                         NUMBER 13-17-00009-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


SALVADOR ZAVALA,                                                    Appellant,

                                              v.

M. MATTHEW, ET AL,                                                  Appellees.


                   On appeal from the 36th District Court
                          of Bee County, Texas.


                     MEMORANDUM OPINION

           Before Justices Rodriguez, Longoria, and Hinojosa
               Memorandum Opinion by Justice Hinojosa

      Appellant Salvador Zavala appeals the trial court’s order dismissing with prejudice

the underlying lawsuit against appellees M. Matthew, C. Furr, Barry J. Thomas, and

Kristine M. Zambrano, for failure to comply with chapter 14 of the Texas Civil Practice

and Remedies Code.      See TEX. CIV. PRAC. & REM. CODE ANN. § 14.010(a) (West,
Westlaw through 2017 1st C.S.). In one issue, Zavala complains that the trial court

abused its discretion in dismissing his lawsuit. We affirm.

                                          I. BACKGROUND 1

        Zavala, an inmate, filed an in forma pauperis lawsuit against four employees of the

Texas Department of Criminal Justice—Institutional Division (TDCJ-ID). Zavala alleged

that one of the employees stole his headphones, the other three employees “failed to

correct said harm and committed fraud”, and all of the employees engaged in a conspiracy

to steal the headphones. Zavala asserted claims for theft, referencing the Texas Theft

Liability Act, see id. § 134.003 (West, Westlaw through 2017 1st C.S.), fraud, and

conspiracy to commit fraud. The Office of the Attorney General filed an amicus curiae

motion to dismiss, arguing that Zavala’s claims were frivolous and that Zavala filed a false

declaration of indigency. The trial court dismissed Zavala’s lawsuit with prejudice without

specifying the reasons for its ruling. This appeal followed.

                                           II. DISCUSSION

A.      Standard of Review

        We review a trial court’s dismissal of a claim pursuant to chapter 14 under an

abuse-of-discretion standard. Wanzer v. Garcia, 299 S.W.3d 821, 827 (Tex. App.—San

Antonio 2009, pet. denied); Scott v. Menchaca, 185 S.W.3d 543, 545 (Tex. App.—Corpus

Christi 2006, no pet.).        The trial court abuses its discretion if it acts arbitrarily,

unreasonably, or without reference to any guiding rules and principles.                    Downer v.



         1 Because this is a memorandum opinion and the parties are familiar with the facts, we will not

recite them here except as necessary to advise the parties of the Court’s decision and the basic reasons
for it. See TEX. R. APP. P. 47.4.
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Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985); McClain v. Terry, 320

S.W.3d 394, 397 (Tex. App.—El Paso 2010, no pet.). “The mere fact that a trial judge

may decide a matter within his discretionary authority in a different manner than an

appellate judge in a similar circumstance does not demonstrate that an abuse of

discretion has occurred.” Downer, 701 S.W.3d at 242; see Hickson v. Moya, 926 S.W.2d

397, 399 (Tex. App.—Waco 1996, no writ). “Because the trial court did not specify the

grounds for dismissal, we will affirm the decision if any theory is meritorious.” McClain,

320 S.W.3d at 398.

B.     Applicable Law

       Chapter 14 of the Texas Civil Practice and Remedies Code governs lawsuits

brought by an inmate in which the inmate has filed an affidavit or unsworn declaration of

inability to pay costs. Donaldson v. Tex. Dep’t of Crim. Justice—Correctional Inst. Div.,

355 S.W.3d 722, 724 (Tex. App.—Tyler 2011, pet. denied); In re Simmonds, 271 S.W.3d

874, 876 (Tex. App.—Waco 2008, orig. proceeding). A trial court has the discretion to

dismiss an inmate’s lawsuit if the allegation of poverty in the indigence affidavit is false.

TEX. CIV. PRAC. & REM. CODE ANN. § 14.003(a)(1) (West, Westlaw through 2017 1st C.S.).

The test for determining entitlement to proceed in forma pauperis is whether the appellant

would be unable to pay the costs of his suit if he wanted to and made a good faith effort

to do so. Griffin Indus. v. Hon. Thirteenth Court of Appeals, 934 S.W.2d 349, 351 (Tex.

1996) (quoting Allred v. Lowry, 597 S.W.2d 353, 355 (Tex. Crim. App. 1980)); Donaldson,

355 S.W.3d at 725.

       To enable the trial court to determine whether an inmate is indigent, the inmate is


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required to file a certified copy of his inmate trust account “reflect[ing] the balance of the

account at the time the claim is filed and activity in the account during the six months

preceding the date on which the claim is filed.” TEX. CIV. PRAC. & REM. CODE ANN.

§ 14.006(f) (West, Westlaw through 2017 1st C.S.). An inmate at the TDCJ-ID “who has

no money or property is considered indigent.” Donaldson, 355 S.W.3d at 725; McClain,

320 S.W.3d at 397. “However, ‘[a]n inmate who has funds in his trust account is not

indigent.’” Donaldson, 355 S.W.3d at 725 (quoting McClain, 320 S.W.3d at 397).

C.     Analysis

       Zavala’s sole issue complains that the trial court abused its discretion in dismissing

his lawsuit. In this case, Zavala had a balance in his trust account of $27.24 when the

underlying cause was filed, and the average monthly balance in his account for the six-

month period preceding the suit was $61.92. The average monthly amount deposited

into his account during that same period was $162.50, and a total of $975.00 had been

deposited into his account in the six months preceding suit.          Accordingly, because

Zavala had funds in his trust account, the trial court did not abuse its discretion in

dismissing Zavala’s lawsuit on the basis that his indigence affidavit contained a false

allegation of poverty. See Donaldson, 355 S.W.3d at 725 (holding no abuse of discretion

in dismissing inmate claim for false allegation of poverty where average monthly balance

was $63.42 and deposits in six-month period totaled $1,020.00); see also Whitmire v.

Guerra, No. 04-13-00477-CV, 2014 WL 235210, at *2 (Tex. App.—San Antonio Jan. 22,

2014, pet. denied) (mem. op) (holding same where account had $20.34 when the

underlying cause was filed, the six-month average monthly balance was $43.64, the six-


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month average monthly amount deposited was $77.59, and a total of $465.51 had been

deposited into the account in the six months preceding suit); Skinner v. Tex. Dep’t of Crim.

Justice Correctional Inst. Div., No. 12-12-00091-CV, 2013 WL 543452, at *2–3 (Tex.

App.—Tyler Feb.13, 2013, no pet.) (mem. op.) (holding same where account had average

balance of $21.36 in six months preceding suit and $440.00 had been deposited into

account during prior six months); Estrada v. Angleton Bail Bonds, No. 14-04-00166-CV,

2004 WL 1631125, at *2 (Tex. App.—Houston [14th Dist.] July 22, 2004, no pet.) (mem.

op.) (holding same where $350.00 had been deposited into account over prior six-month

period).

       We overrule Zavala’s sole issue.

                                       III. CONCLUSION

       The trial court’s order is affirmed.

                                                               LETICIA HINOJOSA
                                                               Justice


Delivered and filed the
4th day of January, 2018.




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