                                  NO. 12-12-00091-CV

                      IN THE COURT OF APPEALS

              TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

JESSE PAUL SKINNER,                            §           APPEAL FROM THE 3RD
APPELLANT


V.                                             §           JUDICIAL DISTRICT COURT

TEXAS DEPARTMENT OF CRIMINAL
JUSTICE CORRECTIONAL
INSTITUTIONAL DIVISION,
ANGELA BRICE, AND JEREMY LARUE,
APPELLEES                       §                          HOUSTON COUNTY, TEXAS

                                  MEMORANDUM OPINION
       Jesse Paul Skinner, an inmate in the Texas Department of Criminal Justice-Institutional
Division (TDCJ), proceeding pro se, appeals the dismissal of his in forma pauperis suit against
TDCJ and TDCJ employees Angela Brice and Jeremy Larue (collectively Appellees). Skinner
raises two issues on appeal. We affirm.


                                          BACKGROUND
       Skinner is an inmate. While incarcerated, Skinner filed a civil suit against Appellees
alleging that they are liable in tort for injuries he sustained when, despite his medical work
restriction, he was ordered by Brice and Larue to push a cart on which rested two fifty-five
gallon drums full of water. By his suit, Skinner sought recovery of compensatory damages from
Appellees for their negligence.
       On January 30, 2012, without conducting a hearing, the trial court found that Skinner’s
suit was “frivolous or malicious” and dismissed it without prejudice. This appeal followed.
     DISMISSAL PURSUANT TO TEXAS CIVIL PRACTICE AND REMEDIES CODE CHAPTER 14
        In his first issue, Skinner argues that the trial court improperly dismissed his suit pursuant
to Texas Civil Practice and Remedies Code, Section 14.003.                       We review the trial court’s
dismissal of an in forma pauperis suit under an abuse of discretion standard. Hickson v. Moya,
926 S.W.2d 397, 398 (Tex. App.–Waco 1996, no writ). A trial court abuses its discretion if it
acts arbitrarily, capriciously, and without reference to any guiding rules or principles. Lentworth
v. Trahan, 981 S.W.2d 720, 722 (Tex. App.–Houston [1st Dist.] 1998, no pet.). The trial courts
are given broad discretion to determine whether a case should be dismissed because (1) prisoners
have a strong incentive to litigate; (2) the government bears the cost of an in forma pauperis suit;
(3) sanctions are not effective; and (4) the dismissal of unmeritorious claims accrues to the
benefit of state officials, courts, and meritorious claimants. See Montana v. Patterson, 894
S.W.2d 812, 814–15 (Tex. App.–Tyler 1994, no writ).
        In the instant case, the trial found that Skinner’s claim is “frivolous or malicious.”
However, we will affirm a trial court’s dismissal under Chapter 14 if it was proper under any
legal theory. See Johnson v. Lynaugh, 796 S.W.2d 705, 706–07 (Tex. 1990); Birdo v. Ament,
814 S.W.2d 808, 810 (Tex. App.–Waco 1991, writ denied).
        Chapter 14 of the Texas Civil Practice and Remedies Code controls suits brought by an
inmate in which the inmate has filed an affidavit or unsworn declaration of inability to pay
costs.1 TEX. CIV. PRAC. & REM. CODE ANN. § 14.002(a) (West Supp. 2012); Hickson, 926
S.W.2d at 398. Texas Rule of Civil Procedure 145 sets forth the requirements of an affidavit on
indigency as follows:


                 (a)      Affidavit. In lieu of paying or giving security for costs of an original action, a
        party who is unable to afford costs must file an affidavit as herein described. A “party who is
        unable to afford costs” is defined as a person who is presently receiving a governmental
        entitlement based on indigency or any other person who has no ability to pay costs . . . .

                 (b)       Contents of Affidavit. The affidavit must contain complete information as to the
        party’s identity, 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. The affidavit shall contain the following statements: “I am unable to pay the
        court costs. I verify that the statements made in this affidavit are true and correct.” . . . .


        1
          Chapter 14 does not apply to suits brought under the Family Code. TEX. CIV. PRAC. & REM. CODE ANN.
§ 14.002(b) (West Supp. 2012).




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TEX. R. CIV. P. 145(a), (b) (emphasis added). To enable the court to determine whether an
inmate is indigent, Sections 14.004(c) and 14.006(f) require the inmate 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) (West 2002 & Supp. 2012).
Section 14.003 provides that a trial court may dismiss a claim before or after service of process if
the court finds that the inmate’s allegation of poverty in the affidavit or unsworn declaration is
false. See TEX. CIV. PRAC. & REM. CODE ANN. § 14.003(a)(1) (West 2002).
         Generally, the test for determining entitlement to proceed in forma pauperis is whether
the preponderance of the evidence shows that the appellant would be unable to pay the costs of
his suit if he wanted to and made a good faith effort to do so. See Griffin Indus. v. Thirteenth
Court of Appeals, 934 S.W.2d 349, 351 (Tex. 1996). A prisoner at a Texas Department of
Criminal Justice facility who has no money or property is considered indigent. McClain v.
Terry, 320 S.W.3d 394, 397 (Tex. App.–El Paso 2010, no pet.) (citing Allred v. Lowry, 597
S.W.2d 353, 355 (Tex. 1980)). However, “[a]n inmate who has funds in his trust account is not
indigent.”      Terry, 320 S.W.3d at 397 (citing TEX. CIV. PRAC. & REM. CODE ANN.
§ 14.006(b)(1)). The statute outlines a formula by which an inmate’s trust funds can be utilized
for payment of costs. Terry, 320 S.W.3d at 397 (citing TEX. CIV. PRAC. & REM. CODE ANN.
§ 14.006(b)(1)).
         In the case at hand, in his sworn declaration of inability to pay costs, Skinner stated, in
pertinent part, as follows: “I am unable to pay the court cost at this time because I am indigent
and incarcerated.”2 As required, Skinner also filed a certified copy of his inmate trust account
statement. At the time the trust account statement was prepared, Skinner had a balance of
$90.00, and the average monthly balance in the six month period preceding his suit was $21.36.
Further, the average amount deposited each month in the preceding six months was $73.33.
Moreover, in the six months preceding the filing of his lawsuit, $440.00 had been deposited in
Skinner’s account, $210.00 of which had been deposited in the three month period prior to the
date Skinner filed suit.


