                                            COURT OF APPEALS
                                         EIGHTH DISTRICT OF TEXAS
                                              EL PASO, TEXAS

                                                            §
 KENNETH REVEN McCLAIN,                                                          No. 08-09-00041-CV
                                                            §
                               Appellant,                                            Appeal from
                                                            §
 v.                                                                            County Court at Law No. 2
                                                            §
 JEFFREY K. TERRY,                                                              of Dallas County, Texas
 WILL BUESCHEL, ET AL.,                                     §
                                                                                (TC # CC-08-09759-B)
                               Appellees.                   §


                                                     OPINION

          This is a pro se inmate’s appeal from a trial court’s orders finding that Kenneth Reven

McClain is not indigent and dismissing his lawsuit with prejudice. For the reasons that follow, we

affirm.

                               FACTUAL AND PROCEDURAL SUMMARY

          On November 12, 2008, Kenneth Reven McClain filed suit against Jeffrey K. Terry and Will

Bueschel for personal injury and defamation pursuant to the Texas Civil Practice and Remedies

Code. That same day, an ex parte application to proceed in forma pauperis signed by McClain was

filed with the clerk. In his affidavit, McClain alleged that he has been incarcerated1 for the last three

years, is unemployed, and has no income.

          I further declare that the responses which I have made to questions and instructions
          below are true.

          1. Have you received, within the past 12 months, any money from any of the
          following sources?


          1
              McClain is an inmate at a federal prison facility in Kentucky.
               a.   Business, profession or form of sel-employment?               No
               b.   Rent payments, interest or dividends?                         No
               c.   Pensions, annuities or life insurance payments?               No
               d.   Gifts or inheritances?                               [Unanswered]
               e.   Family of [sic] friends?                                     Yes
               f.   Any other sources?                                            No

       If you answered YES to any of the questions above describe each source of money
       and state the amount received from each during the past 12 months.

               $2000

       2. Do you own cash, or do you have money in a checking or savings account,
       including any funds in prison accounts?

               Yes.

       If you answered YES, state the total value of the items owned.

               $800

       3. Do you own any real estate, stocks, bonds, notes, automobiles, or other valuable
       property, excluding ordinary household furnishings and clothing?

               No.

McClain signed the affidavit on November 2, 2008, and declared under penalty of perjury that the

information was true and correct. John Warren, Clerk of the County Courts of Dallas County, filed

a contest on November 13 pursuant to Rule 145 of the Texas Rules of Civil Procedure. A hearing

was set for November 21 and McClain was notified via certified mail, return receipt requested. He

did not appear and he does not contend that he sought a bench warrant or requested permission to

participate in the hearing via video conference. Following the hearing, the trial court entered an

order finding that “Kenneth Reven McClain is not indigent.” That same date, the judge signed an

order dismissing McClain’s lawsuit with prejudice pursuant to Section 14.003 of the Texas Civil

Practice and Remedies Code.

                                     ISSUES FOR REVIEW
        McClain brings three issues for review. First, he contends that his affidavit did not contain

any false claims or claims that he knew to be false. Second, he submits that his lawsuit had an

arguable basis in law. Third, he alleges that the affidavit was filed accidently or mistakenly by his

father. The procedural posture requires that we first determine whether McClain was indigent.

                                    STANDARD OF REVIEW

        We review a trial court’s determination of indigency status for an abuse of discretion.

Maddox v. Texas Dept. of Protective and Regulatory Services, No. 08-02-00200-CV, 2003 WL

21716185, *1 (Tex.App.--El Paso July 25, 2003, no pet.)(not desig. for publication); White v.

Bayless, 40 S.W.3d 574, 576 (Tex.App.--San Antonio 2001, pet. denied); In re Smith, 70 S.W.3d

167, 168 (Tex.App.--San Antonio 2001, no pet.). Similarly, we review a dismissal of an inmate’s

in forma pauperis suit under an abuse of discretion standard. Thomas v. Skinner, 54 S.W.3d 845,

846 (Tex.App.--Corpus Christi 2001, pet. denied). “A [party] who attacks the ruling of a trial court

as an abuse of discretion labors under a heavy burden.” Johnson v. Fourth Court of Appeals, 700

S.W.2d 916, 917 (Tex. 1985)(orig. proceeding). “The test for abuse of discretion is not whether, in

the opinion of [this Court], the facts present an appropriate case for the trial court’s actions. Rather,

it is a question of whether the court acted without reference to any guiding rules and principles.”

Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985), cert. denied, 476 U.S.

1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986); Amador v. Tan, 855 S.W.2d131, 133 (Tex.App.--

El Paso 1993, writ denied). Another way of stating the test is whether the act was arbitrary or

unreasonable. Downer, 701 S.W.2d at 242, citing Smithson v. Cessna Aircraft Co., 665 S.W.2d 439,

443 (Tex. 1984); Amador, 855 S.W.2d at 133. The fact that a trial court may decide a matter within

its 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.2d at 242, citing
Southwestern Bell Telephone Co. v. Johnson, 389 S.W.2d 645, 648 (Tex. 1965). A mere error of

judgment is not an abuse of discretion. Loftin v. Martin, 776 S.W.2d 145, 146 (Tex. 1989).

                                     DETERMINATION OF INDIGENCY

       A plaintiff may file an affidavit of indigency 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 a

government entitlement based on indigency or any other person who has no ability to pay costs.”

TEX .R.CIV .P. 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.

