NO. 07-01-0323-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

JUNE 13, 2002

______________________________

CURTIS R. FRANCIS, APPELLANT

V.

GARY JOHNSON, ET AL., APPELLEES

_________________________________

FROM THE 12TH DISTRICT COURT OF WALKER COUNTY;

NO. 19,568; HONORABLE ERWIN ERNST, JUDGE

_______________________________

Before BOYD, C.J., and REAVIS and JOHNSON, JJ.

This is an appeal from the trial court’s dismissal of appellant Curtis R. Francis’s suit

against appellees Gary Johnson, Edward Jones, Lonnie Johnson,Kevin Sherman, Samuel

Flowers, and Michael Jones. In his suit, appellant, an indigent inmate of the Institutional

Division of the Department of Criminal Justice, sought recovery for compensatory and

punitive damages for injuries he allegedly suffered at the hands of, or through the

instrumentality of, appellees. The trial court dismissed appellant’s suit for failure to comply
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with sections 14.004 and 14.005 of the Texas Civil Practice and Remedies Code. We

affirm.

Procedural History

The alleged basis of appellant’s suit was that he suffered injuries while being

transferred from one unit of the Department of Criminal Justice to another unit. He alleged

that his injuries were not only the result of negligent acts on the part of appellees, but were

also the result of their “wanton, willfull [sic], and reckless disregard for Plaintiff’s rights,

safety, and welfare.” As we have noted, the trial court dismissed his case because of his

failure to comply with sections 14.004 and 14.005 of the Civil Practice and Remedies

Code.

Statutes

Effective June 8, 1995, the legislature enacted Chapter 14 of the Civil Practice and

Remedies Code entitled “Inmate Litigation.” Tex. Civ. Prac. & Rem. Code Ann. § 14.001-

014 (Vernon Supp. 2002). With the exception of suits brought under the Family Code,

Chapter 14 applies to suits such as this one brought by an inmate who has filed “an

affidavit or unsworn declaration of inability to pay costs.” Id. § 14.002. Section 14.003

allows a court to dismiss a suit before or after process is served if the court finds 1) the

allegations of poverty in the affidavit or unsworn declaration are false, 2) the claim is

frivolous or malicious, or 3) the inmate filed an affidavit or unsworn declaration required by

Chapter 14 that the inmate knew was false. Id. § 14.003(a). In determining whether a
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claim is frivolous or malicious, the court may consider whether 1) the claim’s realistic

chance of ultimate success is slight, 2) the claim has no arguable basis in law or in fact,

3) it is clear that the party cannot prove facts in support of the claim, or 4) the claim is

substantially similar to a previous claim filed by the inmate because the claim arises from

the same operative facts. Id. § 14.003(b).

Section 14.004 requires that an inmate file a separate affidavit or declaration

identifying each prior suit brought by him, specifying the operative facts, the case name,

the cause number, the court in which it was brought, the names of the parties, and stating

the result of the suit. Id. § 14.004(a). This section also requires that the inmate file a

certified copy of his trust account statement from the Department of Criminal Justice. Id.

§ 14.004(c). Section 14.005 applies to complained of acts that are subject to the statutorily

required grievance procedures set up by the Department of Criminal Justice. Id. § 14.005;

Tex. Gov’t Code Ann. § 501.008 (Vernon 1998).

The purpose of Chapter 14 of the Code was defined in Hickson v. Moya, 926

S.W.2d 397 (Tex.App.--Waco 1996, no writ), as “to control the flood of frivolous lawsuits

being filed in the courts of this State by prison inmates, consuming valuable judicial

resources with little offsetting benefit.” Id. at 399. The court went on to opine that the

supplemental filing required by section 14.004 was designed to assist a trial court in

making the determination that the legislature called upon it to make and is an essential part

of the process by which courts review litigation. Id. The court additionally reasoned that,

because a trial court can dismiss a cause when an inmate filed a false affidavit or
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declaration, the same policy allows a court to dismiss a suit that is filed without the affidavit

or declaration. Id.

Standard of Review

The standard of review for a dismissal such as this is whether the trial court abused

its discretion. Id. at 398-99. The test for an abuse of discretion is whether the court acted

without reference to any guiding rules and principles. Downer v. Aquamarine Operators,

Inc., 701 S.W.2d 238, 241-42 (Tex. 1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279,

90 L.Ed.2d 721 (1986) (citing Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d

124, 126 (1939)). See also Goode v. Shoukfeh, 943 S.W.2d 441, 446 (Tex. 1997). It is

the burden of the complaining party to show that the trial court’s dismissal was arbitrary or

unreasonable in the light of all the surrounding circumstances. It is also established that

a pro se litigant is held to the same standards as licensed attorneys and must comply with

applicable laws and rules of procedure. See Mansfield State Bank v. Cohn, 573 S.W.2d

181, 184-85 (Tex. 1978); Holt v. F.F. Enterprises, 990 S.W.2d 756, 759 (Tex.App.--

Amarillo 1998, no pet.).

Constitutionality

Appellant initially contends that Chapter 14 amounts to an arbitrary and

unreasonable interference with his access to open courts guaranteed by article 1, section

13 of the Texas Constitution. The “open courts” provision embodies at least three separate

constitutional guarantees: 1) courts must actually be open and operating; 2) the legislature
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may not impede access to the courts through unreasonable barriers financial or otherwise;

and 3) the legislature may not abrogate well-established common law causes of action

unless the reason for its action outweighs the litigant’s constitutional right of redress.

