                                        NO. 12-09-00342-CV

                           IN THE COURT OF APPEALS

                 TWELFTH COURT OF APPEALS DISTRICT

                                            TYLER, TEXAS

ANTHONY WAYNE WHITE,                                  §                 APPEAL FROM THE 87TH
APPELLANT

V.                                                    §                 JUDICIAL DISTRICT COURT

THE STATE OF TEXAS, ET AL,
APPELLEES                                             §                 ANDERSON COUNTY, TEXAS

                                        MEMORANDUM OPINION
         Anthony Wayne White appeals the dismissal of his civil suit against the State of Texas.
White raises five issues. The State of Texas did not file a brief. We affirm.


                                                  BACKGROUND
         White is an inmate in the Texas Department of Criminal Justice. On September 14, 2009,
White, proceeding pro se, filed this lawsuit against Appellees, the State of Texas, the Texas
Board of Criminal Justice, the Texas Department of Criminal Justice, and an employee of the
State of Texas.        In his suit, White alleged that he received deficient representation from
appointed counsel on a pending criminal case and that there was a conspiracy between the
appellees to deprive convicted offenders who “receive additional charges” of their due process
rights. White sought monetary damages and injunctive relief.
         The trial court found that this lawsuit was governed by chapter fourteen of the Texas
Civil Practice and Remedies Code. The trial court also found that White did not include an
affidavit or other declaration describing his prior lawsuits1 and did not include a copy of the
written decision from the internal Texas Department of Justice grievance system.                           Both are

         1
          White conceded in his pleadings in the trial court that he had been involved in prior litigation and that he
had not provided the required information with his pleadings in this case.
requirements for those bringing suit pro se and in forma pauperis, like White, and so the trial
court dismissed White’s lawsuit. This appeal followed.


                        DISMISSAL OF SUIT UNDER CHAPTER FOURTEEN
       In five issues, White argues that the trial court erred when it dismissed his lawsuit.
Specifically, White argues that chapter fourteen of the Texas Civil Practice and Remedies Code
violates his due process rights, that dismissal is not required for failure to meet the statutory
requirements because chapter fourteen was not applicable to his lawsuit, that the trial court erred
in failing to file findings of fact and conclusions of law, and that the trial court should have
granted a hearing on his motion to reinstate.
Applicable Law and Standard of Review
       Chapter fourteen of the Texas Civil Practice and Remedies Code applies to a lawsuit
brought by a pro se inmate who has filed an affidavit or unsworn declaration of inability to pay
costs (in forma pauperis) and imposes several procedural requirements for those lawsuits. See
TEX. CIV. PRAC. & REM. CODE ANN. §§ 14.002–.006 (Vernon 2002); Garrett v. Borden, 283
S.W.3d 852, 853 (Tex. 2009). Chapter fourteen requires, in part, that an inmate proceeding in
forma pauperis disclose the details of any prior lawsuits and provide a copy of the written
decision from the grievance system within Texas prisons, if the inmate is subject to that system.
See TEX. CIV. PRAC. & REM. CODE ANN. §§ 14.004, 14.005 (Vernon 2002). Generally, an
inmate’s lawsuit may be dismissed if it fails to meet the procedural requirements imposed by
chapter fourteen. See Thompson v. Rodriguez, 99 S.W.3d 328, 330 (Tex. App.–Texarkana
2003, no pet.); Lilly v. Northrep, 100 S.W.3d 335, 336 (Tex. App.–San Antonio 2002, pet.
denied).
       Under chapter fourteen, a trial court may also dismiss a claim if the court finds that the
claim is frivolous or malicious. See TEX. CIV. PRAC. & REM. CODE ANN. § 14.003(a)(2) (Vernon
2002). In determining whether a claim is frivolous or malicious, a trial court may consider
whether the claim is “substantially similar to a previous claim filed by the inmate” that “arises
out of the same operative facts.” Id. § 14.003(b)(4). The inmate litigant must file a separate
affidavit or unsworn declaration describing all other suits the inmate has brought and stating the
“operative facts” for which relief was sought. Id. § 14.004(a)(2)(A). The declaration must state



