NO. 07-01-0323-CV IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL A JUNE 13, 2002

______________________________ CURTIS R. FRANCIS, APPELLANT

V. GARY JOH NSON, ET AL., AP PELLEES

_________________________________ FROM THE 12 TH DISTRIC T COURT O F W ALKER CO UNTY; NO. 19,568; HON ORABLE ERWIN ERNST, JUDG E

_______________________________ Before BOYD, C.J., and REAVIS an d JOHNSON, JJ.
This is an appeal from the trial court’s dism issal of appellant Curtis R. Francis’s suit against appellees Gar

y Johnson, Ed ward Jones , Lonnie John son, Kevin Sherman, Samuel Flowers, and Michael Jones. In his suit , appellant, an i ndigent inmate of the Instit utional Divisi on of th e De part ment of Cri minal Justice, sought recovery for compensatory and puniti ve damages for inj uries he all egedly s uffered at the hands of, or t hrough the instrumentali ty

of, appellees. The trial court dismissed appellant’s suit for failure tocomply2

with sections 14.00 4 and 1 4

. 0 0 5 o f t h e T e x a s C i v i l P r a c t i c e a n d R e m e d i e s C o d e . We affirm. Procedural History
The alleged basis of appellant’s suit was that he s uffered injuries w hile being transferred from one unit of the Depa rtment of Crimin al Justice to another unit. He allege d thathis 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 r eckless disregard for Plaintiff ’s rights, saf ety, and we lfa re.” A s we have noted, the trial court dismissed his case because of his failure to comply w ith sections14.004 and 14.0 05 of the Civi l Practiceand Remedies Code. Statutes
Eff ecti ve June 8, 1995, the l egislatur e enacted Chapter

14 of the Civi l Practiceand Remedies Code entitled “Inmate Litigation .” Tex. Civ . Prac. & Rem. Code Ann. § 14.001- 014 (Vernon Supp. 200 2). With the exception of sui ts brought un der the Fam i ly Code, Chapter 14 applies to suits su ch as t his one broug ht by an inmatewho has fil ed “an affidavit or unsworn declaration of inability to pay co sts.” Id . § 14.002. Secti on 14.003 allo ws a court to di smiss a suit before or after pro cess is ser ved if the cour

t finds 1) the alleg ations of poverty in the affidavit or unsworn declaration are false, 2) the claim is frivolousor maliciou s, or 3) theinmate filed an af fidavit or unsworn declaration required b y Chapter 14 that the inmate k new was false. Id . § 14. 003(a). In determining whether a3

claim is f rivolous or malicious, the court may consider whether 1) the claim’s realistic chance of ultimate s uccess is s light, 2) the clai m has no arguable bas is in law or in fact, 3) it is cl ear that the par ty can not pro ve facts in support of the claim , or 4) the claim is substantially similar to a previousclaim filed by the inmate because the claim ari ses from the same operative facts. Id. § 14.003(b).
S ection 14.004 requi res that an inmate file a separate affidavit or dec laratio n identifying each prior suit brough t by him, specifying the operative facts, the case name, the cause number, the court in which i t was bro ught, the names of the parties, and s tating the result of the su it. Id. § 14.004(a). This section als o requiresthat the inmate fil e a certified copy of his t rust account s tatement from the Depar tment of Criminal Justice. Id. § 14.004(c). S ection 14.005 appl ies to complai ned of acts that are subject to the statutorily required grievance proceduresset up by the Department of C riminal Jus tice. Id . § 14.005; Tex. Gov’t Code Ann. § 501.008 (Verno n 1998).
The purpose of Chapter 14 of the Code was d efined in Hickson v. Moya , 926 S.W.2d 397 (Tex.App.--W aco 1996, no wr it), as “to control the flo od of frivolouslawsuit s being file d in the court s of t his State by pris on inmates, consumi ng valuabl e judicial res ources with little offsetting benef it.” Id . at 399. The court went on to op ine that t h e supplemental filing req uired by s ection 14.004 was designed to assist a trial court in making the determinati on that the leg islature ca lled upon it to make and is an essenti al part of the process by whi ch courts r eview litigati on. Id . The court additi onally r easoned that, because a trial court can dismiss a cause whe n an inmate filed a fals e affidavit or4

declaration, the same policy allows a court to dismiss a suit that is filed without the af fidavit or declarati on. Id.
Standard of Revi ew The standard of review for a dismissal such as this is whether the trial court abused its discretion

