IN THE

TENTH COURT OF APPEALS

No. 10-14-00191-CV

BRENT ALAN MCLEAN,

Appellant

v.

BRAD LIVINGSTON, ET AL.,

Appellee

From the 18th District Court

Johnson County, Texas

Trial Court No. C201400101

D I S S E N TI N G O P I N I O N O N R E H E A R I N G

In a memorandum opinion, we dismissed the appeal of Appellant Brent Alan 

McLean, a pro se state-prison inmate, because he failed to comply with Chapter 14 by 

not filing an affidavit or declaration “relating to previous filings” or a certified copy of 

his inmate account statement. McLean v. Livingston, No. 10-14-00191-CV, 2014 WL 

3559279 (Tex. App.—Waco July 17, 2014, no pet. h.); TEX. CIV. PRAC. & REM. CODE ANN. 

§ 14.004(a), (c) (West Supp. 2014) (requiring inmate to file affidavit or declaration 
McLean v. Livingston Page 2

“relating to previous filings,” accompanied by certified copy of inmate’s account 

statement). 

In a footnote, we noted the timetable for McLean to file a motion for rehearing, 

essentially inviting him to cure his deficiencies so that his appeal might be reinstated. 

McLean, 2014 WL 3559279, at *1, n.1. McLean did just that; he filed a motion for 

rehearing and an amended notice of appeal that included his declaration of previous 

filings and a certified copy of his inmate account statement. Despite McLean’s curing 

his deficiencies, the majority now denies McLean’s motion for rehearing.

Plainly, Chapter 14 now applies to appeals and original proceedings. TEX. CIV.

PRAC. & REM. CODE ANN. § 14.002(a) (West Supp. 2014); Douglas v. Turner, 441 S.W.3d 

337, 338 (Tex. App.—Waco 2013, no pet.). But until now, we have been consistently 

allowing inmates to cure their Chapter 14 deficiencies on rehearing and granting their 

motions for rehearing after, as we had in this case, essentially invited them to do so.

1 

E.g., Atkins v. Herrera, No. 10-13-00283-CV (Tex. App.—Waco Feb. 6, 2014, order) (not 

designated for publication); Keeter v. State, No. 10-13-00310-CV (Tex. App.—Waco Mar. 

13, 2014, order) (not designated for publication); Mahuron v. TDCJ, No. 10-14-00116-CV 

(Tex. App.—Waco Aug. 14, 2014, order) (not designated for publication); see also Reed v. 

Ford, No. 10-13-00279-CV, 2013 WL 5290112, at *2, n.2 (Tex. App.—Waco Sept. 19, 2013, 

no pet.) (including same footnote with deadline for motion for rehearing).

 

1

I now believe that the correct and the more judicially efficient practice would be to notify the appellant 

of the section 14.004 deficiency and allow the appellant an opportunity to cure before dismissal. See TEX.

R. APP. P. 44.3; Higgins v. Randall County Sheriff's Office, 193 S.W.3d 898 (Tex. 2006); Verburgt v. Dorner, 959 

S.W.2d 615, 616-17 (Tex. 1997).
McLean v. Livingston Page 3

Moreover, in the trial court, an inmate can correct a section 14.004 deficiency by 

amendment on rehearing. See Brown v. Lubbock Cty. Comm’rs Ct., 185 S.W.3d 499, 503 

(Tex. App.—Amarillo 2005, no pet.). Because the majority in this appeal denies McLean 

the opportunity to correct his section 14.004 deficiency on rehearing, I respectfully 

dissent to the denial of his motion for rehearing.

REX D. DAVIS

Justice

Delivered and filed January 22, 2015