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the result of any suits, including whether the suit was dismissed as frivolous or malicious. Id.
§ 14.004(a)(2)(D).
       When an inmate files an affidavit or declaration that fails to comply with the
requirements of section 14.004, “the trial court is entitled to assume that the suit is substantially
similar to one previously filed by the inmate, and therefore, frivolous.” Bell v. Tex. Dep’t of
Criminal Justice, 962 S.W.2d 156, 158 (Tex. App.–Houston [14th Dist.] 1998, pet. denied). In
such an instance, the trial court may dismiss a claim on the grounds that it is frivolous or
malicious. See TEX. CIV. PRAC. & REM. CODE ANN. § 14.003(a)(2), (b)(4); Thompson v.
Rodriguez, 99 S.W.3d 328, 330 (Tex. App.–Texarkana 2003, no pet.). If the inmate does not
include a copy of the written decision from the prison grievance system because that process has
not been completed at the time the lawsuit is filed, the trial court must stay the proceedings for a
period not to exceed 180 days to allow the grievance process to be completed. Id. § 14.005(c).
       Our review of the dismissal of an inmate lawsuit is for an abuse of discretion. See
Williams v. Tex. Dep’t of Criminal JusticeBInstitutional Div., 176 S.W.3d 590, 593 (Tex.
App.–Tyler 2005, pet. denied).
Analysis
       In his first issue, White argues that dismissal of his lawsuit for failure to comply with the
statutory requirement that he list his prior lawsuits and provide a final determination from the
prison grievance system violates his due process rights.
       Chapter Fourteen and the “Open Courts” Provision of the Texas Constitution
       Article I, section 13 guarantees that Texas citizens will not be unreasonably denied access
to the courts. This court has previously held that the chapter fourteen procedural requirement
that a lawsuit be brought within thirty days of the conclusion of the prison administrative process
does not violate the open courts provision. See Roberson v. Howell, No. 12-02-00232-CV, 2003
Tex. App. LEXIS 9971, at *4-5 (Tex. App.–Tyler Mar. 14, 2003, pet. denied) (mem. op.).
       As we noted in that case, we evaluate an open courts challenge by asking whether the
litigant has a cognizable common law cause of action that is being restricted and whether the
restriction is unreasonable or arbitrary when balanced against the purpose of and basis for the
restriction. Id. (citing Sax v. Votteler, 648 S.W.2d 661, 666 (Tex. 1983)). Here, the relevant
statute requires that White describe each lawsuit he had previously brought including the



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operative facts, identifying information about the suit, and the outcome. See TEX. CIV. PRAC. &
REM. CODE ANN. § 14.004(a)(2).
         The legislature enacted this modest requirement with the reasonable goal of preserving
scarce judicial resources in light of what it perceived to be the burden of frivolous and malicious
lawsuits by inmates. See, e.g., Carson v. Johnson, 112 F.3d 818, 822 (5th Cir. Tex. 1997) (“It
can hardly be doubted that deterring frivolous and malicious lawsuits, and thereby preserving
scarce judicial resources, is a legitimate state interest. . . . It is similarly undebatable that
prohibiting litigants with a history of frivolous or malicious lawsuits from proceeding [in forma
pauperis] will deter such abuses.”). Despite our request for additional briefing, White does not
advance substantive argument on his due process claim. See TEX. R. APP. P. 38.1(h). Instead,
White provides excerpts from several reported cases, advances complaints about conditions in
the Coffield Unit of the Texas Department of Criminal Justice, and asserts in conclusory fashion
that sections 14.004 and 14.005 of the civil practice and remedies code are unconstitutional
because they violate the open courts provision of the Texas Constitution. See TEX. CONST. art. I,
§ 13.
         Even if we assume that White’s lawsuit raises a cognizable common law cause of action,
the restrictions placed on him in this case are not onerous or unreasonable. Therefore, we hold
that White has not shown that the requirement that pro se inmate litigants proceeding in forma
pauperis describe their prior lawsuit constitutes a denial of the constitutional right of access to
the courts.2 See Thomas v. Bush, 23 S.W.3d 215, 218 (Tex. App.–Beaumont 2000, pet. denied).
We overrule White’s first issue.
         Applicability of Chapter Fourteen
         In his second and third issues, White cites Brown v. Lubbock County Commissioners
Court, 185 S.W.3d 499 (Tex. App.–Amarillo 2005, no pet.) and Leachman v. Dretke, 261
S.W.3d 297, 302–03 (Tex. App.–Fort Worth 2008, no pet.), for the proposition that chapter
fourteen does not apply to his lawsuit because of the kinds of claims he raised and the
individuals he sued. These authorities do not support the conclusion White advances.


         2
            Because White’s admitted failure to disclose prior suits is sufficient to support the trial court’s dismissal
of the lawsuit, we need not consider whether he complied with the statutory requirements as they relate to the
grievance process. C.f. Amir-Sharif v. Mason, 243 S.W.3d 854, 858 (Tex. App.–Dallas 2008, no pet.) (litigant
unable to establish reversible error when he did not argue that trial court erred in dismissing for failure to disclose
prior suits).

