      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

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                                 ON MOTION FOR REHEARING
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                                         NO. 03-06-00117-CV


                                        Stan Hunt, Appellant

                                                    v.

             Amalia Rodriguez-Mendoza, Travis County District Clerk, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
        NO. GN501768, HONORABLE GISELA D. TRIANA, JUDGE PRESIDING



                              MEMORANDUM OPINION


                We withdraw our opinion dated July 11, 2007, and substitute the following in its

place. We overrule Hunt’s motion for rehearing.

                Stan Hunt appeals from the district court’s dismissal of his lawsuit against Travis

County District Clerk Amalia Rodriguez-Mendoza for failure to comply with chapter 14 of the civil

practice and remedies code, which governs inmate litigation. See Tex. Civ. Prac. & Rem. Code Ann.

§§ 14.001-.014 (West 2002). In four issues on appeal, Hunt claims that he was denied his right to

a hearing on the dismissal, alleges that the district court interfered with his compliance with the

statute, asserts that the district court abused its discretion in ordering the dismissal, and contends that

his case should not have been dismissed with prejudice. We reform the judgment to reflect that the

dismissal was without prejudice. As reformed, we affirm.
                                          BACKGROUND

               Hunt is an inmate confined in the Institutional Division of the Texas Department of

Criminal Justice. In May 2005, Hunt filed suit against Rodriguez-Mendoza, primarily alleging that

he was being denied access to court records maintained by the Travis County District Clerk’s Office.

Hunt filed with his petition an affidavit of his inability to pay court costs and a request for leave to

proceed in forma pauperis.

               Chapter 14 of the civil practice and remedies code applies to a suit brought by an

inmate in a district, county, 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. See id. § 14.002(a). In

accordance with section 14.004(a), Hunt filed a “Declaration of Previous Litigation,” in which he

listed 42 previously filed lawsuits. See id. § 14.004(a) (West 2002). Pursuant to section 14.006(f),

Hunt was also required to file a certified copy of “the inmate’s trust account statement.” See id.

§§ 14.004(c), .006(f) (West 2002). The statement is required because money is withdrawn from the

inmate’s trust account in order to pay for court fees, court costs, and other costs, and the statement

indicates the amount that is available to be withdrawn. See id. § 14.006(a), (e), (f). However, the

record does not reflect that Hunt filed such a statement.

               On November 14, 2005, Rodriguez-Mendoza filed a motion to dismiss the suit,

alleging that Hunt failed to comply with the requirements of chapter 14. Specifically, Rodriguez-

Mendoza claimed that Hunt neglected to mention that one of his previous lawsuits had been

dismissed as frivolous, see id. § 14.004(a)(2)(D) (requiring that inmate “describe[] each suit that was

previously brought by . . . stating the result of the suit, including whether the suit was dismissed as



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frivolous or malicious under Section 13.001 or Section 14.003 or otherwise.”), and that Hunt failed

to file a certified copy of his trust account statement. See id. § 14.004(c) (“The affidavit or unsworn

declaration [of inability to pay costs] must be accompanied by the certified copy of the trust account

statement required by Section 14.006(f).”).

               A hearing on the motion to dismiss was set for December 2, 2005. On that date, the

district court granted the motion to dismiss. The district court’s order specified that the dismissal

was “with prejudice.” Three days later, on December 5, Hunt filed a response to the motion to

dismiss and a “Motion for Telephone Conference Hearing on Defendant’s Motion to Dismiss.” The

motion was overruled by operation of law. This appeal followed.


                                            DISCUSSION

Right to hearing

               In his first issue, Hunt asserts that the district court abused its discretion by “implicitly

denying” his “timely request to appear by telephone conference at the scheduled dismissal hearing.”

In lawsuits filed under chapter 14, the district court’s decision to hold a hearing prior to dismissal

is discretionary. See id. § 14.003(c) (“In determining whether [to dismiss a claim], the court may

hold a hearing.” (emphasis added)); Thomas v. Wichita Gen. Hosp., 952 S.W.2d 936, 938

(Tex. App.—Fort Worth 1997, pet. denied). No abuse of discretion is shown when the inmate does

not demonstrate that there is evidence that he would have presented at the hearing. See Hall

v. Treon, 39 S.W.3d 722, 724 (Tex. App.—Beaumont 2001, no pet.); Thomas, 952 S.W.2d at 938.

In his “Motion for Telephone Conference Hearing,” Hunt failed to demonstrate that he had specific

evidence to present of compliance with chapter 14. On this record we hold that the district court did

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not abuse its discretion in denying Hunt’s motion to appear at the hearing by telephone conference.

We overrule Hunt’s first issue.


The district court’s alleged interference

                In his second issue, Hunt alleges that the district court prevented him from complying

with chapter 14. Specifically, Hunt asserts that he sent a copy of his inmate trust account statement

to various district court officials both before and after the filing of his current lawsuit, but that these

officials “refused” to file the statement. Hunt references no competent evidence that would support

this claim, and we conclude that the district court did not abuse its discretion in concluding

otherwise. We overrule Hunt’s second issue.


