Affirmed and Memorandum Opinion filed September 6 , 2012

.

In The 

## Fourteenth Court of Appeals

NO. 14

- 12

- 00254

- CV

WAYNE ERNEST BARKER , Appellant

V.

BRAD LIVINGSTON , Appellee

On Appeal from the 405 th District Court Galveston County, Texas Trial Court Cause No. 12

- CV

- 0204



### M E M O R A N D U M O P I N I O N

Appellant Wayne Ernest Barker , an inmate in the Texas Department of Criminal Justice, appeals the trial court’s dismissal of his pro se petition for writ of mandamus. Appellant argues the trial court abused its discretion in dismissing his petition for writ of mandamus in accordance with Texas Civil Practice and Remedies Code chapter 14. We
affirm.2 Background
On February 9, 2012, appellant filed a petition for writ of mandamus in the 405th District Court in Galveston County. Appellant alleged he had been assaulted by a prison employee while at the hospital in Galveston. Appellant reque sted the 405th District Court to order appellee to file a complaint about the assault with the District Attorney of Galveston County. On February 29, 2012, the trial court dismissed appellant’s petition because it “has no basis in law or fact per Section 14.003 of the Texas Civil Practice and Remedies Code. Said Petition also does not comport with Section 14.004 of the Texas Civil Practice and Remedies Code.”

Standard of Review

We review the trial court’s dismissal of an inmate’ s claims under Chapter 14 f or an abuse of discretion. Retzlaff v. Texas Dep ’ t of Criminal Justice , 94 S.W.3d 650, 654 (Tex. App.

— Houston [14th Dist .] 2002, pet. denied). A trial court abuses its discretion when it acts without reference to any guiding rules and principles, or its actions are arbitrary or unreasonable based on the circumstances of the particular case. Id

. Appellant bears the burden of overcoming the p resumption that the trial court’ s action was justified. Id

. Chapter 14 of the Texas Civil Practice and Remedies C ode
The trial court may dismiss an inmate suit before or after service of process if it
determines the suit is frivolous or malicious. Tex. Civ. Prac. & Rem. Code Ann. § 14.003(a)(2). In determining whether the suit is frivolous or malicious, the trial co urt
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 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 it arises from the same operative facts. Id . § 14.003(b).
Chapter 14 requires an inmate who files an affidavit or unsworn declaration of inability to pay costs to file a separate affidavit or declaration identifying all pro se3

lawsuits the inmate had previously filed ( except those fi led under the Texas Family
Code ) , specifying the operative facts for which relief was sought, the case name, the cause number, the court in which it was brought, the names of the parties, and the result of the suit, including whether it was dismissed as frivolous or malicious. Id

. § 14.004(a). The trial court can determine, based on previous filings, whether the suit is frivolous because the inmate has already filed a similar claim. Bell v. Texas Dep’t of Criminal
Justice , 962 S.W.2d 156, 158 (Tex. App.

— Houston [14th Dist.] 1998, pet. denied)

. W ithout information on appellant’ s previous lawsuits, the trial court is unabl e to consider whether appellant’ s current claim is substantially similar to a previous claim. Id.
A review of the record reflects that although appellant filed an affidavit of poverty and a motion for leave to proceed in forma pauperis, he did not file an affidavit or declaration identifying all pro se lawsuits he has previously filed. When an inmate does not comply with the affidavit requirement of section 14.004 , the trial court is entitled to assume the suit is substantially similar to one previously filed by the inmate and, therefore, is frivolous. Obadele v. Johnson , 60 S.W.3d 345, 348 (Tex. App.

