
Section 14.005(b) of the C ode authoriz es a trial court to dismiss an inmate’s claim if he fails to exhau st his adm inist rative remedies through the grievance system. The clerk’s record contains Jack

son’s Step 1 and Step 2 griev ance offender

forms in which he details his complaints

regarding his curre ntsuit, as w ell as copie s of the wri tten responses from the grievance system. See § 14.005(a)(1) & (2).
The record before us

demonstrates that

Jackson complied with all the requir ements of sections 14.004an d 14.005 in filing hi s personal i njury act ion. We conclude the trial court abused its di scretion in dismiss ing his s uit for failure to compl y wi th chapter 14 of the Code. Points of error one and tw o are sustained

. We have not overlooked the ar gument of the Att orney Gener al that the dis missal order was proper

under s ection 14.003(a) (2) whi ch authoriz es a trial court to dismi ss an inm a te’s action if it i s frivolous or maliciou s or under sec tion 14.003(b)( 2) because the claim has no arguable basis in law or in fact. Here, however, the or der of dismissal does7

notindicate that it was based upon a dete rmination by the tria l court th at the action w as frivolousor maliciou s or that the claim had no ar

guable basis

in law or in fact. See Gaston
v. Coughlin, 249 F.3d 156, 164-66 (2d Cir. 2001) (stati ng that fecesand urine on a prison fl oor over an extended period of time when known to prison of ficial may constitute cr ue l and unusual punish ment remediable by suit).
Without expressi ng an y o pinion as to themerits of the ar gument of the Attorne y General, the judgment is reversed and the caus e is remanded to t he trial cour t for further proceedings.
Don H. Reavis Justice