mCD IN COURT OF APPEALS
 19th Court of Appeals District                                                              8/6/2015
        A'J3-6 2015                       No.     12-14-00016-CV


                                     IN    THE    COURT       OF    APPEALS
        TYLER TEXAS
                                    FTH    COURT      OF     APPEALS    DISTRICT
 CATHY S. LUSK, CLERKEI                         TYLER,       TEXAS


   JUAN    ENRIQUEZ,                                    §          APPEAL FROM THE 3RD
   Appellant,

   v.                                                              JUDICIAL   DISTRICT    COURT


   RICK    THALER,     ET   AL.,
   Appellees.                                           §          ANDERSON COUNTY,      TEXAS

                             APPELLANT'S          MOTION       FOR    REHEARING



   TO   THE   HONORABLE      JUDGES        OF    SAID       COURT:


           Juan Enriquez,           Appellant,          pursuant to Rule 49.1,

   Tex.R.App.P, moves the Court for a rehearing,                              averring as

   grounds the following:

                                           I.     JURISDICTION


  _1.     The Record Facts :

          The basis of this appeal is the Order of Dismissal entered

   by the trial court on December 11, 2013.                             The Order of Dismissal

   includes a withdrawal order to the Texas Department of Criminal

  Justice (TDCJ) to "withdraw money from the trust account of the
   inmate in accordance with this order and shall hold the money in
  a separate account [and] shall forward the money to the District
  Clerk of Anderson County .                      "   Order of Dismissal.

          The withdrawal            order here,         unlike withdrawal          orders    under

  Section 501.014, Tex.Gov't Code, which are usually entered

  separately and years after the judgment of conviction,                                  was entered

  under Chapter 14,               of the Texas Divil Practice and Remedies Code,

  as part of the Order of Dismissal                          in this case.
        Appellant filed a Motion to Vacate Judgment, challenging

all indigency decisions and the Withdrawal Order which sought

post-judgment enforcement.        The trial court did not address nor

rule on the Motion to Vacate Judgment.

        "After this cause was submitted to this court for consideration,

Enriquez filed a plea to the jurisdiction."             Memorandum Opinion,

at 2.     Enriquez argues that the Court does not have jurisdiction

because it does not have a final,       appealable order, disposting of

all the issues presented to the trial court.             See Maldonado v.

State, 360 S.W.3d 10, 13        (Tex.App.   —     Amarillo 2010)("the trial

court's disposition of such a motion creates an appealable

order"),    citing to Ramirez v. State,         318 S.W.3d 906,   908 (Tex.App.   —

(Tex.App. -- Waco 2010, no pet.)(holding that "only where [the

withdrawal notification is] properly challenged and denied relief

is there an order that if final from which an inmate can appeal").

        This Court denied Enriquez's plea to jurisdiction, giving

the following reasons:

             (1)   "...   a withdrawal notification [under
        §501.014(e)(4]    is akin to a garnishment action and can
        be contested" by the inmate separately from the judgment
        ordering payment".  Memorandum Opinion, at 3.

             (2)   "The cause before us does not        involve a Section
        501.014 withdrawal notification." Memorandum Opinion,a t 3.

             (3)   "Here, all pending parties and claims were finally
        disposed of and the December 11, 2013 order of dismissal            is
        therefore final."  Memorandum Opinion, at 3.

        Appellant presents first in his motion for rehearing the

jurisdictional question because he contends the Memorandum Opinion

is a legal nullity because the Court does not have jurisdiction

over the appeal.
2.     Reasons Why Rehearing Is
       Mandated By Law:

       The panel's decision to assume jurisdiction in a case where

an appealable and final order does not exist and where the court

did not follow controlling law from the Texas Supreme Court is so

beyond the pale that rehearing is mandated by law. b c°<ty o^ fKt

                A.     Panel Failed to Recognize and To Follow
                     Harrel v. State, 286 3d 315 (Tex. 2008)

       "Texas courts have long recognized that prisoners have a

property interest in their inmate trust accounts.              Harrel v.

State, 286 S.W.3d 315, 317 (Tex. 2008).              This property interest

is the basis for the Harrel decision that prisoners are entitled

to due process protections when withdrawal orders are issued

against them in civil cases.

       In 2008,      the courts of appeals were divided whether a

withdrawal order under §501.014,          Tex.Gov't Code,    was a criminal

matter or a civil        matter.   The Harrel court had to decide that

question to determine its          jurisdiction.     Id. at 317.   The Harrel

court held that a withdrawal notification directing prison

officials to withdraw money from an inmate trust account pursuant

to Section 501.014(e),        Tex.Gov't Code,      is a civil matter akin to

a garnishment action or an action to obtain a turnover order.                 Id.

at   317-319.


       Here,    there is no question whether the withdrawal order is

criminal.       It is a civil matter without question because the

withdrawal notification stems from a civil judgment and was issued
under Section 14,006,    Tex.Civ.Prac.    & Rem.   Code,   a civil statute.

The due process Harrel held was necessary to protect a prisoner's

property interest in his trust account when a withdrawal order is

entered ag.ain.st him apply automatically.     It does not matter whether

the withdrawal order stems from a criminal judgment through the

Texas Government Code or a civil judgment through the Texas Civil

Practice and Remedies Code, the subject prisoner is entitled to the

due process mandated by Harrel.

     Harrel held that "due process requires that an inmate have

an opportunity to contest the dollar amount and statutory basis of

the withdrawal by way of a motion to modify, correct, or rescind

the withdrawal notification ...."        Maldonado v. State, 360 S.W.3d

10, 13 (Tex.App. —     Amarillo 2010).

     The Maldonado court explained that "the trial court's

disposition of such a motion creates an appealable order."

Maldonado, supra, 360 S.W.3d at 13, citing Ramirez v. State, 318

S.W.3d 906, 908 (Tex.App. —     Waco 2020, no pet)(holding that
"only where [the withdrawal notification is] properly challenged
and denied relief is there an order that is final from which an

inmate can appeal").

