                              NUMBER 13-17-00582-CV

                                COURT OF APPEALS

                        THIRTEENTH DISTRICT OF TEXAS

                          CORPUS CHRISTI - EDINBURG


ADRIAN LEE,                                                                    Appellant,

                                             v.

TDCJ-CID, ET AL.,                                                             Appellees.


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


                         MEMORANDUM OPINION
  Before Chief Justice Valdez and Justices Rodriguez and Benavides
             Memorandum Opinion by Justice Benavides

       By one issue, appellant Adrian Lee alleges the trial court abused its discretion by

dismissing his complaint against appellee Texas Department of Criminal Justice (TDCJ–

ID).   Lee filed suit alleging multiple violations of his rights while incarcerated including

Equal Protection violations, violation of due process, common law fraud, breach of

contract, and the enforcement of disciplinary rules in an arbitrary and capricious manner.

We affirm.
                                          I.      BACKGROUND

        Lee is currently incarcerated in the McConnell Unit of TDCJ-ID in Beeville. Lee filed

suit pro se under chapter 14 of the Texas Civil Practice and Remedies Code. See TEX.

CIV. PRAC. & REM. CODE ANN. §§ 14.001–14.010 (West, Westlaw through 2017 1st C.S.).

In his petition, Lee claims he was given a false disciplinary case number for attempting to

establish a relationship. Lee states he was found guilty of a lesser included offense and

disciplined accordingly.1 Lee also claims he entered into a contract when he signed his

disciplinary forms and TDCJ–ID breached that contract by failing to follow rules, policy,

and directives contained within the disciplinary handbook.

        On July 25, 2017, the Office of the Attorney General (OAG) filed an amended

amicus curiae advisory brief recommending Lee’s claims be dismissed for failure to comply

with the requirements under Chapter Fourteen of the Texas Civil Practice and Remedies

Code. See id. The OAG recommended three grounds for dismissal under chapter 14.

See id. First, the OAG alleged that Lee was not indigent and his affidavit of poverty was

false. Second, the OAG alleged that Lee had failed to exhaust all administrative remedies.

Lee’s Step 2 grievance was overruled and signed on April 11, 2017, and Lee did not file

suit until May 15, 2017, outside the thirty-one-day period required by chapter 14. See id.

14.005(b) (“A Court shall dismiss a claim if the inmate fails to file the claim before the 31st

day after the date the inmate receives the written decision from the grievance system.”);

see also Wallace v. TDCJ-ID, 36 S.W.3d 607, 610–11 (Tex. App.—Houston [1st Dist.]



         1 In Lee’s petition, he states he was: (1) given a more restrictive environment; (2) given a custody

level of extreme; (3) denied a fair and impartial hearing by defendants by them denying witnesses; (4) denied
pre-hearing due process requirements when he was charged with a new offense; (5) denied a fair and
impartial hearing when given a lesser included offense; (6) denied post hearing procedural safeguards when
TDCJ–ID failed to allow him to review the hearing tapes; and was (7) denied a fair and impartial hearing
when TDCJ–ID applied disciplinary rules against him in an unfair, arbitrary, and capricious manner.

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2000, pet. denied). Third, the OAG alleged that Lee’s claims were frivolous. Lee alleged

changes in his conditions within the prison system, and the OAG stated that changes in

conditions do not implicate due process. See Hamilton v. Williams, 298 S.W.3d 334, 341

(Tex. App.—Fort Worth 2009, pet. denied). The trial court dismissed Lee’s cause of action

with prejudice and found Lee was not indigent. This appeal followed.

                                 II.    DISMISSAL OF CLAIM

       By his sole issue, Lee argues that the trial court abused its discretion in dismissing

his claims pursuant to chapter fourteen of the Texas Civil Practice and Remedies Code.

See id.

       A.     Standard of Review

       We review a dismissal of an inmate's lawsuit in forma pauperis under chapter

fourteen of the civil practice and remedies code for abuse of discretion. See Harrison v.

Tex. Dep’t of Criminal Justice-Inst. Div., 164 S.W.3d 871, 874 (Tex. App.—Corpus Christi

2005, no pet.); Thomas v. Knight, 52 S.W.3d 292, 294 (Tex. App.—Corpus Christi 2001,

pet. denied). A trial court abuses its discretion when it acts without reference to any

guiding rules or principles. Cire v. Cummings, 134 S.W.3d 835, 838-39 (Tex. 2004).

       “Chapter 14 of the Texas Civil Practice and Remedies Code governs inmate

litigation when the inmate claims inability to pay costs.” Douglas v. Moffett, 418 S.W.3d

336, 338 (Tex. App.—Houston [14th Dist.] 2013, no pet.).             “This means that the

requirements of Chapter 14 apply when inmates file an appeal or an original proceeding

in the appellate court the same as when they file actions in the district, county, and justice

courts.” Id. at 339 (quoting Douglas v. Turner, 441 S.W.3d 337, 338 (Tex. App.—Waco

2013, no pet.).