Dismissal for failure to comply with chapter 14

                In his third issue, Hunt asserts that the district court abused its discretion in

dismissing his lawsuit. The trial court has broad discretion to dismiss a suit brought pursuant to

chapter 14, and we review that dismissal under an abuse of discretion standard. White v. State,

37 S.W.3d 562, 563 (Tex. App.—Beaumont 2001, no pet.); McCollum v. Mt. Ararat Baptist Church,

980 S.W.2d 535, 536 (Tex. App.—Houston [14th Dist.] 1998, no pet.). A trial court abuses its

discretion when it acts in an arbitrary or unreasonable manner or acts without reference to any

guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241

(Tex. 1985). A clear failure by the trial court to analyze or apply the law correctly also constitutes

an abuse of discretion. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992).




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                In her motion to dismiss, Rodriguez-Mendoza alleged two independent grounds on

which the district court could have based its dismissal. First, Rodriguez-Mendoza alleged that Hunt

omitted information stating that one of his previous lawsuits had been dismissed as frivolous. See

Tex. Civ. Prac. & Rem. Code Ann. § 14.004(a)(2)(D). Second, Rodriguez-Mendoza alleged that

Hunt failed to file a certified copy of his inmate trust account statement. See id. §§ 14.004(c),

.006(f). We need not consider the former contention, because we conclude that the district court did

not abuse its discretion in finding that Hunt failed to file a certified copy of his inmate trust account

statement. The district court does not abuse its discretion in dismissing a suit for failure to comply

with the procedural requirements of chapter 14. See Scott v. Gallagher, 209 S.W.3d 262, 265

(Tex. App.—Houston [1st Dist.] 2006, no pet.); Williams v. Brown, 33 S.W.3d 410, 412

(Tex. App.—Houston [1st Dist.] 2000, no pet.). We overrule Hunt’s third issue.


Prejudice

                In his fourth issue, Hunt contends that the district court erred in dismissing his case

with prejudice. Dismissal with prejudice functions as a final determination on the merits of a case.

Mossler v. Shields, 818 S.W.2d 752, 754 (Tex. 1991); Barcroft v. County of Fannin, 118 S.W.3d

922, 927 (Tex. App.—Texarkana 2003, pet. denied). A dismissal for failure to comply with the rules

governing the filing of suits brought pursuant to chapter 14 is not a ruling on the merits. Hughes

v. Massey, 65 S.W.3d 743, 746 (Tex. App.—Beaumont 2001, no pet.). Therefore, the dismissal in

this case should have been without prejudice. Lentworth v. Trahan, 981 S.W.2d 720, 723

(Tex. App.—Houston [1st Dist.] 1998, no pet.). We sustain Hunt’s fourth issue.




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                                          CONCLUSION

               We overrule Hunt’s first, second, and third issues and sustain his fourth issue.1

Accordingly, we reform the judgment to provide that the cause is dismissed without prejudice. As

reformed, the judgment of the district court is affirmed.


                                                       _____________________________________

                                                       Bob Pemberton, Justice

Before Chief Justice Law, Justices Pemberton and Waldrop

Reformed and, as reformed, affirmed on Motion for Rehearing

Filed: August 29, 2007




        1
            Subsequent to the filing of this appeal, Hunt filed with this Court a “Motion to Take
Judicial Notice.” In the motion, Hunt lists various rules, statutes, cases, and alleged facts related to
this proceeding and Hunt’s previous lawsuits and asks this Court to take “judicial notice” of these
items. An appellate court’s decision to take judicial notice of a fact on appeal is generally
discretionary. Tran v. Fiorenza, 934 S.W.2d 740, 742-43 (Tex. App.—Houston [1st Dist.] 1996,
no writ); Martinez v. City of San Antonio, 768 S.W.2d 911, 914-15 (Tex. App.—San Antonio 1989,
no writ) (citing Wellborn, Judicial Notice Under Article II of the Texas Rules of Evidence,
19 St. Mary’s L.J. 1, 20 (1987)). To be the proper subject of judicial notice, a fact must be one not
subject to reasonable dispute and “capable of accurate and ready determination by resort to sources
whose accuracy cannot reasonably be questioned.” Office of Pub. Util. Counsel v. Public Util.
Comm’n, 878 S.W.2d 598, 600 (Tex. 1994) (quoting Tex. R. Evid. 201(b)). Furthermore, the
requesting party must supply the court with the necessary information. Id. (quoting Tex. R. Evid.
201(d)). We have considered the items in Hunt’s motion and determined that: (1) many of the items
are not the proper subject of judicial notice; (2) other items contain either incomplete or inaccurate
information; and (3) none of the items affect our resolution of the specific issues Hunt raised on
appeal. Accordingly, we exercise our discretion and deny Hunt’s motion.


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