                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-13-00130-CV


EMMIT BRAGER                                                   APPELLANT

                                       V.

LISA JAMES, JAMES ANDERS,                                      APPELLEES
TERRY L. SMITH, MARY ALFORD,
CHARLES J. VONDRA, AND ERIC
JOHNSTON


                                    ----------

          FROM THE 89TH DISTRICT COURT OF WICHITA COUNTY

                                    ----------

                        MEMORANDUM OPINION 1

                                    ----------

      Appellant Emmit Brager appeals from the trial court’s dismissal of his

claims against Appellees Lisa James, James Anders, Terry L. Smith, Mary

Alford, Charles J. Vondra, and Eric Johnston. We affirm.



      1
      See Tex. R. App. P. 47.4.
      Brager is a current inmate housed in the Texas Department of Criminal

Justice, Institutional Division. On September 17, 2012, Brager filed a state-court

petition against James, Anders, “John Doe” of the Inmate Trust Fund

Department, Smith, and Vondra. Brager alleged that, on May 10, 2012, “John

Doe” withdrew $1,151.59 from his inmate-trust account based on James’s

authorization and Anders’s approval.          Apparently, the funds at issue were

forfeited after an internal investigation revealed that Brager had received the

money by fraudulently claiming entitlement to a class-action settlement. Brager

argued the forfeiture of the money violated his due-process rights and that the

disciplinary case brought by James after the investigation, which Anders

(James’s supervisor) approved, constituted unlawful retaliation. Finally, Brager

alleged that Smith confiscated his radio without due process on April 26, 2012,

which was approved by Vondra, Smith’s supervisor.

      Along with his petition, Brager filed a motion to proceed in forma pauperis

accompanied by an affidavit relating to his previous filings, a certified copy of his

trust-account statement, and an affidavit regarding his exhaustion of the

grievance system. See Tex. Civ. Prac. & Rem. Code Ann. § 14.004 (West Supp.

2013), § 14.005 (West 2002). In his previous-filings affidavit, Brager listed ten

state-court actions he had filed. Brager stated that regarding many of these

actions, he could “not recall” what claims he had raised or why the case was

dismissed. For one of the ten actions, Brager averred that he did “not recall” the

case “at all” and that he “may not have filed this case at all.”

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      Alford, believing that she was the “John Doe” in Brager’s petition, filed an

answer. Brager responded, however, that Alford was not his intended defendant.

Later, Johnston was served and answered as the intended “John Doe.” Anders,

James, Smith, Vondra, Alford, and Johnston filed motions to dismiss Brager’s

claims under chapter 14 of the civil practice and remedies code. The motions

were similar and argued that Brager’s claims should be dismissed because

(1) he had failed to file a compliant affidavit relating to his previous lawsuits and

(2) his claims were frivolous as having no arguable legal basis.            See id.

§ 14.003(a)(2) (West 2002), § 14.004 (West Supp. 2013).

      As part of his responses to the motions to dismiss, Brager filed a second

previous-filings affidavit stating that he had “filed a number of state and federal

habeas corpus applications” but that he did not “possess any of the documents in

those cases,” although one had been dismissed. He also disclosed that he had

filed a “recent disciplinary case[]” that did not “involve any of the defendants

named in the [instant case].” Finally, Brager asserted that he had filed “lawsuits

in federal court,” but he did “not possess and [did] not recall the claim of those

lawsuits nor the defendants[’] names”; however, Brager stated that none of the

suits were currently pending and none involved the defendants named in the

instant action. However, one federal-court action that Brager admitted he filed

previously but voluntarily dismissed was brought against James, who is a

defendant in the instant action. Brager explained that he believed section 14.004

solely required disclosure of state-court actions.

                                         3
      On February 25, 2013, the trial court “considered” Anders, Smith, Vondra,

James, and Alford’s motion and entered a final judgment ordering “that Plaintiff’s

entire suit is DISMISSED AS FRIVOLOUS and for failure to comply with Chapter

14 of the Texas Civil Practice and Remedies Code.” On March 21, 2013, the trial

court entered a second final judgment after considering Johnston’s motion to

dismiss and ordered “that Plaintiff’s entire suit is DISMISSED AS FRIVOLOUS

and for failure to comply with Chapter 14 of the Texas Civil Practice and

Remedies Code.” Both judgments stated that “all claims and all parties to this

suit” were disposed of by the judgment and that it was “final.”

      After each judgment, Brager requested that the trial court enter findings of

fact and conclusions of law and, later, filed a notice of past due findings and

conclusions. See Tex. R. Civ. P. 296, 297. The trial court did not enter the

requested findings and conclusions, presumably because rules 296 and 297 do

not apply when an inmate’s case is dismissed under chapter 14. See Retzlaff v.

