                         NUMBER 13-17-00464-CV

                           COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


BOBBY HARTFIELD, JR.
TDCJ #1119719,                                                    Appellant,

                                             v.

WARDEN FURR, ET AL,                                                      Appellees.


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


                      MEMORANDUM OPINION

       Before Justices Contreras, Longoria, and Hinojosa
           Memorandum Opinion by Justice Hinojosa

      Appellant Bobby Hartfield Jr., an inmate proceeding pro se and in forma pauperis,

appeals from a judgment dismissing with prejudice his suit against Warden C. Furr and

Medical Director K. Long, employees of the Texas Department of Criminal Justice—
Institutional Division. In the only cognizable issue that we find in Hartfield’s brief, 1 he

complains that the trial court abused its discretion under chapter 14 of the Texas Civil

Practice and Remedies Code in dismissing his suit with prejudice. See TEX. CIV. PRAC.

& REM. CODE ANN. § 14.003(a) (West, Westlaw through 2017 1st C.S.) (providing that a

court may dismiss an inmate’s claim, either before or after service of process, if the court

finds any one of three factors). We modify the trial court’s judgment and affirm it as

modified.

                                              I. BACKGROUND

        On March 24, 2017, Hartfield, an indigent inmate proceeding without counsel, sued

Furr and Long, in their individual capacities, alleging what we construe to be a premises

defect claim and seeking compensatory damages for injuries allegedly sustained when

his foot got caught in a shower drain. Hartfield attached to his petition his: (1) affidavit

relating to previous filings, which noted no previous filings; (2) unsworn declaration

averring that the facts in his petition were true and correct; (3) Step 2 grievance form,

which appeals the denial of his Step 1 grievance for injuries allegedly sustained by a

shower drain; and (4) application to proceed in forma pauperis and a print out from

Hartfield’s prison trust account. A few days later, Hartfield filed with the trial court his

Step 1 grievance, which alleges that his foot was injured after getting caught in the drain



        1   Hartfield’s issues are: did the trial court abuse its discretion in dismissing his suit, when (1) it
presented a cause of action recognized under Texas law; and (2) all requirements of chapter 14 were
followed; (3) did the trial court convert an amicus curiae filed by the Texas Attorney General’s Office into a
summary judgment and resolve disputed facts in the process; and (4) did Hartfield’s factual allegations
raise a material issue under the Eighth Amendment? Construing Hartfield’s briefing liberally, we find that
his first two issues form the only issue that we deem cognizable. The argument accompanying Hartfield’s
third issue references only federal law governing summary judgment procedure. It is, accordingly,
inadequately briefed. See TEX. R. APP. P. 38.1(i).
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and that prison personnel improperly denied his request to shower in the medical unit.

       By written order, the trial court invited the Texas Attorney General’s Office (the

AG’s Office) to file an amicus curiae advisory. The amicus curiae advisory filed by the

AG’s Office posited three grounds for dismissal under chapter 14. First, it alleges that

Hartfield’s suit was untimely because Hartfield’s Step 2 grievance was overruled on

November 8, 2016, and he filed suit outside the thirty-one day period required by chapter

14. See id. 14.005(b) (West, Westlaw through 2017 1st C.S.) (“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.”).         Second, it alleges that

Hartfield’s affidavit relating to previous filings omitted a suit he filed in 2002 in federal

court. The AG’s Office attached a docket sheet from Hartfield’s 2002 federal suit noting

that it had been dismissed for want of prosecution and for failure to comply with one of

the federal court’s orders. Third, it alleges that Hartfield’s affidavit of poverty is false.

Specifically, the AG’s Office alleged that Hartfield “has received money from his aunt and

his aunt’s church” and that his “trust fund account statement shows a six-month deposit

of $75.00, and his balance dropped from $29.35 to $0.09 just two months prior to filing

this suit, showing that Hartfield could pay court costs if he really wanted to.”

       The trial court signed a final judgment that dismissed Hartfield’s suit with prejudice

as frivolous and for failure to comply with chapter 14 of the Texas Civil Practice and

Remedies Code.

       Within thirty days, Hartfield filed:   (1)   a “motion to alter of [sic] amend the

judgment,” which alerted the court to the filing of a motion for leave to file an amended


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complaint and asserted that a “complaint should not be dismissed for failure to state a

claim unless it appears beyond doubt that Plaintiff can [sic] prove [a] set of facts in support

of his claim . . . ”; (2) a “motion to request leave of court to file amended complaint

amending Hartfield’s previous filing and affidavit of poverty,” which asserted that he

received his Step 2 grievance on December 5, 2016 (notwithstanding the notation that it

was signed on November 8, 2016) and that he filed suit within thirty-one days; (3) an

updated affidavit of poverty; and (4) an updated affidavit of previous filings acknowledging

the 2002 federal court suit. In Hartfield’s motion for leave, he pleaded that he “simply

forgot” about the 2002 federal court suit and that he “never denied receiving money from

his aunt and aunt’s church” and that such funds were used for personal hygiene, cleaning

supplies, writing materials, and other miscellaneous items.

       The trial court did not sign any further orders, and Hartfield timely perfected an

appeal to this Court.

                                        II. DISCUSSION

       In what we construe as Hartfield’s first issue, he complains that the trial court

abused its discretion under chapter 14 of the Texas Civil Practice and Remedies Code in

dismissing his suit with prejudice.

