                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-13-00283-CV
                                 No. 10-13-00284-CV

WILLIE ATKINS,
                                                             Appellant
v.

ROBERT HERRERA
AND BRAD LIVINGSTON,
                                                             Appellees



                           From the 12th District Court
                               Walker County, Texas
                         Trial Court Nos. 26498 and 26530


                           MEMORANDUM OPINION

       In appellate cause numbers 10-13-283-CV and 10-13-284-CV, appellant, Willie

Atkins, challenges the trial court’s dismissal of his claims as frivolous. We affirm.

                                    I.     BACKGROUND

       During all relevant times, appellant has been incarcerated at the Pack, Estelle,

and Stiles Units in the Institutional Division of the Texas Department of Criminal

Justice. On April 23, 2013, and May 10, 2013, appellant filed two separate pro se, in
forma pauperis petitions against numerous officials of the Texas Department of

Criminal Justice (“TDCJ”). The April 23, 2013 petition corresponds with appellate cause

number 10-13-283-CV, and the May 10, 2013 petition relates to appellate cause number

10-13-284-CV.

       In his April 23, 2013 petition, appellant alleged that TDCJ officials subjected him

to cruel and unusual punishment when they housed him with another offender with a

history of serious altercations. Appellant also alleged that TDCJ officials violated his

due-process rights by: (1) allowing his property to be lost or stolen; (2) denying him

access to the courts; (3) failing to follow TDCJ policy; and (4) not providing him with a

free copy of his grievances.     In this petition, appellant sought declaratory relief,

compensatory and punitive damages, attorney’s fees, court costs, and injunctive relief.

       In his May 10, 2013 petition, appellant asserted that TDCJ officials routinely

charged him “and other offenders $100 annual health care services fee throughout TDCJ

for medical services that are exempt from charges pursuant to Texas Government Code

501.063,” as well as agency policy. Appellant further asserted that “for offenders who

do complain and request refunds, reimbursement is delayed for up to 90 days, in an

effort to squeeze every penny from interest accumulated with the exempt, unjustified

funds.”     According to appellant, these actions amounted to cruel and unusual

punishment and deliberate indifference and caused him mental anguish, emotional

distress, loss of enjoyment, and financial hardship. Once again, appellant requested

declaratory and injunctive relief, compensatory and punitive damages, attorney’s fees,

and court costs.

Atkins v. Herrera                                                                   Page 2
       In response to both petitions, the Attorney General of Texas filed Amicus Curiae

Chapter Fourteen Advisories, arguing that appellant’s petitions should be dismissed as

frivolous for failing to comply with chapter 14 of the Texas Civil Practice and Remedies

Code. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 14.001-.014 (West 2002 & Supp. 2013).

Thereafter, the trial court dismissed appellant’s petitions as frivolous and for failing to

comply with chapter 14, and as such, entered a take-nothing judgment. These appeals

followed.

                                  II.    INMATE LITIGATION

       Inmate litigation is governed by the procedural rules set forth in chapter 14 of the

Texas Civil Practice and Remedies Code. See id. §§ 14.001-.014; see also McBride v. Tex.

Bd. of Pardons & Paroles, No. 13-05-559-CV, 2008 Tex. App. LEXIS 1290, at *6 (Tex.

App.—Corpus Christi Feb. 21, 2008, pet. denied) (mem. op.). The Texas Legislature

enacted chapter 14 to control the flood of lawsuits filed in state courts by prison

inmates, which consume valuable judicial resources with seemingly little offsetting

benefit. Hickson v. Moya, 926 S.W.2d 397, 399 (Tex. App.—Waco 1996, no writ). This

Court has noted:

       Prisoners have everything to gain and little to lose by filing frivolous suits.
       It costs them almost nothing; time is of no consequence to a prisoner;
       threats of sanctions are virtually meaningless; and the prisoner can look
       forward to a day trip to the courthouse. Thus, the temptation to file a
       frivolous suit is strong. Such suits, however, waste valuable resources
       and subject the state and its prison officials to the burden of unwarranted
       litigation, preventing claims with merit from being heard expeditiously.

Id. (internal citations omitted); see Spellmon v. Sweeney, 819 S.W.2d 206, 209 (Tex. App.—

Waco 1991, no writ).

Atkins v. Herrera                                                                        Page 3
       Generally, the dismissal of inmate litigation under chapter 14 is reviewed for

abuse of discretion. Brewer v. Simental, 268 S.W.3d 763, 767 (Tex. App.—Waco 2008, no

pet.). “To establish an abuse of discretion, an appellant must show the trial court’s

actions were arbitrary or unreasonable in light of all the circumstances. The standard is

clarified by asking whether the trial court acted without reference to any guiding rules

or principles.” Spurlock v. Schroedter, 88 S.W.3d 733, 735-36 (Tex. App.—Corpus Christi

2002, pet. denied) (internal citations omitted). We may not substitute our judgment for

that of the trial court with respect to the resolution of factual issues or matters

committed to the trial court’s discretion. See In re Spooner, 333 S.W.3d 759, 763 (Tex.