     The panel's first reason to overrule Appellant's plea to

jurisdiction, namely, that "a withdrawal notification [under
501.014(c)(4), supra], is akin to a garnishment action and can be

contested by the inmate separately from the judgement ordering
payment" makes no sense whatsoever and underscores why the panel
has misunderstood the facts and law in this case.
       First, garnishment orders are usually entered years after

the judgment ordering payment.              In those situations, the prisoner

by time has to challenge the withdrawal order separately because

the appeal from the judgment ordering payment is over.                    Second,

there is nothing in any reported opinion suggesting that due

process protects a prisoner's trust fund property right only

against garnishment orders.            Harrel is not so limited.          It holds

that a prison is entitled to due process to protect his trust

fund property interest whenever any withdrawal order is entered

against him whether it stems from a criminal or a civil judgment.

The panel's implication that only garnishment orders are subject

to due process constraints is imply wrong in the strongest sense

of   the word.     The withdrawal      order   issued   in   this   case stems   from

a civil judgment and it was issued under Chapater 14.006,

Tex.Civ.Prac.      & Rem.    Code,   a civil statute.        Enriquez is entitled

to all the due process protections set forth in Harrel.

       The latter half of the panel's first reason to overule

Enriquez's plea to jurisdiction, namely, that a garnishment order

"can be contested by the inmate separately from the judgment

ordering payment" is useless verbage that contributes nothing to

the issue.       It ignores and fails to address the holding by the

Texarkana court of appeals in I_n r_e Carson, 12 S.W.3d 886 (Tex.App. —

Texarkana 2000), which makes it very clear that the way to

challenge the issues sub judice is by direct appeal from the

dismissal    of suit.       Id,   at 888.
                                                                                               6




       Carson complains because the Division did not use the
       six month period orior to his filinq of suit for its
       calculation,      but    instead        used   a   much   later    time.




       Carson asks us to order the district                      judqe who
       initially heard his case to direct the prison to
       furnish    him   the    information        about     Carson's      trust
       account and to issue a more precise order to pay
       costs based on the proper time frame.  He also
       asks us to order the operatinq officer of the Inmate
       Trust Fund,      Mary Cerilla,           to use the correct time
       period in calculating these costs.

In   re Carson,     supra,     at 887.

       The Carson court did not issue mandamus,                      holding:

       The relief Carson seeks could have been properly
       sought in his direct appeal from the dismissal of
       his sout,  He did not take advantage of clearly
       adequate remedy when it existed,                   so he may not         now
       persue a remedy by mandamus.

In re Carson,       supra,at 888.

      There is not a doubt in Appellant's mind that haa he taken

any other route for relief than direct appeal,                           that this panel

would be citinq Carson why Appellant forfeited his right to

review.     Well,    Appellant did not take another route.                           He took

the route the courts of           appeals told him to take,                   viz:     direct

appeal.

      The   law here    is     that   if   a   withdrawal        order   is    entered

separately from the judqment, it should be appealed separately.

However,    if a withdrawal order is entered as a part of the

judgment,    it should be appealed as part of the appeal from the

dismissal order.        Failure to do so waives the right of review.

In re Carson,       supra,    at 888.
             B.     Panel's   Second      Reason     to Overrule    Plea    to
                      Jurisdiction        Has   No   Basis   In   Law

        The panel's second reason to overrule Appellant's plea to

jurisdiction, namely,         "[t]hat the cause before us does not

involve a Section 501.014 withdrawal notification:,                        has no basis

in   law.


        As pointed out previously,           "Texas courts have long recognized

that prisoners have a property interest in their inmate trust

accounts."        Harrel,   supra,   286 S.W.3d at       317.      This property

interest is the basis for the Harrel holding that prisoners are

entitled to due process protections when withdrawal orders are

issued against them in civil cases.

        Section 501.014 of the Texas Government Code has nothing to

do with the due process to which prisoners are entitled to

protect their property interest in their inmate trust accounts.

In 2008,    the courts of appeals were divided whether a withdrawal

order under §501.014,         Tex.Gov't Code, was a criminal matter or a

civil matter.        The Harrel court had to decide that question to

determine its jurisdiction.               The Harrel court held that a withdrawal

notification directing prison officials to withdraw money from an

inmate trust account pursuant to Section 501.014(e),                       Tex.Gov't

Code,    is a civil matter akin to a garnishment action ar an action

to obtain    a    turnover.    Id.   at   317-319.      Harrel     did   not   exclude

withdrawal orders entered under §14.006 from due process protections.

It included withdrawal orders under §501.014 as civil cases

requiring due process protections.

        Enriquez is entitled to the due process set forth in Harrel

without regard to §501.014.
          C.        Panel's Third Reason to Overrule Plea to
                     Jurisdiction Is Factually Baseless

     The panel's third reason to overrule Appellant's plea to

jurisdiction, namely, that "all pending parties and claims were

finally disposed of and the December 11, 2013 order of dismissal

is therefore final", is factually baseless, as shown by the record:
          1.        The December 11, 2013,         order of dismissal
     issuing a withdrawal order is in the record.                  (CR 133).

         2.    The costs that may be assessed is governed by
    §14.006(b), Tex.Civ.Prac. & Rem. Code:   "(b) On the
    court's order, the inmate shall pay an amount equal to
    the lesser of; (1) 20 percent of the preceding six months'
    deposits to the inmate trust account; or (2) the total
    amount     of   court   fees   and   costs."


          3.        How the information to calculate costs is obtained
    is governed bv §14.006(f), Tex.Civ.Prac. & Rem. Code: "(f)
    the inmate shall file a certified copy of the inmate's trust
    account statement with the court.  The statement must reflect
    the balance of the account at the time the claim is filed and
    activities in the account during the six months preceding the
    date on which the claim is filed.                The court may request the
    information required under this subsection."

         4.    "Enriquez filed his original petition on February 13,
    2012. He filed an affidavit of inability to pay costs on
    February 7, 2012, accompanied by a certified copy of his
    inmate trust account statement showing account information
    for August 2011 through Janaury 2012.  The statement shows
    a total of $570.00 in deposits in the preceding six months ....
    Memorandum Opinion,        at 4.

