                             NUMBER 13-12-00437-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG

KENNETH HICKMAN,
TDCJ # 665874,                                                               Appellant,

                                            v.

TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, ET AL.,                                                             Appellees.


                    On appeal from the 343rd District Court
                           of Bee County, Texas.


                         MEMORANDUM OPINION
       Before Chief Justice Valdez and Justices Garza and Perkes
                Memorandum Opinion by Justice Garza
       By five issues, appellant Kenneth Hickman, TDCJ # 665874, pro se, challenges

the trial court’s dismissal of his suit against appellees, the Texas Department of Criminal

Justice (“TDCJ”), Robert Eason, and Belinda Fernandez. We will dismiss the appeal as

frivolous.
                                          I. BACKGROUND

        Hickman is an inmate incarcerated in the TDCJ’s McConnell Unit in Beeville,

Texas. Proceeding pro se and in forma pauperis, Hickman filed suit on February 5,

2010 against TDCJ and TDCJ employees Fernandez, Eason, and Candice Moore. The

lawsuit asserted claims under section 1983 of title 42 of the United States Code and the

Texas Tort Claims Act, and requested injunctive and declaratory relief and damages.

See 42 U.S.C. § 1983; TEX. CIV. PRAC. & REM. CODE ANN. ch. 101 (West Supp. 2011).

In an amended petition filed on November 7, 2011, Hickman made the following specific

allegations: (1) defendants denied him access to courts by refusing to give him access

to legal materials; (2) TDCJ denied him access to courts by “illegal[ly] garnish[ing]” his

trust account; (3) Moore “fail[ed] to stop inmates from stealing legal supplies intended

for [Hickman]”; and (4) Moore “misappli[ed] the Texas Open Records [Act] to deny

[Hickman] proof of her illegal acts.”

        After a hearing, the trial court dismissed the claims made against TDCJ, Eason

and Fernandez, under chapter 14 of the Texas Civil Practice and Remedies Code.1

See TEX. CIV. PRAC. & REM. CODE ANN. ch. 14 (West Supp. 2011) (regarding inmate

litigation). The trial court concluded, among other things, that: (1) Hickman failed to file

a complete declaration of previous lawsuits filed as required by statute, see TEX. CIV.

PRAC. & REM. CODE ANN. § 14.004(a); (2) Hickman failed to exhaust his administrative

remedies with respect to the claims made against TDCJ and Fernandez; and (3) the

claims against TDCJ, Eason, and Fernandez are frivolous because they lack basis in

law and fact.


        1
           The claims against Moore were retained; however, the trial court ordered Hickman to amend his
petition to clarify those claims.

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        Hickman attempted to perfect an appeal of the order dismissing his claims

against TDCJ, Eason, and Fernandez.               On November 22, 2011, this Court notified

Hickman that the order being appealed was not a final, appealable order. Hickman

contended that the interlocutory order was reviewable because the order constituted a

ruling on a plea to the jurisdiction. See id. § 51.014(a)(5) (West Supp. 2011) (permitting

appeal of interlocutory order granting or denying a plea to the jurisdiction filed by a

governmental unit). We disagreed and dismissed Hickman’s appeal. Hickman v. Tex.

Dep’t of Criminal Justice, No. 13-11-00729-CV, 2012 Tex. App. LEXIS 1454 (Tex.

App.—Corpus Christi Feb. 23, 2012, no pet.) (mem. op.). We noted that, according to

the record, the appealed order was a dismissal under chapter 14, not a ruling on a plea

to the jurisdiction. Id. at *2 (citing TEX. CIV. PRAC. & REM. CODE ANN. § 14.010(c) (stating

that an order dismissing a claim under chapter 14 “is not subject to interlocutory appeal

by the inmate”)).

        Subsequently, the trial court rendered an order severing the claims against

TDCJ, Eason and Fernandez into a separate cause number. The order denying the

claims against those defendants thereby became a final, appealable judgment, which

Hickman appealed.2

                                           II. DISCUSSION

        Effective January 1, 2012, chapter 14 of the civil practice and remedies code was

amended to apply to an action, including an appeal or an original proceeding, brought

        2
         In his appellate brief, Hickman names TDCJ, Moore, and Fernandez as appellees. However,
Hickman’s claims against Moore are still pending in the trial court and were not disposed of by the order
being appealed. Accordingly, Moore is not a party to this appeal.

        Hickman further states that “defendant Robert Eason was never an [i]ntended defendant in this
cause and was served and joined as a party by the counsel of the defendants.” We construe this
statement as a declaration by Hickman that he does not challenge, by this appeal, the dismissal of any
claims made against Eason. Accordingly, we do not address any claims made against Eason.

