NO. 07-09-00316-CV 

IN THE COURT OF APPEALS 

FOR THE SEVENTH DISTRICT OF TEXAS 

AT AMARILLO 

PANEL B 

JULY 12, 2010 

WAYNE ERNEST BARKER, APPELLANT 

v. 

RICHARD WATHEN AND DANA BUTLER, APPELLEES 

 FROM THE 72ND DISTRICT COURT OF LUBBOCK COUNTY; 

NO. 2009-547,548; HONORABLE RUBEN GONZALES REYES, JUDGE 

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ. 

MEMORANDUM OPINION 

Appellant, Wayne Ernest Barker (Barker), appeals the trial court’s dismissal of 

his lawsuit against appellees, Richard Wathen and Dana Butler (Wathen and Butler), 

pursuant to Chapter 14 of the Texas Civil Practices and Remedies Code. We affirm. 

Factual and Procedural Background 

 Barker is an inmate incarcerated in the Institutional Division of the Texas 

Department of Criminal Justice (ID-TDCJ). On May 20, 2009, Barker filed a petition 

alleging that he was seeking a judicial determination of the constitutionality of his 

placement in what Barker calls “Administrative Segregation” while an inmate at the 
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Montford Unit of the ID-TDCJ. Barker’s petition was accompanied by a motion to 

proceed without prepayment of costs that contained an unsworn declaration of 

indigence. 

On June 15, 2009, Barker filed another document that was styled “Objective 

Facts Premising Section 1983 State Complaint.” This document was filed in the same 

cause number as the original petition and, as he did with his original petition, Barker 

included a motion to proceed without payment of costs and an unsworn declaration of 

inability to pay costs. The factual basis for the second document appears to be the 

same conduct of which Barker complains in his original petition: placement in what he 

describes as “Administrative Segregation.” Concurrent with the filing of the second 

document, Barker filed a document which he designates as an unsworn declaration of 

compliance with section 14.005. See TEX. CIV. PRAC. & REM. CODE ANN. § 14.005 

(Vernon 2002).1

 Additionally, Barker filed a second accompanying document which 

purported to be an unsworn declaration of prior suits. See § 14.004. 

On July 6, 2009, Wathen and Butler filed an answer that contained a general 

denial and a motion to dismiss the case because the claims lacked an arguable basis in 

law. See § 14.003(a)(2), (b)(2). Wathen and Butler’s motion also sought to dismiss 

Barker’s lawsuit for failure to meet the requirements of sections 14.004, 14.005 and 

14.006. Section 14.004 requires an inmate who files an affidavit or unsworn declaration 

of inability to pay costs to also file a separate affidavit or declaration containing a 

number of historical statements regarding the inmate’s history of filing other litigation. 

 1

 Further reference to the Texas Civil Practice & Remedies Code shall be by 

reference to “section(s) ___” or “§ ____." 
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See § 14.004. Section 14.005 requires the inmate to utilize the grievance procedure 

outlined in the Government Code. See § 14.005(a) (citing TEX. GOV’T CODE ANN. § 

501.008(d) (Vernon 2004)). Section 14.006 requires the inmate to provide a copy of his 

inmate trust account. See § 14.006(f). 

On July 21, 2009, Barker filed a supplemental petition which cited some new 

factual material but still presented the same basic complaint as was present in the first 

two filings. Specifically, Barker continued to complain about the “Administrative 

Segregation” rules of the ID-TDCJ. On July 23, 2009, Barker filed a “reply and rebuttal” 

to Wathen and Butler’s motion to dismiss. 

Without conducting a hearing, the trial court dismissed Barker’s actions on 

September 9, 2009, without prejudice. The trial court’s order stated that Barker’s 

“claims lack an arguable basis in law and are dismissed under Tex. Civ. Prac. & Rem. 

Code § 14.003.” The trial court additionally found that Barker had failed to comply with 

sections 14.004, 14.005, and 14.006 of the Texas Civil Practice & Remedies Code. 

This appeal followed. Barker’s brief argues that the trial court “wrongly dismissed the 

case as frivolous because of negligence and misallocation of the reply and rebuttal by 

the District Clerk.” Disagreeing with Barker’s allegations, we affirm the decision of the 

trial court. 

Standard of Review 

 As an appellate court, we review the trial court’s dismissal of inmate litigation 

wherein the inmate is proceeding in forma pauperis under an abuse of discretion 

standard. See Hickson v. Moya, 926 S.W.2d 397, 398 (Tex.App.—Waco 1996, no writ). 
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A trial court abuses its discretion when it acts without reference to any guiding rules or 

legal principles. See Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 

852, 856 (Tex. 2009). 

Analysis 

 Barker’s sole issue is that he filed a “rebuttal and reply” to Wathen and Butler’s 

answer and motion to dismiss. Further, Barker alleges that the trial court was not 

allowed an opportunity to review and consider the “reply and rebuttal” due to the 

negligence of the District Clerk of Lubbock County. Barker’s contention is wrong for at 

least two reasons. First, the record clearly demonstrates that Barker’s “reply and 

rebuttal” was filed with the District Clerk on July 29, 2009. Therefore, the trial court had 

the opportunity to review the “reply and rebuttal” before it issued its order of dismissal 

without prejudice on September 9, 2009. Barker has cited us to nothing but his 

assertions that the document was not reviewed by the trial court prior to the dismissal 

being entered. Without some citation to the clerk’s record that would indicate that the 

document complained of was not filed as reflected in the record, Barker’s naked 

assertions present nothing for review. See Brooks v. City of Dallas, 168 S.W.3d 370, 

372 (Tex.App.—Dallas 2005, no pet.) (citing Thedford v. Union Oil Co., 3 S.W.3d 609, 

615 (Tex.App.—Dallas 1999, pet denied)). 

Second, Barker contends that the “reply and rebuttal” document refutes Whalen 

and Butler’s reliance on Bohannan v. Texas Department of Criminal Justice, 942 

S.W.2d 113, 117 (Tex. App.—Austin 1997, writ denied) (explaining that section 

2001.226 of the TEX. GOV’T. CODE ANN. (Vernon 2008) provides that the Administrative 
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Procedures Act does not apply to a rule or internal procedure of the Texas Department 

of Criminal Justice). However, Barker cites no case law to support his position. 

Further, Bohannan is still the operative law and has not been overruled. The trial court 

followed the existing guiding rules and legal principles and, therefore, did not abuse its 

discretion. See Columbia Rio Grande Healthcare, 284 S.W.3d at 856. 

Conclusion 

 Because the trial court followed the correct law, it did not abuse its discretion by 

dismissing Barker’s lawsuit. We overrule his sole issue and affirm the judgment of the 

trial court. 

 Mackey K. Hancock 

 Justice