         5.         Twenty percent of $570.00 is $114.00.

         6.         Enriquez filed a motion to vacate judgment
    challenging the withdrawal order.                (CR 135)

         7.         The trial court did not address or deny the
    motion to vacate judgment.

         8.         Notice of appeal was filed on January 17, 2014.
    (CR 139).

         9.         On April 8, 2014, the bill of costs was filed by
    the district clerk totaling $412.00.                (CR     141)
          There    is a   difference of        $298.00 between     the   $114.00

Enriquez could be charged and the $412.00 costs submitted by the

district         clerk.


          The record belies the panel's purported finding that "all

pending      ... claims were finally disposed of and the December 11,

2013 order of dismissal                is   therefore final."      Memorandum Opinion,

at   3.


          The risk of an erroneous deprivation of Enriquez's trust

fund property interests through the procedures used in this case

is apparent on the face of the record.                       The record reflects

Enriquez was never provided the necessary underlying documents nor

afforded an adequate opportunity to compare the amounts the trial

court could assess by statute to the amounts withdrawn and alert

the court to any alleged errors.

          The reported cases on this issue uniformly hold that only

where the withdrawal notification is properly challenged and denied

relief      is    there   an   order    that   is   final   from which   an   inmate can

appeal.          Maldonado,     supra,      360 S.W.3d at 13;     Ramirez,    supra,   318

S.W.3d at 908; Webb v. State,                  324 S.W.3d 299 (Tex.App.         —   Amarillo

2010)

          The Court needs to rehear this case to apply the correct

record facts and follow the controlling law on what constitutes

a final order from which an inmate can appeal                      in cases where the

trial court enters a withdrawal order for post-judgment enforcement

but does not address or deny the subject prisoner's motion to

vacate,      correct,      or otherwise rescind the withdrawal order.
                                                                     10



                                II.   VENUE


1.   The   Record   Facts:

     Enriquez was placed in prison on July 19, 1968.         E_x parte

Enriquez, 490 S.W.2d 546, 547 (Tex.Cr.App. 1973).         At that

time by law prison officials segregated the prisoners by race.

Enriquez alleged in this action "claims of racial discrimination

and segregation."       Appellees' Brief, at 3.   He alleged the

Appellees "have maintained and operated a racially segregated

and racially discriminatory prison system which discriminates

against Hispanics by denying them equal educational opportunities

and rehabilitative programs, housing them in segregated facilities,

assigned jobs on the basis of race and color, denying them equal

medical and dental treatment,      and disciplining them with harsher

punishments."       Appellees' Brief, at 3.   "Appellant further claims

that Appellees have a policy in place regarding the supervision

of their units that denies equal treatment and services to

Hispanics that are 'provided routinely to Anglo inmates.'"

Appellees'   Brief,    at 3.

     Appellant pled that "Defendants' predecessors in the 1970's

operated racially segregated prisoners in violation of the state

and Federal Constitutions."       Amended Complaint,   at paragraph 9.

     Plaintiff's complaint alleges the ongoing tort of racial

segregation and racial discrimination in the Texas prison system

which accrued when Plaintiff was placed in prison in 1972 and

which continuous to the present time.
                                                                                      11




        "Enriquez initially filed his lawsuit in Travis County

because some of the defendants are located in that county."

Memorandum Opinion,          at 3.

        Defendants moved for venue transfer to Anderson County on

the grounds that Appellant was imprisoned in Anderson County

when the lawsuit was filed,               citing to Section 15.019,          Texas

Civil    Practice    and    Remedies      Code.

        Section 15.019(a), supra,            is a mandatory venue statute

enacted in 1995; however,             it has a Savings Clause which precludes

application of the statute to action which accrued prior to its

effective date of September 1995:

        This Act applies only to a cause of action that accrues
        on or after the effective date of              this     Act.  An action
        that accrued before the effective              date     of this Act is
        governed by the law applicable to the action as it existed
        immediately, before the effective date of this Act and
        that law is continued in effect for that purpose.

Section 10(a), Savings Clause of §15.019,                   Tex.Civ.Prac. & Rem.              Code.

        In their Appellees'          Brief Appellees argued that "'if the

Appellant's chosen venue rests on a permissive venue statute and

the   defendant     files    a   meritorious      motion   to   transfer    based    on   a

mandatory venue provision,               the trial court must grant the motion.'"

Appellees'    Brief,       at 6,   17.

        Appellant filed a Reply Brief, with the permission of this

Court.    He specifically brought to the attention of the Court

the Savings Clause of §15.019(a), supra.                    He also brought to this

Court's attention that he arrived on the Michael                     Unit    in 1987,

that under Rule 87(b), Texas Rules of Civil Procedure,                        "[i]t shall
                                                                          12




not be necessary for a claimant to prove the merits of a cause

of action,      but the existence of a cause of action,    when pleaded

properly,    shall be taken as established as alleged by the

pleadings",     and that   "if there is no evidence that venue was

proper,    the appellate court must reverse the trial court's

erroneous venue ruling       ...."    Reply Brief for Appellant,    at 5-6.

        The panel struck the Reporter's Record of the February 6,

2013,    hearing on Defendants'      motion to transfer venue.     This

lest no evidence in the record supporting Defendants'            motion

to transfer venue to Anderson County.

        The panel did not address or decide Appellant's claim

that the Savings Clause of §15.019,         supra, made the statute

inapplicable to this case nor did the panel address or decide

Appellant's claim that there is no evidence in the record to

establish Anderson County is proper venue since,         except for

the Defendants'     unsworn and unsupported motion to transfer

venue,    there is evidence of any kind supporting venue in

Anderson County as all such possible evidence was struck from

the   record.