. Id . at 398-99. The tes t for an abuse of discret ion is w hether the court acted without reference to any gui ding rules and principl es. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985), cert. denied, 476 U.S. 1159, 10 6 S.Ct. 2279, 90 L.Ed.2d 721 (1986) ( citing Craddock v. Sunshine Bus Li nes , 134 Tex. 388, 133S.W.2d 124, 126 (1939))

. See also Goode v. Shoukfeh, 943 S.W.2d 441, 446 (Tex. 1997). It is the burden of the complai ning party to show that the trial court’s dismissal was arbi trary or unreasonable in the lig ht of all the surrounding circumstances. It is als o established t hat a pro se li tigant

is hel d to t he sa me st and ards as lic ense d att orne ys and must comply with applicable laws and rules of procedur e. See Mansfield State Bank v. Cohn , 573 S.W.2d 181, 184-85 (Tex. 1978); Holt v. F.F . Enterpris es, 990 S .W .2d 756, 759 (Tex .App

. -- Amarillo 1998, no pet.). Constitutional ity Appellant

initiall y conten d s that Chapter 14 amounts to an arbi trary and unreasonable interference with his access to open courts guaranteed by article 1, section 13 of the Texas Cons titution. The “open courts ” provi sion embodiesat least thr ee separate constitutional guarantees: 1) courts mus t actually be open and operating ; 2) the legislature5

maynot imp ede acc ess to th e courts through unreasonable barriers financial or o therwis e; and 3) the leg islature may not abrogate w

ell-es tablishe d common law causes of action unless the reason for its action outweighs the litigant’s constitut ional right o f redress. Central Appraisal Dist. of Rockwall County v. Lall , 914 S.W .2d 686, 689 (Tex. 1996 ). It is the second of these w ith whic h we are concerned here.
In passing upon the constituti onality of a s tatute, we mus t begin w ith a presumpti on of validit y. Liggett v. Blocher, 849 S.W.2d 846, 851 (Tex.App.-- Houston [1stDist.] 1993, no writ) . An intermedi ate court shoul d not ho ld a statute unconsti tutional unles s the grounds that furnish a basis fo r such a holding ar e clear and r

easonably ce rtain. Id. For the purpose of this di scussion, w e will assume arguendothat appellant’ s plead in gs are otherwise sufficient to statea cogniz able cause of action. We have noted above the purpose of

the statute, so it is not necessary toreiterate t hat purpose other than to say

it was intended to obv iate frivol ous lawsuit s filed by inmates whi ch otherwi se would flood the courts. The statute is a procedural requirement that does no t actually restrict an inmate’s right to fi le a bona fid e suit. Rather, the informatio n required by the statute is to assist courts in determinin g wheth er an inmate ’s suit is frivolous. Thomas v. Wichita General Hosp. , 952 S.W.2d 936, 940 (Tex.Ap p . - - F o rt Wo rth 1997, pet. deni ed). It does not auth orize the dismissal of meritoriousclaims. That being tr ue, the statute does not viola te either article 1, section 15 of the Tex as Constituti on, nor the firs t amendment of the federal constitution, and it

satisfies th e compel ling state inter est in ensur ing t hat li mi ted jud icial facilities are efficien tly used and remain open fo r the disposition of valid disputes.6 Discussi on One of the main purposes of the statutory

requirements for an inmate affidavi t is to enable a court to determine not only if a claim ha s an arguable basis in law, but also to aid itin determining if it is substanti ally si milar to a pr evious cl aim or

clai ms filed by

the inmate and arises f rom the same operative facts. See Bell v. T exas Dept. of C