App.—Houston [1st Dist.] 2010, orig. proceeding); see also Downer v. Aquamarine

Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985). The judgment of the trial court will be

affirmed if that judgment can be upheld on any reasonable theory supported by the

evidence. See Johnson v. Lynaugh, 796 S.W.2d 705, 706-07 (Tex. 1990); Ex parte E.E.H., 869

S.W.2d 496, 497-98 (Tex. App.—Houston [1st Dist.] 1993, writ denied); Harris County

Dist. Attorney’s Office v. Burns, 825 S.W.2d 198, 200 (Tex. App.—Houston [14th Dist.]

1992, writ denied). We consider only the evidence most favorable to the judgment, and

if there is some evidence to support the judgment, we will affirm. State v. Knight, 813

S.W.2d 210, 211 (Tex. App.—Houston [14th Dist.] 1991, no writ).




Atkins v. Herrera                                                                   Page 4
                            III.   DETERMINATION OF INDIGENCY

       A plaintiff may file an affidavit of indigence in lieu of paying court costs. TEX. R.

CIV. P. 145. “A ‘party who is unable to afford court costs’ is defined as a person who is

presently receiving government entitlement based on indigency or any other person

who has no ability to pay costs.” Id. at R. 145(a). The affidavit must contain complete

information as to the party’s identity, the nature and amount of governmental-

entitlement income, nature and amount of employment income, other income (interest,

dividends, etc.), spouse’s income if available to the party, property owned (other than

homestead), cash or checking account, dependents, debts, and monthly expenses. Id. at

R. 145(b). A prisoner at a Texas Department of Criminal Justice facility who has no

money or property is considered indigent. Allred v. Lowry, 597 S.W.2d 353, 355 (Tex.

1980). An inmate who has funds in his inmate account is not indigent. See TEX. CIV.

PRAC. & REM. CODE ANN. § 14.006(b)(1); Donaldson v. Tex. Dep’t of Criminal Justice—Corr.

Inst. Div., 355 S.W.3d 722, 725 (Tex. App.—Tyler 2011, pet. denied); McClain v. Terry, 320

S.W.3d 394, 397 (Tex. App.—El Paso 2010, no pet.); see also Mendoza v. Livingston, No. 09-

12-00594-CV, 2014 Tex. App. LEXIS 1855, at **7-8 (Tex. App.—Beaumont Feb. 20, 2014,

no pet.) (mem. op.); In re Yates, No. 01-09-00031-CV, 2011 Tex. App. LEXIS 9633, at *4

(Tex. App.—Houston [1st Dist.] Dec. 8, 2011, no pet.) (mem. op.). Section 14.006(b)

outlines a formula by which an inmate’s funds can be utilized for payment of costs. See

TEX. CIV. PRAC. & REM. CODE ANN. § 14.006(b); see also McClain, 320 S.W.3d at 397.

       Section 14.003(a) of the Texas Civil Practice and Remedies Code authorizes the

dismissal of an indigent’s inmate’s suit if the court finds: (1) the allegation of poverty in

Atkins v. Herrera                                                                      Page 5
the affidavit or unsworn declaration is false; (2) the claim is frivolous or malicious; or (3)

the inmate filed an affidavit or unsworn declaration required by this chapter that the

inmate knew was false. TEX. CIV. PRAC. & REM. CODE ANN. § 14.003(a). A trial court

does not abuse its discretion in dismissing a suit when the plaintiff makes a false

allegation of poverty. See McClain, 320 S.W.3d at 398 (citing McCullough v. Dretke, No.

02-07-000294-CV, 2008 Tex. App. LEXIS 6821, at **5-7 (Tex. App.—Fort Worth Sept. 11,

2008, no pet.) (per curiam)).

        Here, the record reflects that appellant has a source of income and, thus, is not

indigent. Specifically, when he filed his April 23, 2013 petition, appellant attached a

certified copy of his inmate account, which revealed that $705 had been deposited in his

inmate account in the previous six months. Additionally, this initial inmate-account

report indicated that appellant had a current balance of $47.25, a six-month average

balance of $227.60, and a high balance of $362 at the time he filed his first petition.

However, shortly thereafter, appellant’s inmate account balance had dwindled to $0.1

Moreover, no deposits were made to appellant’s inmate account in April 2013.

