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 405th 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.
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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 requested 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 for 

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 presumption that the trial court’s action 

was justified. Id.

Chapter 14 of the Texas Civil Practice and Remedies Code

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 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 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 se 
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lawsuits the inmate had previously filed (except those filed 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).

Without information on appellant’s previous lawsuits, the trial court is unable 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 did 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 not 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 declaration of inability to 

pay costs is filed by the inmate.” Tex. Civ. Prac. & Rem. Code Ann. § 14.002(a); 

Hickman v. Adams, 35 S.W.3d 120, 123 (Tex. App.—Houston [14th Dist.] 2000, no pet.). 

Chapter 14 applies to all civil causes of action other than those brought under the Family 

Code. 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 district court, justice of the peace, or small 
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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 suit 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 applies if the claims in appellant’s suit are for civil 

causes of action that do not arise under the Family Code. Tex. Civ. Prac. & Rem. Code 

Ann. § 14.002(b). Here, appellant filed a petition for writ of mandamus asking the 

district court to order appellee to file a complaint with the District Attorney. This claim

is civil in nature and does not arise under the Family Code. Thus, we conclude that 

appellant’s petition for writ of mandamus is subject to the requirements of chapter 14. 

See Jaxson, 2006 WL 914199, at *1.

Subject Matter Jurisdiction

A district court has mandamus jurisdiction only to enforce its own jurisdiction. 

Tex. 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 interfere with the district court’s already pending 

jurisdiction. 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 instigate 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 its 
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writ power); Martinez, 931 S.W.2d at 46. Therefore, the trial court did not have subject 

matter jurisdiction to order the 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 court 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.