_2.     Reasons Why Rehearing
        Is Mandated by Law:

        The panel's decision overruling Appellant's venue arguments

requires rehearing b ecause (1) the panel did not comply with Rule

87(b), TRAP, which requires that pleaded claims be accepted,              (2)

the panel did not address Appellant's claim that the Savings
                                                                      13




Clause of §15.019, supra, made it inapplicable to this lawsuit,

and did not address or decide Appellant's insufficient/no

probative evidence claim, notwithstanding that all evidence that
might support venue transfer was stricken from the record.
                         A.   Panel   Failed To Follow
                          Rule 87(b), Tex.R.Civ.P.

     The record reflects Enriquez was placed in prison in 1968.

He was located at several units over the course of his imprisonment

and was finally transferred to the Michael Unit in 1987.           When

Enriquez arrived in prison, Texas law required the races to be
segregated.     Racial discrimination was practiced then by prison
officials and it continues to be practiced today.           Enriquez alleged

this on-going tort in his initial and amended complaints.            The

courts below and this court are mandated by Rule 87(b), supra,

to accept Enriquez's claims as pleaded in venue determination
proceedings.        The panel did not do so.    It did not so much as
mention Enriquez's claims or allegations in the venue section of

its opinion.        This rendered its decision on venue fundamentally
flawed.   Rehearing is necessary to comply with Rule 87(b), supra.
               B.     Panel Failed To Follow Savings Clause
               of §15.019(a), Tex.Civ.Prac.       & Rem. Code

     The Savings Clause of §15.019(a), supra, precludes its

application to lawsuits which accrued prior to its effective date
of September 1995.        The panel did not so much as mention the

subject savings clause in the venue section of its opinion.             It
did not address why an inmate who arrived on the Michael Unit in

1987 would claim racial discrimination and segregation only after

the effective date of §15.019(a).          More likely,   as the pleadings
                                                                          14



establish,    he alleged racial discrimination since he arrived

on the Michael Unit in 1987.         The failure of the panel to apply

the Saving Clause of §15.019(a) requires a rehearing to apply

§15.019 correctly.

              C.   Panel   Failed   To   Reverse Venue   Transfer
            After All Possible Supporting Evidence Stricken

        Enriquez filed suit in Travis County because "some of the

Defendants are located in that county."           Memorandum Opinion,      3.

Defendants moved to transfer venue to Anderson County,              alleging

that "[d]uring the time of the events giving rise to his lawsuit,

Appellant was an inmate housed in the Michael Unit            ...   in

Tennessee Colony,     Texas."    Appellees'    Brief,    2.

        Appellant's pleadings are both sworn as required by law.

His claims of racial segregaton and racial discrimination from

the 1970s to present were restated under oath at the hearing

of Defendants'     motion to dismiss held in Anderson County.            Thus,

there is probative evidence in the record venue was proper in

Travis County irrespective of Enriquez's confinement in Anderson

County when suit was filed in Travis County.

        The unsworn statement    "during the time of the events giving

rise to his lawsuit,   Appellant was an inmate housed in the Michael

Unit" made by counsel for Defendants in her motion to transfer

venue is not evidence.        The motion was not supported by affidavit

or by prison records.        The Reporter's Record of the February 6,

2013,   hearing on Defendants'      motion to transfer venue was stricken

from the record.     Thus,    there is no probative evidence of any kind

that venue is proper in Anderson County.
                                                                    15



     The controlling law in the fact situation before the Court

is found in Wichita City v. Hart, 917 S.W.2d 779 (Tex. 1996),

wherein the Texas Supreme Court held that if there is no evidence

that venue was proper,       the appellate court must reverse the trial

court's erroneous venue ruling and remand the case for a new trial

without conducting the usual harm analysis.         Id. at 781.

     It is necessary for the panel to rehear this case on the

dispositive fact that the evidence that might have supported a

venue transfer was striken and to apply the Wichita City holding.


                                 III.   INDIGENCY


1.   The   Record   Facts:

     Enriqeuz filed an affidavit of inability to pay costs on

February 7, 2012, wherein, inter alia, he attested he did not

own property.       The affidavit was accompanied by a certified
copy of his trust account showing a one-cent balance.         (CR 14).
The trial court found Enriquez was not "indigent based upon the

funds in his inmate trust account on February 7, 2012."

Memorandum Opinion,      at 4.

     Enriquez argued that the trial court was bound by law to

find him indigent, citing Donaldson v. TDCJ-CID,        355 S.W.3d 722,

725 (Tex.App. —       Tyler 2011), wherein the court noted that "[t]he
law is well settled that a prisoner of a Texas Department of

Criminal Justice facility who has no money or property is

considered indigent".

     The panel overruled Enriquez's argument "[b]ecause Enriquez

had funds in his inmate trust account during the six months
                                                                                              16



preceding his suit,               and he had a positive balance in his account

at    the   time    he    filed    suit,   the   trial   court   did   not    abuse    its

discretion in finding him not indigent." Memorandum Opinion,                                  at 4.

_2.     Reasons Why Rehearing
        Is Mandated By Law:

        Enriquez owned no property andhad a one-cent balance in the

trust account.             A rehearing is necessary because the panel did

not have discretion to affirm a judgment finding Enriquez not

indigent in light of controlling law from the Texas Supreme Court

in Alford v. Lowry, 507S.W.353 (Tex.                     1980), that a prisoner in

the Texas Department of Criminal Justice who has no money or

property is considered indigent".

        Instead of accepting the record facts and following the

controlling law,               the panel misapplied the law for determining

indigency when an affidavit of inability is contested which is that

"[a]s a general rule,               the test for determining an inmate's

entitlement to proceed in forma pauperis is whether the record as

a whole shows by a preponderance of the evidence that the inmate

would be unable to pay the costs of his suit if he really wanted

to and made a good faith effort to do so."                       Higgins v.          Randall

County Sheriff's Office,               257 S.W.3d 684,      686 (Tex.         2008).

        Here,      the general rule does not apply because the Appellant's

affidavit       was      not   contested   and   because   the   trial       court    found


Appellant not "indigent based upon the funds in his inmate trust

account on February 7, 2012.                Memorandum Opinion,          at 4.