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       The determination of whether a claim has an arguable basis in law “is a legal

question to be reviewed de novo.” Burnett v. Sharp, 328 S.W.3d 594, 600 (Tex. App.—

Houston [14th Dist.] 2010, no pet.); see In re Humphreys, 880 S.W.2d 402, 404 (Tex.

1993). “A claim has no arguable basis in law only if it is based on (1) wholly incredible or

irrational factual allegations; or (2) an indisputably meritless legal theory.” Burnett, 328

S.W.3d at 600. We will affirm the dismissal if it was proper under any legal theory. See

Hamilton v. Pechacek, 319 S.W.3d 801, 809 (Tex. App.—Fort Worth 2010, no pet.).

       Here, the trial court dismissed Lee’s claims with prejudice with a finding that Lee

was not indigent. “A dismissal with prejudice operates as if the case had been fully tried

and decided.” Id. at 810. When reviewing whether the trial court abused its discretion by

dismissing claims with prejudice under chapter 14, this Court should consider whether the

inmate’s error could be remedied with more specific pleading; if so, a dismissal under

chapter 14 is improper. Id.

       B.      Applicable Law and Discussion

       “The legislature enacted chapter 14 of the Texas Civil Practice and Remedies Code

to control the flood of frivolous lawsuits being filed in Texas courts by prison inmates

because these suits consume many valuable judicial resources with little offsetting

benefits.” See id. at 809. “Chapter 14 sets forth procedural requirements an inmate must

satisfy as a prerequisite to filing suit.” Id.

       1.      Affidavit of Indigency

       Section 14.002 states that:

       This chapter applies only to an action, including an appeal or original
       proceeding, brought by an inmate in a district, county, justice of the peace,
       or small claims court or an appellate court, including the supreme court or



                                                 4
        the court of criminal appeals, in which an affidavit or unsworn declaration of
        inability to pay costs is filed by the inmate.

TEX. CIV. PRAC. & REM. CODE § 14.002(a).

        “A plaintiff may file an affidavit of indigency in lieu of paying costs.” McClain v.

Terry, 320 S.W.3d 394, 397 (Tex. App.—El Paso 2010, no pet.) (citing TEX. R. CIV. P. 145).

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. 124(b). “A prisoner at a Texas Department of Criminal

Justice [facility] who has no money or property is considered indigent.” McClain, 320

S.W.3d at 397; Allred v. Lowry, 597 S.W.2d 353, 355 (Tex. 1980). However, “an inmate

who has funds in his trust account is not indigent.” McClain, 320 S.W.3d at 397. Texas

Civil Practice and Remedies Code section 14.006 outlines a formula by which an inmate’s

trust funds can be utilized for payment of court costs.2 See TEX. CIV. PRAC. & REM. CODE

ANN. § 14.006 (West, Westlaw through 2017 1st C.S.).

        Although Lee filed his “Declaration of Inability to Pay Court Costs” on May 16, 2017,

stating he was indigent, he did not include the required printout of his trust account

balance. However, on July 5, 2017, Lee filed an “Inmate Trust Account Statement” with

the District Clerk’s Office. The filed statement shows that from November 2016 through




         2 The trial court may order an inmate to pay court fees, costs, and other costs. See TEX. CIV. PRAC.

& REM. CODE ANN. § 14.006(a) (West, Westlaw through 2017 1st C.S.). The formula considers an amount
equal to the lesser of either 20 percent of the last six months of deposits in the inmate’s trust account or the
total amount ordered. See id.(b). The following month, the amount drops to ten percent of that month’s
deposits in the trust account or the total unpaid balance. See id.(c). This formula continues until the inmate
is released from confinement. See id.(d).

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April 2017, Lee had funds in his inmate trust account. Since he had money available in

his trust account, Lee is not considered indigent. See McClain, 320 S.W.3d at 397. The

trial court properly dismissed Lee’s claim based on the fact his affidavit of indigency was

untrue. See TEX. CIV. PRAC. & REM. CODE ANN. § 14.003. We overrule Lee’s sole issue.3

                                                 III.    CONCLUSION

        We affirm the trial court’s dismissal of Lee’s claim.



                                                                              GINA M. BENAVIDES,
                                                                              Justice



Delivered and filed the
12th day of July, 2018.




         3 Even if Lee could correct any defect in his filing, we find the trial court properly dismissed his suit

with prejudice. See TEX. CIV. PRAC. & REM. CODE ANN.§ 14.003(a). Lee’s allegations were frivolous and had
no arguable basis in law. See id.; see also Burnett v. Sharp, 328 S.W.3d 594, 600 (Tex. App.—Houston
[14th Dist.] 2010, no pet.) (describing what qualifies as “no arguable basis in law”). Lee’s arguments
centered around changes in his conditions within the prison and therefore do not implicate a due process
challenge. See Hamilton v. Williams, 298 S.W.3d 334, 341 (Tex. App.—Fort Worth 2009, pet. denied).

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