         2
           Skinner earlier stated in his declaration that he had “another source of income” sent to him by family and
a friend that amounted to $70 per month. Skinner further set forth that he had $90 in his prison trust account, but
that he had monthly expenses in the amount of $90 for court fees, medical fees, personal hygiene, and postage to
communicate with family. Skinner also stated that he has received an average of $440 in the past six months.


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        In sum, because Skinner had funds in his inmate trust account, he is not considered
indigent, and therefore his allegation of indigency was false. See Terry, 320 S.W.3d at 397; see
also Foster v. Comal Cnty. Sheriff, No. 03-08-00539-CV, 2009 WL 2476652, at *2 (Tex. App.–
Austin Aug. 13, 2009, no pet.) (mem. op.) (citing TEX. R. CIV. P. 145(a) (defining “party who is
unable to afford costs” as “a person who is presently receiving a governmental entitlement based
on indigency or any other person who has no ability to pay costs” (emphasis added)); see also
TEX. GOV’T CODE ANN. § 501.014(e)(4) (West 2012) (authorizing withdrawal of money from
inmate trust accounts “as payment in full for all orders for court fees and costs”). Accordingly,
we hold that the trial court did not abuse its discretion in dismissing Skinner’s suit because
Skinner made a false allegation of indigency in his declaration of inability to pay costs. See
TEX. CIV. PRAC. & REM. CODE ANN. § 14.003(a)(1); McClain, 320 S.W.3d at 398. Skinner’s
first issue is overruled.



                            FINDINGS OF FACT AND CONCLUSIONS OF LAW
        In his second issue, Skinner contends that the trial court erred in failing to issue findings
of fact and conclusions of law following his request for them.
        In any nonjury case tried in a district or county court, a party may file a request for the
trial court to issue written findings of fact and conclusions of law, so long as the request is filed
within twenty days after the judgment is signed. See TEX. R. CIV. P. 296. Additionally, the trial
court shall file its findings of fact and conclusions of law within twenty days after a timely
request is filed. TEX. R. CIV. P. 297.
        However, the trial court has no duty to file findings of fact or conclusions of law where
there has been no trial or evidentiary hearing. Kendrick v. Lynaugh, 804 S.W.2d 153, 156 (Tex.
App.–Houston [14th Dist.] 1990, no pet.). This rule has been applied to indigent pro se inmate
suits under Chapter Fourteen. Addicks v. Quarterman, No. 12-09-00098-CV, 2011 WL 597148,
at *1 (Tex. App.–Tyler Feb. 16, 2011, no pet.) (mem. op., not designated for publication); see
Teague v. Livingston, No. 01–10–00075–CV, 2010 WL 4056853, at *2 (Tex. App.–Houston
[1st Dist.] Oct. 14, 2010, no pet.) (mem. op., not designated for publication). Here, the trial court
dismissed Skinner’s case without a trial and without holding an evidentiary hearing. Therefore,
the court was not required to file findings of fact and conclusions of law. Addicks, 2011 WL




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597148, at *2. Accordingly, we hold that the trial court did not err in denying Skinner’s request
for findings of fact and conclusions of law. Skinner’s second issue is overruled.


                                                    DISPOSITION
         Having overruled Skinner’s first and second issues, we affirm the trial court’s judgment.
All pending motions are overruled as moot.


                                                                JAMES T. WORTHEN
                                                                  Chief Justice


Opinion delivered February 13, 2013.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                    (PUBLISH)




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                                  COURT OF APPEALS
      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
                                           JUDGMENT

                                         FEBRUARY 13, 2013


                                         NO. 12-12-00091-CV


                          JESSE PAUL SKINNER,
                                 Appellant
                                    V.
         TEXAS DEPARTMENT OF CRIMINAL JUSTICE CORRECTIONAL
        INSTITUTIONAL DIVISION, ANGELA BRICE, AND JEREMY LARUE,
                                 Appellees



                            Appeal from the 3rd Judicial District Court
                          of Houston County, Texas. (Tr.Ct.No. 12-0033)

                       THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                       It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, that all pending motions are overruled as moot, and
that this decision be certified to the court below for observance.
                       James T. Worthen, Chief Justice.
                       Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




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