       There is no difference between a one-cent balance and a zero

balance for the purpose of determining indigency under Alford.
The case needs to be reheard to apply Alford, supra.
                                                                                            17




                                 IV.    WITHDRAWAL          ORDER


1.      The   Record    Facts:


        Enriquez filed an affidavit of inability to pay costs on

February 7, 2012, accompanied by a certified copy of his inmate

trust account statement showing account information from August

2011 through January 2012.                  The statement shows a total of

$570.00 in deposits in the preceding six months and a balance of

one-cent in the trust fund.                 [Twenty percent of $570.00 is $114.00.]

        Section 14.006(b), supra, requires an inmate to pay the

lesser of      "20 percent of the preceding six months'                        deposits to

the inmate trust        account;       or    ...    the Total       amount    of court   fees

and    costs".


        Section 14.006(f),         supra,         requires the inmate to filea

certified copy of the inmate's trust account statement which

must    reflect   the   balance of          the    account    at    the   time the    claim

is filed and activities in the account during the six months

preceding the date on which the claim is filed.                              The court may

request the information required under this subsection.

        The   withdrawal   order       directed       the    TDCJ    to   calculate   the

lesser of the two amounts set by statute,                          but ordered the

calculations made from the 6-month period preceding the date the

dismissal order rather than from the 5-month period preceding the

date the lawsuit was filed or from the information provided by

the inmate under $14.006(f), supra.

        Enriquez argued on appeal that the trial court ordered the

calculations made on the wrong 6-month period.                            Brief for Appellant

at    17.
                                                                             18




     The panel did not address or decide this issue, mistakenly

advancing it as a reason why Enriquez claimed the trial court

abused its discretion in deciding indigency.

2.   Reasons Why Rehearing
     Is Mandated By Law:

     Rehearing of the withdrawal order issues is mandated by law

because the panel failed to follow controlling law from the Texas

Supreme Court in Bonds v. Texas Department of Criminal Justice,

953 S.W.2d 233 (Tex.          1997),    wherein the Court held that      "Section

14.006(b) requires an inmate to pay only the lesser of two sums.

It gives the court no discretion to require payment of the

greater sum."      Id.   at    234.

     The panel by affirming the lower court's use of the wrong

time period to calculate the lesser of the two sums allowed by

§14.006(b) permits and may require that a greater sum than
allowed by statute be charged to Enriquez.

     This issue needs to be reheard to decide this issue on the

controlling law set forth in Bonds,               supra.

                                  V.     CHAPTER   14


1.   Record     Facts:

     Juan Enriquez did not file an affidavit of inability to pay

in Anderson County.           He could not because he had the money to do

so and so informed the court at the hearing of Defendants'

motion   to   dismiss.

2.   Reasons Why Rehearing
     Is Mandated By Law:

     The trial court and this Court have subjected this case to

Chapter 14,     Tex.Civ.Prac.         & Rem.   Code,   determinants.   However,
                                                                    19




the jurisdictional base for such review was never filed, in this

case,     A new charge or new cost amount started when the case

arrived in Anderson County.       Enriquez had the option then to

pay the fees or to file an affidavit of inability to pay.          He

did not file such an affidavit and on the record offered to pay.

The trial court did not have authority to proceed under Chapter

14 when an affidavit of inability to pay was not filed in the

Anderson County proceedings.

        This case must be reheard   to allow this issue to be briefed

and developed as it appears also to challenge the jurisdiction

of the Court to hear and decide this appeal.

        WHEREFORE,   PREMISES CONSIDERED,    Appellant prays that his

motion be in all things granted and the issues set forth herein

reheard.


                                    Respectfully submitted,


                                      '^^Jt^t-X
                                    Jyan    Enri<
                                      7122
                                    TDCJ-Michael
                                    2664 FM 2054
                                    Tennessee Colony,   TX 75886

                          Certificate of    Service

        I, Juan Enriquez, certify that a correct copy of the above
motion was served by placing same in the United States mail,postage
prepaid, on July 21,2015, addressed to Briana Webb,        Assistant
Attorney General, P. 0. Box 12548, Capitol Station,        Austin, TX 78711,



                                    J/uaYi Enriquez

                       Mailbox Filing Verification

     I, Juan Enriquez, declare under penalty of perjury, that the
foregoing motion was filed on July 21, 2015, by placing same in
                                                                20




the Institutional Mail System, first class mail, postage prepaid,
addressed to Clerk,   Twelfth Court of Appeals,   1517 West Front
Street, Suite 354, Tyler, TX 75702.    Executed on July 21, 2015.




                                   an Enriquez
                                    NO. 12-14-00016-CV


                            IN THE COURT OF APPEALS

                 TWELFTH COURT OF APPEALS DISTRICT

                                      TYLER, TEXAS


 JUAN ENRIQUEZ,                                  §      APPEAL FROM THE 3RD
APPELLANT


 V.

                                                        JUDICIAL DISTRICT COURT
RICK THALER, BRAD LIVINGSTON,
OLIVER BELL, TODD FOXWORTH,
JOHN RUPERT, and REYNALDO
CASTRO,                                          §      ANDERSON COUNTY, TEXAS
APPELLEES
                                   MEMORANDUM OPINION

          Juan Enriquez appeals from the trial court's dismissal of his suit pursuant to Chapter
Fourteen of the Texas Civil Practice and Remedies Code. He raises four issues on appeal. We
affirm.