TEX .R.CIV .P. 145(b). A prisoner at a Texas Department of Criminal Justice 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 trust account is not indigent.                     TEX .CIV .PRAC.&REM .CODE ANN . §

14.006(b)(1)(Vernon 2002). The statute outlines a formula by which an inmate’s trust funds can be

utilized for payment of costs. Id.

       A defendant or the court clerk may contest an affidavit by filing a written contest giving

notice. TEX .R.CIV .P. 145(d). The court may conduct a hearing and if so, the inmate must be given

notice. Aguilar v. Stone, 68 S.W.3d 1, 2 (Tex.App.--Houston [1st Dist.] 1997, orig. proceeding).

The court may hold a hearing by video communications for an inmate at a jail facility2 or consider

the case on submission by requiring that written statements be submitted and copies be provided to

the inmate. TEX .CIV .PRAC.&REM .CODE ANN . § 14.009.

       We begin with McClain’s argument that the affidavit did not contain false information. The

       2
           T EX .C IV .P RAC .&R EM .C O D E A N N . § 14.008(a).
clerk’s record includes a certified trust fund statement from the prison in which McClain is

incarcerated. He avers that the exhibit demonstrates that he actually had more money in his prison

account than what he claimed in the affidavit. In short, he contends the trust statement proves that

the affidavit correctly stated the monies available to him. He misstates the trial court’s ruling. The

trial court did not find that the affidavit falsely stated his financial situation. The court specifically

found that McClain was not indigent. McClain has not attacked that finding on appeal or assigned

error to the trial court’s ruling. It is in this light that we review the trial court’s dismissal order.

                                        DISMISSAL OF SUIT

        Chapter 14 of the Texas Civil Practices and Remedies Code relates to inmate litigation. The

court may dismiss an indigent inmate’s suit even before process is served if the court finds:

        (1) the allegation of poverty in 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); Pedraza v. Tibbs, 826 S.W.2d 695, 698 (Tex.App.--

Houston [1st Dist.] 1992, writ dism’d w.o.j.). Because the trial court did not specify the grounds for

dismissal, we will affirm the decision if any theory is meritorious. Walker v. Gonzales County

Sheriff’s Dep’t., 35 S.W.3d 157, 162 (Tex.App.--Corpus Christi 2000, pet. denied), citing Carr v.

Brasher, 776 S.W.2d 567, 569 (Tex. 1989).

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

allegation of poverty. McCullough v. Dretke, No. 02-07-00294-CV, 2008 WL 4180365, *3

(Tex.App.--Fort Worth Sept. 11, 2008, no pet.). There, McCullough alleged that he was indigent

but stated in the affidavit that he received money from his family. He attached a copy of his trust
account showing a then-current balance of $103.92 and a six-month average balance of $184.92.

McClain alleged he had $2,800. Because McClain’s allegation of poverty was false, the court did

not abuse its discretion in dismissing the suit. We overrule Issue One. Given our resolution of this

issue, it is unnecessary for us to consider Issue Two in which McClain contends that his lawsuit had

an arguable basis in law.

        In Issue Three, McClain contends that his father mistakenly filed the affidavit in this lawsuit

rather than in a suit pending in the Supreme Court on writ of certiorari. We recite his argument in

its entirety:

        It needs to be noted that Appellant’s 11/12/08 [sic] filed in forma pauperis affidavit,
        that didn’t contain false claims or claims in which inmate knew were false, was
        actually filed by mistake and accident.

        Appellant’s dad was given instructions to file in forma pauperis paperwork with the
        petition. But that request was actually in relation to a 12/14/08 Supreme Court
        Petition for Writ of Certiorari, case no. 08-7797, and not in regards to this civil
        lawsuit that was being filed on 11/12/08.

        Appellant also considers himself not responsible for having filed the in forma
        pauperis affidavit, even though there is no false information contained in it, as: 1)
        Appellant didn’t know in forma pauperis paperwork was being filed, 2) Appellant
        would have mailed himself, in forma pauperis paperwork directly from prison and
        not have a third party file it, 3) finally Appellant believed that the lawsuit was going
        to be initially paid for and therefore not filed in forma pauperis.

        Due to the fact that the in forma pauperis application was filed by mistake and by
        accident, and because it contained no false statements and/or false statements that
        inmate knew were false, it is asked that the ruling the judge made on 11/21/08 be
        reversed, and this lawsuit allowed to commence forward.

The clerk’s record contains an unsworn and unverified statement by Thomas McClain concerning

his mistake. There is no indication that he appeared at the hearing, and the statement is dated

December 5, 2008, fourteen days after the hearing.

        In his motion to reinstate, Appellant vigorously argued that, “I DID NOT KNOW THIS
PAPERWORK WAS BEING FILED!!!” We find three points to be significant. First, the original

petition was filed without payment of costs. Second, upon receiving notice that the clerk contested

his indigency, McClain did not ensure that costs were paid. Third, in his motion to reinstate,

McClain never offered to tender costs. Indeed, he unsuccessfully sought leave to proceed in forma

pauperis on appeal. His affidavit with the appellate court clerk reflects gifts of $2,400 within the

past twelve months. He lists his monthly income at $200 and cash on hand of less than $1,000. The

certified trust account still shows an available balance of $1,064.45. Regardless of whether McClain

intended the affidavit to be filed in this litigation, the trial court acted well within its discretion in

disbelieving his protests. We overrule Issue Three and affirm the judgment of the trial court.


April 22, 2010
                                                         ANN CRAWFORD McCLURE, Justice

Before Chew, C.J., McClure, and Rivera, JJ.