rimina l JusticeInstitutional

Div. , 962 S.W .2d 156, 157-58 (T ex.A pp.--Houston [14th Dist.] 1998, pet. denied). Operative facts, wit hin the purv iew of the statute, must include the al leged factual situationsthat gaverise to the various c laims and a reas onab ly detaile d descripti on of those facts. Without th at typ e of informat ion, a trial judge cannot determine if the suit is so subs tant ially s imila r to on e pre vious ly fil ed by t he inmate a s to be either malicious or frivolous. The failure to l ist the operati ve fac ts of prior act ions is suffici ent to justify the dismissal of a n inmat e suit. Clark v. Unit , 23 S.W.3d 420, 422 (Tex. App.-- Houston [1 st Dist.] 2000, pet. denied).
In this c ase, appe llan t list ed f ive previousfilings. I n four of the listing s, he included the dates the suits were filed, the names of thedefendants, the cause n umbers, and the disposition or no n-di spos itio n ofthe s uits . As th e “op erat ive facts” in each case he merely listed the legal theory he alleged in filing each suit. This sort of allegation f alls short of the type of information req uired by t he statute. See White v. State, 37 S.W.3d 56 2, 563-64 (Tex.App.--Beaumont 2 001, no pet.).7

Section 501.008 of the Government Code providesfor an inma te gr ieva nce sy stem. See Tex. Gov’t Code Ann. § 501.088 (Verno n 1998). Thatsection prov ides an inmate may notfile a claim i n state court r egarding operative facts for whic h the Department of C riminal Justice grieva nce s ystem provid es th e exc lu sive admini strative remedy unti l the inmate receivesa writ

ten decision i ssued by th e hig hest authority provided in the grievance system, or the 180 th day after the da te the grie vance is fil ed if the inmate hasnot received a writte n decision. See also Tex. Civ . Prac. & Rem. Code Ann. § 14.005(a) (Vernon Supp. 2 002). An in mate who files a claim that is also subject to the grievance system must file an aff idavi t sta ting t he da te a gr ieva nce w as filed and the date a written decision w as received, together

with a copy of the w ritten decis ion. If he fails tofile a claim w ithin 31 days of receivi ng a final deci sion from the grievance system, the trial court must dismiss the suit. Id. § 14.005(b). I f a claim is fil ed before the gri evance proceeding ha s run it s course, the trial court must stay the suit for at least 180 days to permit completion of the proceeding. Id. § 14.005(c).
T he purp ose of section 14.005 is to allow the trial court to ensure that an inmate proceeding in forma pauperishas utilized the Department ofCriminal Justice if it is appli cable to his clai m and to dismissa suit w hen it becomes cl ear that the inmate ha s failed to provi de th e infor mation 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 c ase, appe llan t adm itte d tha t he wa s in volved in such a grievance procee ding. He failed to complywith the statute and did not file copies of hi s grievances8

with his petition, nor has he yet filed any such copies. Mor eover, at the time of the heari ng on appellees’ di smissal motion , he admitted that the gri evance was still p ending w hen he filed this lawsuit . Even so, appellant points to the prov ision in sec

tion 14.005(c)

that if the suitis filed before th e grievance proceeding is complete, t he court shall delay the proceeding for a period not to exceed 180 d ays to permit completion of th e grievance procee ding. He posits that because the t rial court never enter

ed a specific or

der delayi ng the proce edin g fo r

t h e 1 8 0
- d a y

p e r i o d , h i s fa i l u r e c a n n o tb e a b a s i s fo r d i s m i s s a l

. We disagree. As we noted, thestatute speci fically pr ovides that the purpose of the delay or der is to permit completion of the grievance proceeding. Appellant’s suit was filed on August 15, 1996, nearly

five year

s before the June 5, 2001 dismissal of the suit.
In sum, the trial court did not abuse its discretion in dismiss ing appellan t’s suit and its judgment doing so is affirmed.

John T. Bo yd Chief Justice Do not publish

.