                                          Background

          Enriquez, an inmate in the Texas Department of Criminal Justice-Institutional Division
(TDCJ), filed suit in Travis County in February 2012, against Rick Thaler, Director, TDCJ; Brad
Livingston, Executive Director, TDCJ; and Oliver Bell, Chair, TDCJ, each individually and in
his official capacity.   Upon motion of the defendants, the case was transferred to Anderson
County by order dated February 6, 2013. On May 8, 2013, Enriquez filed his First Amended
Petition alleging violations of his right to equal protection pursuant to United States Code Title
42, Section 1983 and racial discrimination in violation of the federal and state constitutions. He
sought declaratory and equitable relief as well as actual, exemplary, and nominal damages. By
supplemental petition, Enriquez added as defendants Todd Foxworth, John Rupert, and Reynaldo
Castro, all former wardens of the Michael Unit, and "John Doe," a name he used to refer to all
correctional officers who carried out the orders of their superiors. Defendants moved to dismiss
 the case pursuant to Texas Civil Practice and Remedies Code Chapter Fourteen. The trial court
 determined thai Enriquez's claims are frivolous or malicious, thai he failed to file on affidavit
 relating to previous filings that complied with the statute, and that he failed to exhaust his
 administrative remedies. Therefore, the court dismissed the suit without prejudice. The court
found that Enriquez was not indigent and ordered him to pay court fees and costs charged to him
in this cause in accordance with Chapter Fourteen.


                                           Jurisdiction

        After this cause was submitted to this court for consideration, Enriquez filed a plea to the
jurisdiction. He asserts that the district clerk presented the cost bill after he filed his notice of
appeal. Therefore, he did not have the opportunity to alert the trial court to the variance between
the amount allowed by statute to be withdrawn to pay costs and what was withdrawn. He
contends his notice of appeal was premature because the trial court has not rendered judgment on
the issue of the accuracy of the withdrawal notification. Therefore, he argues, he has not been
given the required due process.
        Based on Enriquez's inmate trust account statement, the court found Enriquez is not
indigent. In compliance with Texas Civil Practice and Remedies Code Section 14.006, the trial
court ordered that Enriquez shall pay an amount equal to the lesser of twenty percent of the
preceding six months' deposits to his trust account or the total amount of court fees and costs.
The court further ordered that, in each month following the month in which payment is made as
above, he shall pay an amount equal to the lesser often percent of that month's deposits to the
trust account or the total amount of court fees and costs that remain unpaid. Finally, the court
ordered that payments shall continue until the total amount of court fees and costs are paid or
until the inmate is released from confinement. See Tex. Civ. Prac. & Rem. Code Ann. § 14.006
(West 2002). Enriquez acknowledges that he received notice of the costs assessed against him
and had the opportunity to challenge that assessment in his motion to vacatejudgment.
       The district clerk's bill of costs was not produced until four months after the dismissal
order was signed. That bill reflects actual amounts charged, not amounts withdrawn from the
inmate's account. Enriquez appears to be complaining that amounts withdrawn from his account
were greater than ordered and that he has not had the opportunity to bring this to the attention of
the trial court, a denial of due process. Thus, he argues, this appeal should be abated and the
 cause remanded to the trial court for consideration of the "prison withdrawal notification." We
 disagree.

         The Texas Government Code authorizes the Texas Department of Criminal Justice to
 make withdrawals from an inmate's account to pay for all orders for court fees and costs. Tex.
 Gov't Code Ann. § 501.014(e)(4) (West 2012). Such a withdrawal notification is akin to a
 garnishment action and can be contested by the inmate separately from the judgment ordering
 payment. Maldonado v. State, 360 S.W.3d 10, 13 (Tex. App.-Amarillo 2010, no pet.). The
 cause before us does not involve a Section 501.014 withdrawal notification. Here, all pending
 parties and claims were finally disposed of and the December 11, 2013 order of dismissal is
 therefore final. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). We overrule
 Enriquez's plea to the jurisdiction.


                                                  Venue

        In his first issue, Enriquez contends the Travis County trial court erred in transferring the
case to Anderson County because he did not get the requisite forty-five day notice prior to the
hearing on the motion to transfer.      Further, he asserts, the trial court did not allow him to
undertake the discovery contemplated by Texas Rule of Civil Procedure 88. He argues that, due
to the shortened notice time, he lost the right to challenge the sufficiency of the evidence on
which Defendants rely for their venue motion.
        Enriquez argues that venue rulings are exempt from the harmless error rule and,
therefore, if the trial court makes an erroneous venue ruling, the case must be reversed. In
support of this argument, he cites to Wilson v. Texas Parks & Wildlife Department, 886 S.W.2d
259, 261 (Tex. 1994). Wilson stands for the proposition that, if a plaintiff files suit in a county
of proper venue, it is reversible error to transfer venue even if the county of transfer would have
been proper if originally chosen by the plaintiff. Id. Here, Enriquez initially filed his lawsuit in
Travis County because some of the defendants are located in that county. However, this case is
subject to a mandatory venue provision requiring an action that accrued while the plaintiff was
housed in a facility operated by or undercontract with the Texas Department of Criminal Justice
to be brought in the county in which the facility is located. Tex. Civ. Prac. & Rem. Code Ann.
§ 15.019(a) (West 2002). Enriquez was housed in a facility located in Anderson County and
fails to explain what discovery was necessary on the venue issue. Accordingly, even if Enriquez


                                                                                     \
 did not receive forty-five days' notice, the trial court did not err in granting Defendants' motion
 to transfer the case to Anderson County. Id. We overrule Enriquez's first issue.


                                                Indigency

        In his second issue, Enriquez asserts that the trial court abused its discretion in
 determining that he is not indigent. He argues that the trial court erroneously based its decision
 on a six month deposit period at the time of the payment order rather than on the six month
 deposit period preceding the filing of the lawsuit. He does not explain the basis for that
 statement.


