                                  MEMORANDUM OPINION

                                         No. 04-08-00580-CV

                                           Jerry WANZER,
                                               Appellant

                                                   v.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE–INSTITUTIONAL DIVISION, et. al.,
                           Appellees

                      From the 81st Judicial District Court, Karnes County, Texas
                                 Trial Court No. 06-03-00026-CVK
                                Honorable Ron Carr, Judge Presiding

Opinion by:       Rebecca Simmons, Justice

Sitting:          Rebecca Simmons, Justice
                  Steven C. Hilbig, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: July 22, 2009

AFFIRMED

           Appellant Jerry Wanzer appeals the dismissal of his suit against the Institutional Division

of the Texas Department of Criminal Justice and Sergeant Felix Hinojosa. Because Wanzer’s

suit failed to comply with the statutory requirements for inmate litigation, we affirm the

judgment of the trial court.
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                                         BACKGROUND

       Appellant Wanzer is an inmate in the Institutional Division of the Texas Department of

Criminal Justice (TDCJ-ID).     After Wanzer filed several grievances against TDCJ-ID and

Hinojosa (collectively TDCJ), and received the State’s responses, he sued TDCJ in state district

court for retaliation, deliberate indifference to his medical care, and various torts. Wanzer sued

pro se and in forma pauperis. At a November 19, 2007 hearing on their motion to dismiss, TDCJ

challenged the merits of Wanzer’s claims and asserted that Wanzer failed to comply with several

requirements in chapter 14 of the Texas Civil Practice and Remedies Code. Appearing in

person, Wanzer objected to the proceeding asserting TDCJ-ID personnel prevented him from

bringing documents and materials necessary to support his suit. Even after the trial court offered

Wanzer copies of all the pleadings, Wanzer maintained his objection. Nevertheless, the trial

court heard TDCJ’s arguments, but took the matter under advisement to give Wanzer thirty days

to submit any documents and provide any argument. In its order dated January 10, 2008, the trial

court dismissed all of Wanzer’s claims with prejudice as frivolous.         Wanzer appeals the

dismissal of his suit and the hearing conducted without his documents and materials.

                                     STANDARD OF REVIEW

       We review a dismissal of an inmate’s suit that is subject to the inmate litigation

requirements of the Texas Civil Practice and Remedies Code for an abuse of discretion. Lilly v.

Northrep, 100 S.W.3d 335, 336 (Tex. App.—San Antonio 2002, pet. denied); Retzlaff v. Tex.

Dep’t of Criminal Justice, 94 S.W.3d 650, 654 (Tex. App.—Houston [14th Dist.] 2002, pet.

denied) (citing Hickson v. Moya, 926 S.W.2d 397, 398 (Tex. App.—Waco 1996, no writ)).




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                          PROCEDURES CONTROLLING INMATE SUITS

       In part to conserve judicial resources, the Texas Legislature created special procedures

controlling inmate suits for those inmates who declare they are unable to pay the costs of their

suit. See Leachman v. Dretke, 261 S.W.3d 297, 309 (Tex. App.—Fort Worth 2008, no pet.)

(citing Hickson, 926 S.W.2d at 399) (referencing chapter 14 of the Texas Civil Practice and

Remedies Code). When an inmate, appearing pro se and in forma pauperis, brings a suit in a

district court on an action not under the Family Code, the “trial court has broad discretion under

Chapter 14 to dismiss [the] inmate’s suit if it deems the suit frivolous.” Lilly, 100 S.W.3d at 337;

accord Retzlaff, 94 S.W.3d at 653. The suit may be frivolous if, inter alia, “the claim is

substantially similar to a previous claim filed by the inmate because the claim arises from the

same operative facts.” TEX. CIV. PRAC. & REM. CODE ANN. § 14.003(b)(4) (Vernon 2002).

       To prevent frivolous suits, section 14.004 requires inmates to file a detailed affidavit

describing previous filings. Id. § 14.004. If the inmate’s affidavit fails to provide the required

information, the trial court “is entitled to assume the suit is substantially similar to one

previously filed by the inmate, and therefore, frivolous.” Bell v. Tex. Dep’t of Criminal Justice–

Institutional Div., 962 S.W.2d 156, 158 (Tex. App.—Houston [14th Dist.] 1998, pet. denied); see

also Thompson v. Rodriguez, 99 S.W.3d 328, 330 (Tex. App.—Texarkana 2003, no pet.)

(placing the burden on the inmate to provide the required information); Clark v. Unit, 23 S.W.3d

420, 422 (Tex. App.—Houston [1st Dist.] 2000, pet. denied) (affirming a dismissal where the

inmate failed to provide the operative facts in the affidavit). The trial court may hold a hearing

on dismissing a claim, but importantly, the court may dismiss the claim without a hearing. Scott

v. Gallagher, 209 S.W.3d 262, 266 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (quoting TEX.

CIV. PRAC. & REM. CODE ANN. § 14.003(c) (Vernon 2002)); Retzlaff, 94 S.W.3d at 654 (citing




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TEX. CIV. PRAC. & REM. CODE ANN. § 14.003 (Vernon 2002)). An appellate court will affirm a

dismissal if it can be upheld under any proper legal theory. See Birdo v. Ament, 814 S.W.2d 808,

810 (Tex. App.—Waco 1991, writ denied); Ross v. Walsh, 629 S.W.2d 823, 826 (Tex. App.—

Houston [14th Dist.] 1982, no writ).