Central Appraisal Dist. of Rockwall County v. Lall, 914 S.W.2d 686, 689 (Tex. 1996). It is

the second of these with which we are concerned here.

In passing upon the constitutionality of a statute, we must begin with a presumption

of validity. Liggett v. Blocher, 849 S.W.2d 846, 851 (Tex.App.--Houston [1st Dist.] 1993,

no writ). An intermediate court should not hold a statute unconstitutional unless the

grounds that furnish a basis for such a holding are clear and reasonably certain. Id. For

the purpose of this discussion, we will assume arguendo that appellant’s pleadings are

otherwise sufficient to state a cognizable cause of action. We have noted above the

purpose of the statute, so it is not necessary to reiterate that purpose other than to say it

was intended to obviate frivolous lawsuits filed by inmates which otherwise would flood the

courts. The statute is a procedural requirement that does not actually restrict an inmate’s

right to file a bona fide suit. Rather, the information required by the statute is to assist

courts in determining whether an inmate’s suit is frivolous. Thomas v. Wichita General

Hosp., 952 S.W.2d 936, 940 (Tex.App.--Fort Worth 1997, pet. denied). It does not

authorize the dismissal of meritorious claims. That being true, the statute does not violate

either article 1, section 15 of the Texas Constitution, nor the first amendment of the federal

constitution, and it satisfies the compelling state interest in ensuring that limited judicial

facilities are efficiently used and remain open for the disposition of valid disputes.
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Discussion

One of the main purposes of the statutory requirements for an inmate affidavit is to

enable a court to determine not only if a claim has an arguable basis in law, but also to aid

it in determining if it is substantially similar to a previous claim or claims filed by the inmate

and arises from the same operative facts. See Bell v. Texas Dept. of Criminal JusticeInstitutional Div., 962 S.W.2d 156, 157-58 (Tex.App.--Houston [14th Dist.] 1998, pet.

denied). Operative facts, within the purview of the statute, must include the alleged factual

situations that gave rise to the various claims and a reasonably detailed description of

those facts. Without that type of information, a trial judge cannot determine if the suit is

so substantially similar to one previously filed by the inmate as to be either malicious or

frivolous. The failure to list the operative facts of prior actions is sufficient to justify the

dismissal of an inmate suit. Clark v. Unit, 23 S.W.3d 420, 422 (Tex. App.--Houston [1st

Dist.] 2000, pet. denied).

In this case, appellant listed five previous filings. In four of the listings, he included

the dates the suits were filed, the names of the defendants, the cause numbers, and the

disposition or non-disposition of the suits. As the “operative facts” in each case he merely

listed the legal theory he alleged in filing each suit. This sort of allegation falls short of the

type of information required by the statute. See White v. State, 37 S.W.3d 562, 563-64

(Tex.App.--Beaumont 2001, no pet.).
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Section 501.008 of the Government Code provides for an inmate grievance system.

See Tex. Gov’t Code Ann. § 501.088 (Vernon 1998). That section provides an inmate may

not file a claim in state court regarding operative facts for which the Department of Criminal

Justice grievance system provides the exclusive administrative remedy until the inmate

receives a written decision issued by the highest authority provided in the grievance

system, or the 180th day after the date the grievance is filed if the inmate has not received

a written decision. See also Tex. Civ. Prac. & Rem. Code Ann. § 14.005(a) (Vernon Supp.

2002). An inmate who files a claim that is also subject to the grievance system must file

an affidavit stating the date a grievance was filed and the date a written decision was

received, together with a copy of the written decision. If he fails to file a claim within 31

days of receiving a final decision from the grievance system, the trial court must dismiss

the suit. Id. § 14.005(b). If a claim is filed before the grievance proceeding has run its

course, the trial court must stay the suit for at least 180 days to permit completion of the

proceeding. Id. § 14.005(c).

The purpose of section 14.005 is to allow the trial court to ensure that an inmate

proceeding in forma pauperis has utilized the Department of Criminal Justice if it is

applicable to his claim and to dismiss a suit when it becomes clear that the inmate has

failed to provide the information the statute requires. Smith v. Texas Dept. of Criminal

Justice - Institutional Div., 33 S.W.3d 338, 341 (Tex.App.--Texarkana 2000, pet. denied).

In this case, appellant admitted that he was involved in such a grievance

proceeding. He failed to comply with the statute and did not file copies of his grievances
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with his petition, nor has he yet filed any such copies. Moreover, at the time of the hearing

on appellees’ dismissal motion, he admitted that the grievance was still pending when he

filed this lawsuit. Even so, appellant points to the provision in section 14.005(c) that if the

suit is filed before the grievance proceeding is complete, the court shall delay the

proceeding for a period not to exceed 180 days to permit completion of the grievance

proceeding. He posits that because the trial court never entered a specific order delaying

the proceeding for the 180-day period, his failure cannot be a basis for dismissal. We

disagree. As we noted, the statute specifically provides that the purpose of the delay order

is to permit completion of the grievance proceeding. Appellant’s suit was filed on August

15, 1996, nearly five years before the June 5, 2001 dismissal of the suit.

In sum, the trial court did not abuse its discretion in dismissing appellant’s suit and

its judgment doing so is affirmed.

John T. Boyd

 Chief Justice

Do not publish.