        Enriquez filed his original petition on February 13, 2012. He filed an affidavit of
 inability to pay costs on February 7, 2012, accompanied by a certified copy of his inmate trust
account statement showing account information for August 2011 through January 2012. The
statement shows a total of $570.00 in deposits in the preceding six months and an average
balance of$199.03 over the six months. In its order of dismissal, the court found Enriquez not
"indigent based upon the funds in his inmate trust account on February 7, 2012."
        As a general rule, the test for determining an inmate's entitlement to proceed in forma
pauperis is whether the record as a whole shows by a preponderance of the evidence that the
inmate would be unable to pay the costs of his suit if he really wanted to and made a good faith
effort to do so. Higgins v. Randall Cnty. Sheriffs Office, 257 S.W.3d 684, 686 (Tex. 2008).
An inmate who has funds in his inmate trust account at the time he files his affidavit ofindigency
is not considered indigent. See Donaldson v. Tex. Dep't of Criminal Justice-Corr. Insts. Div.,
355 S.W.3d 722, 725 (Tex. App.-Tyler 2011, pet. denied).
       Here, the February 7, 2012 trust account statement shows that Enriquez had deposits of
$570.00 in the six months before filing suit. The six month average balance was $199.03, and
the average deposit during the six month period was $95.00. Additionally, Enriquez filed a
second trust account statement showing balance information for November 2011 through April
2012. The highest balance in February 2012, the month he filed suit, was $904.16 and total
deposits in that month were $995.00. Because Enriquez had funds in his inmate trust account
during the six months preceding his suit, and he had a positive balance in his account at the time
he filed suit, the trial court did not abuse its discretion in finding him not indigent. See id.;
 McClain v. Terry, 320 S.W.3d 394, 398 (Tex. App.-El Paso 2010, no pet.). We overrule
 Enriquez's second issue.

                                        •




                                            Chapter Fourteen

        In his third issue, Enriquez contends that the statutory requirement that inmates must file
 a grievance and exhaust administrative remedies before filing suit does not apply to his claim of
 statutory and systemic racial segregation and discrimination. In his fourth issue, Enriquez
contends that he filed an affidavit relating to previous filings in compliance with Section 14.004
and therefore the trial court abused its discretion in finding that he did not.
Applicable Law

        We review the trial court's dismissal of an in forma pauperis suit under an abuse of
discretion standard. Williams v. Tex. Dep't of Criminal Justice-Institutional Div., 176 S.W.3d
590, 593 (Tex. App.-Tyler 2005, pet. denied).         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.). We will affirm a
dismissal if it was proper under any legal theory. See Johnson v. Lynaugh, 796 S.W.2d 705,
706-07 (Tex. 1990) (per curiam).
       Chapter Fourteen of the Texas Civil Practice and Remedies Code controls suits brought
by an inmate in which the inmate filed an affidavit or unsworn declaration of inability to pay
costs. Tex. Civ. Prac. & Rem. Code Ann. § 14.002(a) (West Supp. 2014). Section 14.003
authorizes a trial court to dismiss an inmate's claim, filed informa pauperis, either before or
after service of process occurs, if it finds the claim to be frivolous. Tex. Civ. Prac. & Rem.
Code Ann. § 14.003(a)(2) (West 2002).           Additionally, the inmate must comply with the
procedural requirements set forth in Chapter Fourteen. Tex. Civ. Prac. & Rem. Code Ann.
§§ 14.002(a), 14.004, 14.005 (West 2002 & Supp. 2014). Failure to fulfill those procedural
requirements will result in the dismissal of an inmate's suit. Brewer v. Simental, 268 S.W.3d
763, 767 (Tex. App.-Waco 2008, no pet.).
Administrative Remedies

       Chapter Fourteen requires, in part, that an inmate proceeding in forma pauperis properly
exhaust his administrative remedies by completing the grievance process. Tex. Civ. Prac. &
Rem. Code Ann. § 14.005. The Texas Department of Criminal Justice's inmate grievance
 procedure is a two-step process outlined in its Offender Orientation Handbook. Tex. Dep't of
 Crim.       Justice,    Offender      Orientation      Handbook,      74-76       (Jan.         2015),
 http://www.tdcj.state.tx.us/documents/Offender Orientation Handbook English.pdf. The inmate
 is to file the Step 1 grievance form within fifteen days of the alleged incident. The inmate may
 appeal the Step 1 response by filing a Step 2 grievance within fifteen days of the date the
 response is returned to the inmate. Id. at 74. The inmate may file a grievance only on issues that
personally apply to him, with the exception of sexual abuse and related issues.            Id.     The
Handbook lists grievable issues and nongrievable issues. The interpretation or application of
TDCJ policies, rules, regulations, and procedures is grievable.       Id.   State or federal court
decisions, laws, and regulations are not grievable. Id. at 75. Additionally, the federal Prison
Litigation Reform Act specifically provides that "[n]o action shall be brought with respect to
prison conditions under section 1983 of this title, or any other Federal law, by a prisoner
confined in any jail, prison, or other correctional facility until such administrative remedies as
are available are exhausted." 42 U.S.C. § 1997e(a) (2013); Booth v. Churner, 532 U.S. 731,
739, 121 S. Ct. 1819, 1824, 149 L. Ed. 2d 958 (2001).
         An inmate who files a clam that is subject to the grievance system established under
Texas Government Code Section 501.008 shall file with the court an affidavit or unsworn
declaration stating the date the grievance was filed and the date the written decision was received
by the inmate, and a copy of the written decision from the grievance system. TEX. Civ. Prac. &
Rem. Code Ann. § 14.005(a). A court shall dismiss a claim if the inmate fails to file the claim
before the thirty-first day after the date the inmate receives the written decision from the
grievance system. Id. § 14.005(b). An inmate may not file a claim in state court regarding
operative facts for which the grievance system provides the exclusive administrative remedy
until he receives a written decision issued by the highest authority provided for in the grievance
system or, if he has not received a written decision, the 180th day after the date the grievance is
filed. Tex. Gov't Code Ann. § 501.008(d) (West 2012). A claim is considered to have no
arguable basis in law, and is therefore frivolous, if a prisoner has failed to exhaust his
administrative remedies. Retzlaff v. Tex. Dep't of Crim. Justice, 94 S.W.3d 650, 653 (Tex.
App.-Houston [14th Dist] 2002, pet. denied).
         Enriquez asserts that his causes of action are not subject to the grievance process. We
disagree. Enriquez brought claims under United States Code Title 42, Section 1983 and the
 United States and Texas Constitutions. The Prison Litigation Reform Act specifically states that
 claims regarding prison conditions that are brought under federal law are subject to
 administrative remedies. 42 U.S.C. § 1997e(a); Booth, 532 U.S. at 739, 121 S. Ct. at 1824.
         In his petition, Enriquez globally complains that the defendants violated the Texas
 Constitution by discriminatory practices in the areas of educational programs, rehabilitative
 programs, housing and job assignments, dental and medical treatment, disciplinary
 administration, hiring practices, and policies regarding obtaining money and property from
 inmates. The TDCJ Offender Orientation Handbook states that the interpretation or application
 of TDCJ policies, rules, regulations, and procedures is grievable. Tex. Dep't of Crim. Justice,
 Offender Orientation Handbook at 74. Accordingly, Enriquez was required to complete the two-
 step grievance process. However, with the exception of certain issues not applicable here, he is
 allowed to file grievances only on issues that personally apply to him. Id.
        Enriquez asserts that he filed a grievance raising the claims in this suit. The record does
 not include a copy of the grievance. Therefore, Enriquez has not shown the details or date of the
alleged incident, or whether he filed the grievance within fifteen days of the incident. The record
includes an advisory to the trial court, filed July 25, 2013, noting the grievance number, that Step
1 was completed June 11, 2013, long after this suit was filed, and setting out the response
verbatim. The response refers to "racial mixing" in housing assignments. Assuming this
grievance timely raised a claim in this suit, Enriquez did not file a Step 2 grievance appealing the
Step 1 response. By not filing a Step 2 grievance, Enriquez failed to exhaust his administrative
remedies for his allegation that Defendants discriminate in housing assignments.            Crain v.
Prasifka, 97 S.W.3d 867, 870 (Tex. App.-Corpus Christi 2003, pet. denied) (op. on reh'g).
Because no grievances were filed for the remainder of his claims, Enriquez failed to exhaust his
administrative remedies for those claims. Tex. Civ. Prac. & Rem. Code Ann. § 14.005;
Leachman v. Dretke, 261 S.W.3d 297, 309 (Tex. App.-Fort Worth 2008, no pet.) (op. on reh'g).
Accordingly, Enriquez failed to comply with Section 14.005's exhaustion of remedies
requirement, a proper basis for the trial court's dismissal order. See Brewer, 268 S.W.3d at 767.
We overrule Enriquez's third issue.
Previous Claims