Nevertheless, in his affidavits of indigence, appellant acknowledged receiving money




         1 In the certified copy of appellant’s inmate account created on May 3, 2013, appellant’s six-month

deposits amounted to $605; his six-month average balance was $119.66; his six-month average deposit
was $100.83; and his highest balance in April 2013 was $156.66. The Attorney General asserts that the fact
that appellant’s inmate-account balance dwindled to $0 at approximately the time he filed his second
petition is suspicious and suggests manipulation.


Atkins v. Herrera                                                                                    Page 6
from his family.2 Furthermore, in his May 10, 2013 affidavit of indigence, appellant

stated that his family had contributed $405 to his inmate account in the last six months.

        Based on the foregoing evidence, we find that the trial court could have

concluded that appellant’s allegations of poverty at the time of filing his petitions were

false and, thus, subjected appellant’s petitions to dismissal. See TEX. CIV. PRAC. & REM.

CODE ANN. § 14.003(a)(1); McClain, 320 S.W.3d at 398 (concluding that an inmate was

not indigent when he had six-month average balance of $184.92); see also Mendoza, 2014

Tex. App. LEXIS 1855, at **8-10 (concluding that the trial court did not abuse its

discretion in dismissing Mendoza’s suit for making false allegations about his ability to

pay costs when Mendoza’s inmate-account report showed that he had a balance of $6.15

when he filed his complaint; $690 in deposits in the previous six months; a six-month

average balance of $32.21; and average deposits in the previous six months of $115);

McGoldrick v. Velasquez, No. 13-12-00766-CV, 2013 Tex. App. LEXIS 9245, at **3-4 (Tex.

App.—Corpus Christi July 25, 2013, no pet.) (mem. op.) (concluding that an inmate was

not indigent when he had six-month total deposits of $453.42); Vega v. Tex. Dep’t of

Criminal Justice-Corr. Inst. Div., No. 12-10-00149-CV, 2011 Tex. App. LEXIS 5888, at **5-7

(Tex. App.—Tyler July 29, 2011, no pet.) (mem. op.) (concluding that the trial court did

not abuse its discretion in dismissing Vega’s suit because he made a false allegation of


        2  Despite receiving money from his family on what appears to be a regular basis up to the time he
filed his petitions in this matter, appellant asserted in his affidavits of indigence that:

        I, WILLIE ATKINS, declare, depose, and say I am the Plaintiff in the above entitled case.
        In support of my motion to proceed without being required to pre-pay fees, costs, or give
        security thereof, I state because if [sic] of my poverty, I am unable to pay in advance the
        filing fee for said proceedings or to give security for the filing fee. I believe I am entitled
        to relief.

Atkins v. Herrera                                                                                         Page 7
poverty in his declaration of inability to pay costs when Vega’s inmate-account report

reflected total deposits of $530 over the prior six months); Foster v. Comal County Sheriff,

No. 03-08-00539-CV, 2009 Tex. App. LEXIS 6370, at **3-7 (Tex. App.—Austin Aug. 13,

2009, no pet.) (mem. op.) (concluding that an inmate was not indigent when he had total

deposits of $551.63 in the three months surrounding the filing of his petition);

McCullough, 2008 Tex. App. LEXIS 6821, at **7-8 (concluding that an inmate was not

indigent when he had a six-month average balance of $184.92); Estrada v. Angleton Bail

Bonds, No. 14-04-00166-CV, 2004 Tex. App. LEXIS 6485, at *5 (Tex. App.—Houston [14th

Dist.] July 22, 2004, no pet.) (mem. op.) (concluding that there was no abuse of

discretion in the trial court finding that appellant was able to pay costs when the

certified copy of the inmate’s account reflected deposits of over $350 during the

preceding six-month period).

       Because we uphold the trial court’s judgment on any reasonable theory

supported by the evidence, we cannot say that the trial court abused its discretion in

dismissing appellant’s petitions in this matter for failing to comply with chapter 14 of

the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. §

14.003(a)(1); Johnson, 796 S.W.2d at 706-07; Ex parte E.E.H., 869 S.W.2d at 497-98; Burns,

825 S.W.2d at 200; see also Brewer, 268 S.W.3d at 767; Spurlock, 88 S.W.3d at 735-36.

Accordingly, we overrule all of appellant’s issues in both appellate cause numbers. See

TEX. R. APP. P. 47.1.




Atkins v. Herrera                                                                     Page 8
                                    IV.    CONCLUSION

       We affirm the judgments of the trial court.




                                                AL SCOGGINS
                                                Justice


Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed June 5, 2014
[CV06]




Atkins v. Herrera                                             Page 9