Tex. Dep’t of Criminal Justice, 94 S.W.3d 650, 655 (Tex. App.—Houston [14th

Dist.] 2002, pet. denied) (citing Timmons v. Luce, 840 S.W.2d 582, 586 (Tex.

App.—Tyler 1992, no writ)). Brager then filed a notice of appeal.

      In one issue, Brager asserts that the trial court abused its discretion by

dismissing his claims. Indeed, we review a trial court’s decision to dismiss an

inmate’s claims under chapter 14 for an abuse of discretion. Wallace v. Tex.

Dep’t of Criminal Justice–Inst. Div., 36 S.W.3d 607, 610 (Tex. App.—Houston

[1st Dist.] 2000, pet. denied).   A court abuses its discretion if it acts without

                                         4
reference to guiding rules or principles.       Id.   However, “we will affirm the

dismissal if it was proper under any legal theory” advanced in the motion to

dismiss. Hamilton v. Pechacek, 319 S.W.3d 801, 809 (Tex. App.—Fort Worth

2010, no pet.).

      We conclude that the trial court did not abuse its discretion by dismissing

Brager’s claims on the basis that his previous-filings affidavits were insufficient.

The purpose of section 14.004 is to curb constant, often duplicative, inmate

litigation by requiring the inmate to notify the trial court of previous litigation and

the outcome. Bell v. Tex. Dep’t of Criminal Justice–Inst. Div., 962 S.W.2d 156,

158 (Tex. App.—Houston [14th Dist.] 1998, pet. denied). Based on the supplied

information, the trial court may determine, based on the previous filings, whether

the pending lawsuit is frivolous because it is substantially similar to a prior claim

filed by the inmate. Samuels v. Strain, 11 S.W.3d 404, 406–07 (Tex. App.—

Houston [1st Dist.] 2000, no pet.). As pointed out in the motions to dismiss,

Brager’s previous-filings affidavits did not comply with section 14.004 because

they did not include all of his previous filings as a prisoner, did not include the

operative facts of any of the lawsuits, and failed to indicate how each case was

disposed of. See Tex. Civ. Prac. & Rem. Code Ann. § 14.004(a)(2). As such,

the trial court could presume that the suit was substantially similar to a previously

filed suit and dismiss the suit as frivolous. See Clark v. J.W. Estelle Unit, 23

S.W.3d 420, 422 (Tex. App.—Houston [1st Dist.] 2000, pet. denied).                The

noncompliance of Brager’s previous-filing affidavits is a sufficient, independent

                                          5
basis to support dismissal of his claims. See Tex. Civ. Prac. & Rem Code Ann.

§ 14.004; Thompson v. Silvas, No. 01-02-01083-CV, 2003 WL 22254950, at *1–2

(Tex. App.—Houston [1st Dist.] Oct. 2, 2003, no pet.) (mem. op.); Thompson v.

Rodriguez, 99 S.W.3d 328, 329–30 (Tex. App.—Texarkana 2003, no pet.). We

overrule Brager’s issue.

      In their brief, James, Anders, Smith, Alford, Vondra, and Johnston argue

that Brager is additionally arguing that the trial court abused its discretion by

failing to specify the bases for dismissal in its final judgment. Although Brager

did not raise this as a specific issue on appeal, we will address it in an

abundance of caution.      After the dismissal, Appellant requested findings and

conclusions under rule 296, which the trial court did not enter. As we stated

above, the rule requiring findings and conclusions after a bench trial is not

applicable to chapter 14 dismissals. See Retzlaff, 94 S.W.3d at 655. In any

event, we are to affirm an order granting a dispositive motion that does not

specify the grounds for dismissal if any of the theories advanced in the motion

supports dismissal. Walker v. Gonzales Cnty. Sheriff’s Dep’t, 35 S.W.3d 157,

162 (Tex. App.—Corpus Christi 2000, pet. denied).             As discussed above,

dismissal on the basis of Brager’s inadequate previous-filings affidavits was a

valid exercise of the trial court’s broad discretion under chapter 14; thus, the trial

court did not abuse its discretion in dismissing Brager’s claims even in the

absence of specific findings and conclusions.



                                          6
      The trial court did not abuse its discretion by dismissing Brager’s claims,

and we affirm the trial court’s judgment. See Tex. R. App. P. 43.2(a).



                                                  /s/ Lee Gabriel
                                                  LEE GABRIEL
                                                  JUSTICE

PANEL: LIVINGSTON, C.J.; MEIER and GABRIEL, JJ.

DELIVERED: February 13, 2014




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