       In determining whether a claim is frivolous or malicious, a trial court may consider
                                                                                                        f
whether the claim is substantially similar to a previous claim filed by the inmate that arises out of
 the same operative facts. Tex. Civ. Prac. & Rem. Code Ann. § 14.003(b)(4) (West 2002).
 Accordingly, an inmate who files an affidavit or unsworn declaration of inability to pay costs
 must file a separate affidavit or declaration setting outthe following information:


                 (1) Identifying each action, other than an action under the Family Code, previously
                     brought by the person and in which the person was not represented by an attorney,
                     without regard to whether the person was an inmate at the time the action was
                     brought; and
                (2) Describing each suit that was previously brought by:
                    (A) stating the operative facts for which reliefwas sought;
                    (B) listing the case name, cause number, and the court in which the action was
                         brought;
                    (C) identifying each party named in the action; and
                    (D) stating the result of the action, including whether the actionor a claimthat was a
                         basis for the action was dismissed as frivolous or malicious.


 Tex. Civ. Prac & Rem. Code Ann. § 14.004(a).
        Further, if the affidavit or unsworn declaration filed under this section states that a
 previous action or claim was dismissed as frivolous or malicious, the affidavit or unsworn
 declaration must state the date of the final order affirming the dismissal. Id. § 14.004(b).
 Substantial compliance with the affidavit of previous filings requirement has been held to be
sufficient. Gowan v. Tex. Dep't of Crim. Justice, 99 S.W.3d 319, 322 (Tex. App.-Texarkana
2003, no pet.). However, the inmate must always include a sufficient description of the
operative facts of prior suits, because that description is necessary for a trial court to make an
evaluation as to whether the present suit is substantially similar to a prior suit. See Bell v. Tex.
Dep't of Crim. Justice-Institutional Div., 962 S.W.2d 156, 158 (Tex. App.-Houston [14th
Dist.] 1998, pet. denied). The inmate's failure to sufficiently describe the operative facts of his
prior suits entitles the trial court to presume that the instant suit is substantially similar to one
previously filed by the inmate, and therefore, frivolous and subject to dismissal. See id.
        Enriquez failed to fully comply with the requirement that inmates proceeding in forma
pauperis must file an affidavit or declaration setting out certain information so the trial court can        4




determine ifthe claim is substantially similar to a previous claim filed by the inmate arising out
of the same operative facts. Although Enriquez filed his affidavit of previous filings listing
eleven prior suits, it lacks some pertinent details. One lawsuit, which does not name the court
                                                                                                             I
where the suit was filed, and does not name all of the defendants, complains that the defendants
"operated a racially segregated and racially discriminatory prison system." Two others, one of
which does not identify all of the defendants, complain of poor dental treatment. Therefore, the
trial court could have found this suit frivolous because Enriquez's disclosure of the operative
facts of his prior suits was insufficient to overcome the presumption that the instant suit is
substantially similar to those he previously filed. See Bell, 962 SW.2d at 158. Accordingly,
because Enriquez did not comply with the statutory requirement that he provide an adequate
affidavit of prior suits filed, the trial court did not abuse its discretion in dismissing Enriquez's
suit. See Brewer, 268 SW.3d at 767. We overrule Enriquez's fourth issue.


                                                   Conclusion

          The trial court's order of dismissal is final, and this court has jurisdiction over this
appeal.     Because this case is subject to a mandatory venue provision, venue is proper in
Anderson County. The trial court did not err when it determined that Enriquez is not indigent,
did not exhaust administrative remedies, and did not comply with the requirement that he
adequately identify and describe previously filed suits. Accordingly, we affirm the trial court's
order of dismissal. All pending motions are overruled as moot.


                                                                 Greg Neeley
                                                                      Justice


Opinion delivered July 8, 2015.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                                   (PUBLISH)