                                           DISMISSAL OF SUIT

        In his first issue on appeal, Wanzer argues the trial court improperly dismissed his suit as

frivolous. The trial court’s order dismissed Wanzer’s claims “with prejudice as frivolous,” but

did not state the basis for its order.

        To avoid the dismissal of his suit, Wanzer had to file an affidavit identifying his previous

filings. See TEX. CIV. PRAC. & REM. CODE ANN. § 14.004 (Vernon 2002); Lilly, 100 S.W.3d at

337; Clark, 23 S.W.3d at 422. Wanzer’s original petition of March 10, 2006, included an

affidavit listing eight previous filings, but none of the listings indicated whether the previous

filing was dismissed as frivolous. In their First Amended Answer and Motion to Dismiss, filed

August 25, 2006, TDCJ asserted that Wanzer’s affidavit did not comply with Chapter 14 because

it failed to state which previous cases were dismissed as frivolous and failed to state “the

operative facts for which relief was sought.” See TEX. CIV. PRAC. & REM. CODE ANN. § 14.004

(Vernon 2002); Clark, 23 S.W.3d at 422. In response, Wanzer filed a second affidavit, listing

nine previous filings, and disclosed that six were dismissed as frivolous, but still failed to state

any operative facts. Instead, for each previous filing, Wanzer gave only a summary title as the

reason for seeking relief. For example, one previous filing listed “A 1st Amendment Retaliation

Civil Rights Claim”; another included “Retaliation, Deliberate Indifference.” TDCJ’s Second

Amended Motion to Dismiss, filed on August 20, 2007, repeated their assertion that Wanzer’s

amended affidavit failed to state the operative facts in the previous filings. At the November 19,




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2007 hearing on TDCJ’s motion to dismiss, TDCJ reiterated their assertion that Wanzer’s

affidavit omitted mandatory information, was non-compliant, and his suit warranted dismissal.

See Lilly, 100 S.W.3d at 337; Clark, 23 S.W.3d at 422. The appellate record does not show that

Wanzer submitted an amended or supplemental affidavit after the hearing.

        Having reviewed the record, we find that Wanzer did not meet the requirements of

section 14.004 because his amended affidavit failed to state “the operative facts for which relief

was sought.” See TEX. CIV. PRAC. & REM. CODE ANN. § 14.004(a)(2)(A) (Vernon 2002); Clark,

23 S.W.3d at 422. In their first and second amended motions to dismiss, and at the hearing,

TDCJ identified the defects in Wanzer’s affidavits. Over a period of more than one year,

Wanzer had at least three separate opportunities to amend or supplement, yet he failed to submit

a compliant affidavit. Thus, we cannot say the trial court abused its discretion in dismissing

Wanzer’s suit with prejudice as frivolous. 1 See Williams v. Tex. Dep’t of Criminal Justice–

Institutional Div., No. 14-01-00646-CV, 2002 WL 1822424, at *2 (Tex. App.—Houston [14th

Dist.] Aug. 8, 2002, pet. denied) (not designated for publication) (citing Hickman v. Adams, 35

S.W.3d 120, 125 & n.2 (Tex. App.—Houston [14th Dist.] 2000, no pet.)); Lentworth v. Trahan,

981 S.W.2d 720, 722–23 (Tex. App.—Houston [1st Dist.] 1998, no pet.); cf. Peña v. McDowell,

201 S.W.3d 665, 666 (Tex. 2006) (per curiam). We overrule Wanzer’s first issue on appeal.

                              HEARING WITHOUT WANZER’S MATERIALS

        Wanzer also asserts the trial court abused its discretion by holding a hearing on TDCJ’s

motion to dismiss when the court knew Wanzer did not have documents and materials he

considered essential to his case. However, because Wanzer had no right to a hearing on TDCJ’s


1
  We need not address the “with prejudice” disposition in the trial court’s order because Wanzer did not raise or
brief the issue before this court. See TEX. R. APP. P. 38.1(f), (i) (requiring issues presented, argument, and
authorities); Roise v. State, 7 S.W.3d 225, 232 (Tex. App.—Austin 1999, pet. ref’d) (waiving a point of error not
supported by argument or authorities).


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motion to dismiss, the court could have dismissed his case solely on the pleadings. See TEX.

CIV. PRAC. & REM. CODE ANN. § 14.003(c) (Vernon 2002) (“[T]he court may hold a hearing

. . . .” (emphasis added)); Scott, 209 S.W.3d at 266; Retzlaff, 94 S.W.3d at 654. Nevertheless, at

the November 19, 2007 hearing where Wanzer personally appeared, he had the opportunity,

albeit without his documents and materials, to argue his case. Further, the court postponed its

decision and gave Wanzer thirty days to submit any other documents or arguments. We hold

that the trial court did not abuse its discretion by proceeding with the hearing over Wanzer’s

objection. See Scott, 209 S.W. at 266. We overrule Wanzer’s second issue on appeal.

                                          CONCLUSION

       Having overruled both of Wanzer’s issues, we affirm the judgment of the trial court.




                                                 Rebecca Simmons, Justice




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