A.     Standard of Review

       We review a dismissal under chapter 14 of the Texas Civil Practice and Remedies

Code for abuse of discretion.      Jackson v. Tex. Dep’t of Crim. Justice–Inst. Div., 28

S.W.3d 811, 813 (Tex. App.—Corpus Christi 2000, pet. denied). A trial court abuses its

discretion if it acts arbitrarily, capriciously, and without reference to any guiding rules or


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principles. Lentworth v. Trahan, 981 S.W.2d 720, 722 (Tex. App.—Houston [1st Dist.]

1998, no pet.). We will affirm a dismissal if it is proper under any legal theory. Johnson

v. Lynaugh, 796 S.W.2d 705, 706–07 (Tex. 1990).

B.     Applicable Law

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

litigation. See TEX. CIV. PRAC. & REM. CODE ANN. § 14.002 (West, Westlaw through 2017

1st C.S.); see also id. §§ 14.001–.014 (West, Westlaw through 2017 1st C.S.). A trial

court may dismiss an inmate’s claim, either before or after service of process, on any

number of grounds. See, e.g., id. § 14.003(a); see also id. §§ 14.004–.006; Gross v.

Carroll, 339 S.W.3d 718, 723 (Tex. App.—Houston [1st Dist.] 2011, no pet.); Scott v.

Gallagher, 209 S.W.3d 262, 265 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (“A trial

court may dismiss an inmate’s lawsuit for failing to comply with the procedural

requirements of Chapter 14.”).     An appellant must attack all independent bases or

grounds that fully support the complained-of ruling. See Gross, 339 S.W.3d at 723;

Britton v. Tex. Dep’t of Crim. Justice, 95 S.W.3d 676, 681–82 (Tex. App.—Houston [1st

Dist.] 2002, no pet.).

       In this case, the trial court dismissed Hartfield’s suit with prejudice. A dismissal

of an inmate’s suit with prejudice constitutes an adjudication on the merits and operates

as if the case had been fully tried and decided. Thomas v. Knight, 52 S.W.3d 292, 295

(Tex. App.—Corpus Christi 2001, pet. denied). As a result, such a dismissal has full res

judicata and collateral estoppel effect which precludes subsequent litigation of the same

causes of action between the parties. Id. A dismissal for failure to comply with the


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conditions set out in chapter 14 is not a dismissal on the merits. See id. (providing that

a dismissal for failure to satisfy section 14.004, regarding an affidavit or unsworn

declaration of previously filed suits, is not a dismissal on the merits). If the inmate’s error

could be remedied through more specific pleading, then a dismissal with prejudice is

improper. Id. at 296.

C.     Analysis

       Hartfield argues that the trial court abused its discretion by dismissing his suit

because he complied with chapter 14.          We disagree.      Two grounds for dismissal

asserted in the amicus curie advisory to the trial court filed by the AG’s Office substantiate

dismissal without prejudice—not dismissal with prejudice. A third ground was simply not

accepted by the trial court.

       First, regarding the timeliness of Hartfield’s suit, the record does not contain an

affidavit or unsworn declaration stating the date that the Step 2 grievance was filed and

when it was received by Hartfield. See TEX. CIV. PRAC. & REM. CODE ANN. § 14.005(a).

Hartfield’s failure to satisfy this condition of chapter 14 may have served as a basis for

the trial court to exercise its discretion and dismiss his suit. See Gallagher, 209 S.W.3d

at 265; see also Newby v. Cunningham, No. 13-07-00613-CV, 2009 WL 620583, at *2–3

(Tex. App.—Corpus Christi Mar. 12, 2009, no pet.) (mem. op.) (holding that a trial court

did not abuse its discretion by dismissing an inmate’s suit under chapter 14 where the

inmate failed to include the disposition of two previous suits).

       Second, in Hartfield’s “motion to request leave of court,” he acknowledged not

disclosing the 2002 federal suit. This too, may have served as a basis for the trial court


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to exercise its discretion and dismiss his suit. See Gallagher, 209 S.W.3d at 265; see

also Newby, 2009 WL 620583, at *2–3.

        Third, the contention that Hartfield’s affidavit of poverty is false was not accepted

by the trial court. To dismiss a suit with prejudice under section 14.003(a)(3), the trial

court must make a finding that the inmate filed an affidavit or unsworn declaration required

by chapter 14 that the inmate knew was false. See TEX. CIV. PRAC. & REM. CODE ANN. §

14.003(a)(3). The judgment in this case makes no such finding.

        Hartfield’s failure to file an affidavit or unsworn declaration regarding the date he

received his Step 2 grievance and his failure to disclose the 2002 federal suit are failures

to comply with the conditions set out in chapter 14, do not support dismissal with

prejudice, and require modification to dismissal without prejudice.                   See Thomas, 52

S.W.3d at 296; see also Newby, 2009 WL 620583, at *2–3. Hartfield’s only cognizable

issue is sustained in part and overruled in part. 2

                                            III. CONCLUSION

        We modify the judgment to reflect that Hartfield’s suit is dismissed “without

prejudice.” We affirm the trial court’s judgment as modified.

                                                                          LETICIA HINOJOSA
                                                                          Justice

Delivered and filed the
28th day of June, 2018.




          2 Hartfield’s fourth issue, regarding the Eighth Amendment, is necessarily premised on the success

of his first issue. See TEX. CIV. PRAC. & REM. CODE ANN. § 14.002(a) (West, Westlaw through 2017 1st
C.S.) (providing that chapter 14 applies to all inmate suits in which an affidavit or unsworn declaration of
inability to pay costs is filed). Therefore, we need not address it. See TEX. R. APP. P. 47.1
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