— Houston [14th Dist.] 2001, no pet.). Thus, because appellant d id not meet the affidavit requirement of section 14.004, the trial court was entitled to assume this case was substantially similar to one previously filed by appellant and dismiss his claims.
Appellant argues that his petition for writ of mandamus does no t fall within the scope of chapter 14 and should not have been dismissed for noncompliance with it. Chapter 14 applies “only to a suit brought by an inmate in a district court, justice of the peace, or small claims court in which an affidavit or unsworn de claration of inability to pay costs is filed by the inmate.” Tex. Civ. Prac. & Rem. Code A nn. § 14.002(a) ; Hickman v. Adams , 35 S.W.3d 120, 123 (Tex. App.

— Houston [14th Dist.] 2000, no pet.).
Ch apter 14 applies to all civil causes of action other than th ose brought under the F amily
C ode. Tex. Civ. Prac. & Rem. Code Ann. § 14.002(b). Section 14.001(1) of chapter 14 defines a claim as “a cause of action governed by this chapter.” Id . at § 14.001(1). Thus, any claim brought by an inmate in a suit in a di strict court, justice of the peace, or small4

claims court and accompanied by a declaration of inability to pay costs is governed by chapter 14. Id . at § 14.002(a). Appellant contends that an original proceeding is not a “suit” for purposes of chapter 14. An action for writ of mandamus initiated in the trial court is a civil action subject to appeal as any other lawsuit. Anderson v. City of Seven Points , 806 S.W.2d 791, 792 n. 1 (Tex. 1991). Thus, an original proceeding is a s uit for purposes of chapter
14. Jaxson v. Morgan , No. 14

– 04

– 00785

– CV, 2006 WL 914199, at *1 (Tex. App.

— Houston [14th Dist.] Apr. 6, 2006, no. pet.) (mem.op.)
Appellant, an inmate, brought this suit in district court, seeking to proceed in forma pauperis. Thus, chapter 14 app lies if the claims in appellant’ s suit are for civil
causes of action that do not arise under the F amily C ode. Tex. Civ. Prac. & Rem. Code Ann. § 14.002(b). Here, appellant filed a petition for writ of mandamus asking the
d istrict co urt to order appellee to file a complaint with the District Attorney. Th is claim
is civil in nature and do es not arise under the F amily C ode. Thus, we c onclude that appellant’ s petition for writ of mandamus is subject to the requirements of chapter 14.
See Jaxson , 2 006 WL 914199, at *1.
Subject Matter Jurisdiction
A district court has mandamus jurisdiction only to enforce its own jurisdiction.
Te x. Const. art. V, § 8; Tex. Gov’ t Code Ann. § 24.011 ; Martinez v. Thaler , 931 S.W.2d 45, 46 (Tex. App.

— Houston [14th Dist.] 1996, writ denied)

. A district court has no constitutional or statutory jurisdiction to exercise supervisory control over prison officials absent an attempt by such officials to in terfere with the district court’ s already pending jurisdictio n. Martinez , 931 S.W.2d at 46. The purpose of appellant’ s petition for writ of mandamus in the trial court was not to protect the trial court’ s jurisdiction, but to instig ate litigation against appellee

. See Winfrey v. Chandler , 159 Tex. 220, 318 S.W.2d 59, 61 (Tex. 1958) (holding a district court must have actual jurisdiction of a matter if it seeks to enforce its jurisdiction by its5

writ power); Martinez , 931 S.W.2d at 46. Therefore, the trial court did not have subject matter jurisdiction to order th e relief requested in appellant’ s petition for writ of
mandamus. See Tex. Gov’ t Code Ann. § 24.011; Winfrey , 318 S.W.2d at 61; Martinez , 931 S.W.2d at 46. Thus, the trial court lacked subject matter jurisdiction to order the relief sought, and the trial c ourt appropriately dismissed appellant ’ s petition for writ of
mandamus. See Tex. Civ. Prac. & Rem. Code Ann. § 14.003(b).

Conclusion The trial court appropriately dismissed appellant’s petition for writ of mandamus
under sections 14.003 and 14.004 of the Texas Civil Practice and Remedies Code. We
affirm the trial court’s dismissal

. PER CURIAM

Panel consists of Justices Seymore, Boyce, and McCally.