                           NUMBER 13-18-00528-CV

                             COURT OF APPEALS

                    THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG


MICHAEL MCCANN,                                                               Appellant,

                                            v.

JESUS DE HOYOS, ET AL.,                                                       Appellees.


                    On appeal from the 156th District Court
                           of Bee County, Texas.


                           MEMORANDUM OPINION

         Before Justices Benavides, Hinojosa, and Perkes
            Memorandum Opinion by Justice Hinojosa

       This is an inmate litigation case brought under Chapter 14 of the Texas Civil

Practices and Remedies Code. By two issues, appellant Michael McCann asserts: (1)

the trial court erred when it dismissed his chapter 14 civil lawsuit and (2) it was error to

allow an associate judge to preside over his case. We affirm.
                                       I. BACKGROUND

       McCann is an inmate at the Texas Department of Criminal Justice (TDCJ)

McConnell Unit in Beeville, Texas.        He claims that on November 27, 2017, TDCJ

employee Jesus De Hoyos unlawfully seized some of his legal documents while he was

exiting the unit’s garment factory. McCann claims that De Hoyos read his personal legal

papers and refused to return them. McCann also complains that TDCJ employees Corey

Furr and C. Perales assisted De Hoyos by failing to return his paperwork. According to

McCann, the employees retaliated against him by filing a disciplinary case against him

after he complained about De Hoyos to De Hoyos’s supervisor.

       After exhausting his administrative remedies, McCann filed a lawsuit in district

court against De Hoyos, Furr, and Perales “in their official and personal capacities” on

April 30, 2018.     McCann’s lawsuit alleged breach of contract, theft, conversion, and

retaliation causes of action. He also asserted that defendants’ actions violated the Equal

Protection Clause. In his petition, McCann objected “to the referral of this case to any

judge not elected to the district filed in.” He sought recovery in the form of damages,

declaratory relief, injunctive relief, and court costs.

       The Fourth Administrative Judicial Region assigned Judge Joel Johnson to preside

over this case on May 3, 2018. McCann then filed a formal “Objection to Assigned

Judge” under § 74.053 of the Texas Government Code.              Although this motion’s

certificate of service was dated May 11, 2018, it was not postmarked until May 31, 2018.

       The trial court dismissed McCann’s lawsuit without prejudice “as frivolous and for

failure to comply with Chapter 14’s” procedural requirements. McCann now appeals.


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                             II. CHAPTER 14 INMATE LITIGATION

       In McCann’s first issue, he contends that the trial court abused its discretion by

improperly dismissing his lawsuit.

A.     Standard of Review and Applicable Law

       We generally review a trial court’s dismissal of a claim pursuant to Chapter 14 of

the Texas Civil Practice and Remedies code under an abuse of discretion standard.

Wanzer v. Garcia, 299 S.W.3d 821, 827 (Tex. App.—San Antonio 2009, pet. denied); see

also Zavala v. Salles, No. 13-18-00104-CV, 2018 WL 3386368, at *1 (Tex. App.—Corpus

Christi–Edinburg July 12, 2018, no pet.) (mem. op.). The trial court abuses its discretion

if it acts arbitrarily, unreasonably, or without reference to any guiding rules and principles.

Downer v. Aquamarine Operators, Inc., 701 S.W.3d 238, 241–42 (Tex. 1985). “The

mere fact that a trial judge may decide a matter within his discretionary authority in a

different manner than an appellate judge in a similar circumstance does not demonstrate

that an abuse of discretion has occurred.” Id. at 242.

       A trial court may dismiss an inmate’s claim as frivolous or malicious under Chapter

14 based on the following factors: the claim’s ultimate chance of success; whether the

claim has an arguable basis in law or fact; whether it is clear that the party cannot prove

facts in support of the claim; or whether the claim is substantially similar to a previous

claim filed by the petitioner because it arises from the same operative facts. See TEX.

CIV. PRAC. & REM CODE ANN. § 14.003(a)(2), (b)(2); see also Zavala v. Bustos, No. 13-17-

00597-CV, 2018 WL 3764568, at *2 (Tex. App.—Corpus Christi–Edinburg Aug. 9, 2018,

pet. denied) (mem. op.). “A claim has no arguable basis in law if it relies upon an


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indisputably meritless legal theory.” Fernandez v. T.D.C.J., 341 S.W.3d 6, 13 (Tex.

App.—Waco 2010, no pet.). Dismissal with prejudice is improper if the dismissal is

based on procedural defects that the inmate can correct. See id. However, if the claim

has no arguable basis in law, then dismissal with prejudice is proper. Id.

B.     Analysis

       Chapter 14 requires that the inmate file certain documents along with their petition.

For example, the statute requires that inmates file a statement of their trust account. See

TEX. CIV. PRAC. & REM. CODE ANN. § 14.006(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 activity in the account during the

six months preceding the date on which the claim is filed.”). McCann failed to file a

statement of his trust account with his original petition. See id.

       Chapter 14 also requires that the petitioner file an affidavit identifying each action

previously brought by the inmate as a pro se litigant. Id. § 14.004. One of the goals of

§ 14.004 is to reduce the problem of “constant, often duplicative, inmate litigation in this

state.” Bell v. Tex. Dep’t. of Criminal Justice-Inst. Div., 962 S.W.2d 156, 158 (Tex.

App.—Houston [14th Dist.] 1998, pet. denied). The statute aims to reduce this litigation

“by requiring the inmate to notify the trial court of previous litigation and the outcome.” Id.

       The affidavit must describe each action by:

       (A)    stating the operative facts for which relief was 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

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        (D)     stating the result of the action, including whether the action or a claim
                that was a basis for the action was dismissed as frivolous or
                malicious under Section 13.001 or Section 14.003 or otherwise.