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       In Brown, the court held that a dismissal for failure to include a statement of the inmate’s
trust fund account should be without prejudice. The court did not disturb the trial court’s
dismissal of the suit, but it modified the judgment to show that the dismissal was without
prejudice. See Brown, 185 S.W.3d at 503. In Leachman, the trial court dismissed the suit
because it determined, pursuant to section 14.003, that the inmate’s claim had “no arguable basis
in law or in fact.” See Leachman, 261 S.W.3d at 306; see also TEX. CIV. PRAC. & REM. CODE
ANN. § 14.003(b)(2). The appeals court held that all of the claims were properly dismissed but
that one of the claims should not have been dismissed with prejudice because it could have been
amended to state a claim. See Leachman, 261 S.W.3d at 307.
       Neither of these cases supports White’s argument that he was not required to disclose any
prior lawsuits he had filed. His suit was not dismissed for failure to include a statement of his
inmate trust account nor was it dismissed for failure to present an “arguable basis in law or in
fact” pursuant to section 14.003(b)(2).      Furthermore, White’s suit was not dismissed with
prejudice. Accordingly, because White has failed to show that chapter fourteen does not apply to
his suit, we overrule his second and third issues.
       Failure to Hold Hearing or to File Findings of Fact and Conclusions of Law
       In his fourth issue, White argues that the trial court erred by failing to file written
findings of fact and conclusions of law. In his fifth issue, White argues that the trial court erred
because it failed to hold a hearing on his motion to reinstate the lawsuit following its dismissal.
       A trial court is required in certain circumstances to file written findings of fact and
conclusions of law if there is a request by a party. See TEX. R. CIV. P. 296, 297. White asserts
that he made such a request in his postdismissal motion for rehearing, to reinstate, or for
reconsideration. In that motion, White requested a “direct ruling by the court.” Even if we
consider this to be a request for written findings of fact and conclusions of law, this court has
held that rules 296 and 297 do not apply in an inmate suit that is dismissed for failure to comply
with the pleading requirements of chapter fourteen. See Timmons v. Luce, 840 S.W.2d 582, 586
(Tex. App.–Tyler 1992, no writ) (citing Kendrick v. Lynaugh, 804 S.W.2d 153 (Tex. App.–
Houston [14th Dist.] 1990, no writ)); see also Addicks v. Quarterman, No. 12-09-00098-CV,
2011 Tex. App. LEXIS 1077, at *12 (Tex. App.–Tyler Feb. 16, 2011, no pet. h.) (mem. op.). In
that case, we held that a trial court could not make findings of fact since the trial court had



                                                  5
merely dismissed the case because of deficiencies in the pleadings and had not heard any
evidence. See Timmons, 840 S.W.2d at 586.
         As in Timmons, the trial court in this case did not hear any evidence and based its ruling
on deficiencies in White’s pleadings. Therefore, it was not required to file findings of fact and
conclusions of law.3 We overrule White’s fourth issue.
         In his fifth issue, White argues Texas Rule of Civil Procedure 165a required the trial
court to hold a hearing on his motion to reinstate filed after the dismissal order was entered. This
court has previously noted that “[r]ule 165a of the Texas Rules of Procedure applies to
dismissals for want of prosecution” and does not apply to dismissals for failure to comply with
the procedural requirements for pro se in forma pauperis inmate lawsuits. See Stone v. Schull,
No. 12-08-00102-CV, 2008 Tex. App. LEXIS 9367, at *6 (Tex. App.–Tyler Dec. 17, 2008, no
pet.) (mem. op.) (citing Kendrick v. Lynaugh, 804 S.W.2d 153, 155–56 (Tex. App.–Houston
[14th Dist.] 1990, no writ)); see also TEX. R. CIV. P. 165a. Accordingly, White has not shown
that the trial court committed reversible error when it did not hold a hearing on his motion to
reinstate. We overrule White’s fifth issue.


                                                   CONCLUSION
         White was required to include a statement of his prior lawsuits when he filed this case in
the trial court. Because he did not, the trial court was entitled to assume that this lawsuit was
similar to previously filed litigation, to conclude that it was frivolous, and to dismiss it.
Therefore, we affirm the judgment of the trial court. All pending motions are overruled as moot.


                                                                 JAMES T. WORTHEN
                                                                        Chief Justice


Opinion delivered February 28 2011.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                     (PUBLISH)

         3
           We note that the trial court did state in its order that White’s petition was dismissed for failure to include
an affidavit of prior suits and a decision from the grievance system. The order also includes citations to the specific
statutes on which the court relied.

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