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by an inmate in a district, county, justice of the peace, or small claims court, or an

appellate court in which an affidavit or unsworn declaration of inability to pay costs is

also filed. TEX. CIV. PRAC. & REM. CODE ANN. § 14.002 (emphasis added to reflect

changes). “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.” Douglas v. Turner, No. 10-13-00031-

CV, 2013 Tex. App. LEXIS 5747, at *1–2 (Tex. App.—Waco May 9, 2013, no pet. h.);

see Lackey v. Green, No. 12-11-00209-CV, 2012 Tex. App. LEXIS 6496, at *4 n.4 (Tex.

App.—Tyler Aug. 8, 2012, pet. denied) (mem. op.); Bonner v. Austin, No. 01-09-01059-

CV, 2012 Tex. App. LEXIS 6028, at *2 n.1 (Tex. App.—Houston [1st Dist.] July 24,

2012, order); Hills v. Bell County Law Enforcement Ctr., Nos. 03-11-00482-CV & 03-11-

00487-CV, 2012 Tex. App. LEXIS 2128, at *3 n.4 (Tex. App.—Austin Mar. 15, 2012,

pet. denied) (mem. op.).

      Chapter 14 requires an inmate litigant to file an affidavit or declaration “relating to

previous filings” in which the inmate must detail all previous actions filed pro se, other

than a suit under the Family Code. TEX. CIV. PRAC. & REM. CODE ANN. § 14.004(a);

Douglas, 2013 Tex. App. LEXIS 5747, at *2; Amir-Sharif v. Mason, 243 S.W.3d 854,

857 (Tex. App.—Dallas 2008, no pet.). In addition, the inmate is required to file a

certified copy of his “inmate trust account statement” that “reflect[s] the balance of the

account at the time the claim is filed and activity in the account during the six months

preceding the date on which the claim is filed.” TEX. CIV. PRAC. & REM. CODE ANN. §§

14.004(c), 14.006(f); Douglas, 2013 Tex. App. LEXIS 5747, at *3; Amir-Sharif, 243

S.W.3d at 857. The filings required under chapter 14 are “an essential part of the



                                             4
process by which courts review inmate litigation.” Douglas, 2013 Tex. App. LEXIS

5747, at *3 (citing Hickson v. Moya, 926 S.W.2d 397, 399 (Tex. App.—Waco 1996, no

writ)).

          The failure to file the affidavit with the required information or the inmate account

statement can result in dismissal without notice or hearing. Id.; Amir-Sharif, 243 S.W.3d

at 855; Thompson v. Rodriguez, 99 S.W.3d 328, 329–30 (Tex. App.—Texarkana 2003,

no pet.); Jackson v. Tex. Dep’t of Criminal Justice, 28 S.W.3d 811, 814 (Tex. App.—

Corpus Christi 2000, pet. denied) (reviewing several cases dismissing inmate litigation

for failure to comply fully with the affidavit requirement). Further, when an inmate fails

to comply with the affidavit requirements, the trial court may assume that the current

action is substantially similar to one previously filed by an inmate and thus is frivolous.

Douglas, 2013 Tex. App. LEXIS 5747, at *3; Bell v. Tex. Dep’t of Criminal Justice, 962

S.W.2d 156, 158 (Tex. App.—Houston [14th Dist.] 1998, pet. denied). The case law

interpreting the chapter 14 requirements as they apply to actions filed in trial courts also

applies to actions filed in an appellate court on or after January 1, 2012. Douglas, 2013

Tex. App. LEXIS 5747, at *3.

          Here, Hickman did not file an affidavit of previous filings or a certified copy of his

inmate “trust” account with his notice of appeal. Because the requirements of chapter

14 now apply to inmate proceedings in the courts of appeals, we dismiss the appeal

without notice.      See id. (dismissing inmate’s appeal without notice for failure to file

affidavits required by chapter 14 with notice of appeal); see also Johnson v. Sanford,

No. 10-13-00177-CV, 2013 Tex. App. LEXIS 7303, at *1 (Tex. App.—Waco June 13,

2013, no pet. h.) (mem. op.) (same); Mullins v. Holt, No. 10-13-00114-CV, 2013 Tex.



                                                5
App. LEXIS 6128, at *4 (Tex. App.—Waco May 9, 2013, no pet. h.) (mem. op.) (same).

                                   III. CONCLUSION

      Because Hickman did not comply with the chapter 14 affidavit requirements, his

appeal is dismissed as frivolous. See Douglas, 2013 Tex. App. LEXIS 5747, at *3; Bell,

962 S.W.2d at 158. Any and all pending motions are denied as moot.

                                              ________________________
                                              DORI CONTRERAS GARZA,
                                              Justice

Delivered and filed the
18th day of July, 2013.




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