Id. (citing TEX. CIV. PRAC. & REM. CODE ANN. § 14.004).

        While McCann did file a “Declaration of Previously Filed Lawsuits,” it was deficient.

The declaration did not state the operative facts for which he sought relief in each previous

cause of action or state the results of each action. See TEX. CIV. PRAC. & REM. CODE

ANN. § 14.004(a)(2)(A), (D).           “[W]hen an inmate does not comply with the affidavit

requirements of section 14.004, the trial court is entitled to assume the suit is substantially

similar to one previously filed by the inmate, and [is] therefore, frivolous.” Bell, 962

S.W.2d at 158.

        In light of the foregoing failures to comply with Chapter 14, the trial court was within

its discretion to dismiss McCann’s petition without prejudice. Wanzer, 299 S.W.3d at

827. We overrule McCann’s first issue. 1

                              III. OBJECTION TO AN ASSOCIATE JUDGE

        In his second issue, McCann contends that the trial court lacked subject matter

jurisdiction to render an order to dismiss.               Specifically, McCann argues that Judge

Johnson should not have been able to rule on McCann’s case because McCann properly

objected to the assignment of his case to an associate judge.




         1 Because the trial court’s dismissal of McCann’s lawsuit for failure to strictly comply with Chapter

14 is dispositive of this issue, we need not address McCann’s additional claims regarding the dismissal of
his alleged breach of contract, theft, conversion, retaliation, and constitutional claims. See TEX. R. APP. P.
44.1 (“The court of appeals must hand down a written opinion that is as brief as practicable but that
addresses every issue raised and necessary to final disposition of the appeal.”).
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A.       Standard of Review and Applicable Law

         Whether a trial court has jurisdiction is a question of law that we review de novo.

Harris County v. Annab, 574 S.W.3d 609, 612 (Tex. 2018). Assigned judges are active,

retired or senior judges. See TEX. GOV’T CODE ANN. § 74.054. An assigned judge may

not hear a case if a party submits a timely objection no later than seven days after the

party receives actual notice of the assignment or before the first hearing of the trial,

whichever is sooner. See id. § 74.053. A timely objection to a judge “assigned” under

Chapter 74 of the Texas Government Code is automatically effective and any subsequent

order rendered by the assigned judge is void. In re Canales, 52 S.W.3d 698, 701 (Tex.

2001).

B.       Analysis

         McCann claims that he preemptively objected to the judge in his original petition.

His petition asserted his objection “to the referral of this case to any judge not elected to

the district filed in.” This objection, however, was improper. See In re Carnera, 05-16-

00055-CV, 2016 WL 323654, at *2 (Tex. App.—Dallas Jan. 27, 2016, no pet.). “A party

does not possess the right to object to the assignment of a visiting judge before the

assignment takes place.” Id. (citing Discovery Operating, Inc. v. Baskin, 855 S.W.2d

884, 887 (Tex. App.—El Paso 1993, no writ)). “Section 74.053 clearly contemplates that

assigned judge objections will be filed after the assignment of a judge to whom a party

objects, not that parties can file pro forma blanket objections to assigned judges at the

time they file their initial pleadings.” Id. Here, McCann filed his original petition and

objection on April 30, 2018, but Judge Johnson was not appointed until May 3, 2018.


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Accordingly, the objection in his original petition did not preserve this issue.

       McCann later wrote a formal “Objection to Assigned Judge.” The certificate of

service on this objection reflects the date of May 11, 2018, but the motion was not formally

postmarked until May 31, 2018. Rule 5 of the Texas Rules of Civil Procedure provides

that “[i]f any document is sent to the proper clerk by first-class United States mail in an

envelope or wrapper properly addressed and stamped and is deposited in the mail on or

before the last day for filing same, the same, if received by the clerk not more than ten

days tardily, shall be filed by the clerk and be deemed filed in time.” Warner v. Glass,

135 S.W.3d 681, 684 (Tex. 2004).

       McCann claims that “any deficiency [in time] is on [the] McConnell Unit[’]s

mailroom, not McCann.” Case law supports this position. The Texas Supreme Court

has held:

       [N]either the general rule protecting litigants from clerical errors in the
       courthouse nor Rule 5’s mailbox rule addresses the position of the party
       who, because he is incarcerated and proceeding pro se, does not have
       direct access to either the clerk’s office or a United States mailbox for first-
       class mail. Just as we have declined to punish parties for failing to obtain
       a file stamp when they have timely placed the document in the constructive
       control of a court clerk, we decline to penalize a pro se litigant for failing to
       obtain a postmark or a file-stamp when the litigant has timely placed the
       document in the prison mail system, the only delivery system to which he or
       she has access. Therefore, a pro se inmate’s claim under section 14.004
       of the Inmate Litigation Act is deemed filed at the time the prison authorities
       duly receive the document to be mailed.

Id. at 684. However, assuming but not deciding that McCann placed his objection in the

prison mail system on May 11, 2018, as he claims, that date is eight days after the

appointment of Judge Johnson on May 3, 2018. Because the deadline for filing objection

to judges is seven days after the notice of appointment or the case’s first hearing,

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whichever is sooner, McCann missed the deadline. See TEX. GOV’T CODE ANN. § 74.053.

      We conclude that McCann did not submit a timely objection to the assignment of

Judge Johnson. See id. Judge Johnson thus had jurisdiction to hear the case. See

id. We overrule McCann’s second issue.

                                    IV. CONCLUSION

      We affirm the trial court’s judgment.

                                                          LETICIA HINOJOSA
                                                          Justice

Delivered and filed the
15th day of August, 2019.




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