                             NUMBER 13-07-00613-CV

                             COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


ROB L. NEWBY,                                                                 Appellant,

                                            v.

J.R. CUNNINGHAM, ET AL.,                                                      Appellees.


      On appeal from the 1-A District Court of Tyler County, Texas.



                        MEMORANDUM OPINION
             Before Justices Yañez, Rodriguez, and Benavides
               Memorandum Opinion by Justice Benavides

       Appellant, Rob L. Newby, an inmate housed in the Texas Department of Criminal

Justice-Institutional Division (“TDCJ”), sued various employees of the TDCJ. The trial court

dismissed his suit for failure to follow chapter 14 of the civil practice and remedies code.

See TEX . CIV. PRAC . & REM . CODE ANN . §§ 14.001-.014 (Vernon 2002). Newby appeals

asserting ten points of error. Because we find that Newby failed to comply with chapter 14,
we affirm, see id.; however, we modify the judgment to reflect that the dismissal is without

prejudice.

                         I. BACKGROUND FACTS AND PROCEDURE

       On July 3, 2007, Newby filed his original petition complaining of “the deprivation

[and] violation of rights, privileges, [and] immunities secured by state statutes and the

constitutions of the United States and the Great State of Texas.” Newby alleged that

various employees of the TDCJ engaged in a pattern of denying him access to the prison’s

law library and denying his requests for certain legal forms, books, and materials. Many

of the requests were rejected because Newby did not state his job assignment on the

request form. Newby argued in his petition that, even after making written requests for the

information, he was unable to obtain a job description from the appropriate TDCJ

employees. Newby additionally averred that the law library would deliver books and

documents to him that were not the items he had requested, while not delivering those he

had requested.     Newby filed three “step 1" grievances, followed by three “step 2"

grievances complaining of the employees’ conduct and the denial of access to the law

library, records, and materials. See generally TEX . GOV’T CODE ANN . § 501.008 (Vernon

2004) (Inmate Grievance System).

       After all six grievances were denied, Newby filed his original petition in the present

case. In addition to the petition, Newby filed a verified “Affidavit as to Inability to Pay

Costs.” Newby later amended his petition to add additional defendants and supplemented

his petition to include the required trust fund account statement.

       In the present action, the trial court ordered the attorney general to “file as amicus

curiae an advisory with the Court as to whether the inmate plaintiff has satisfied all of the

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statutory requirements.” The attorney general did so, and in the amicus, the attorney

general argued for dismissal asserting that Newby did not satisfy chapter 14 of the civil

practice and remedies code. See TEX . CIV. PRAC . & REM . CODE ANN . §§ 14.001-.014.

According to the attorney general, among other deficiencies, Newby failed to comply with

section 14.004 by failing to provide a complete affidavit relating to his previous filings. See

id. § 14.004 (Vernon 2002). Specifically, the attorney general asserted that the affidavit

was incomplete because Newby did not include the results of two of his prior lawsuits. See

id. § 14.004(a)(2)(D). The attorney general recommended dismissal for failure to comply

with chapter 14 and included a proposed order to that effect. Without stating a specific

ground under chapter 14, the trial court dismissed Newby’s case with prejudice for failing

to comply with chapter 14. Newby requested, and the trial judge provided, findings of fact

and conclusions of law. This appeal followed.

                                  II. STANDARD OF REVIEW

       When we review the dismissal of a lawsuit brought by an inmate who has filed an

affidavit or a declaration of inability to pay costs, we determine whether, in dismissing the

suit, the trial court abused its discretion. Jackson v. Tex. Dep’t of Criminal Justice-Inst.

Div., 28 S.W.3d 811, 813 (Tex. App.–Corpus Christi 2000, pet. denied). A trial court

abuses its discretion when it acts without reference to any guiding rules or principles. Id.

Therefore, the party complaining of the trial court’s action must demonstrate that such

action was arbitrary or unreasonable in light of all of the circumstances in the case. Id.

                                    III. APPLICABLE LAW

       In order to control inmate litigation, which may be frivolous, the legislature enacted



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chapter 14 of the civil practice and remedies code. See TEX . CIV. PRAC . & REM . CODE ANN .

§§ 14.001-.014; Jackson, 28 S.W.2d at 813. These provisions control the situation before

us because they cover inmate litigation “in which the inmate files an affidavit or unsworn

declaration of inability to pay costs,” unless the plaintiff brought his action under the family

code. Jackson, 28 S.W.3d at 813; see TEX . CIV. PRAC . & REM . CODE ANN . § 14.002. An

“unsworn declaration” of inability to pay costs “means a document executed in accordance

with Chapter 132.” TEX . CIV. PRAC . & REM . CODE ANN . §§ 14.001; 132.001-.003 (Vernon

2005) (requiring that the declaration be in writing and subscribed by the declarant to be

true, under penalty of perjury; prescribing the form to be used).

       Chapter 14 sets forth procedural requirements an inmate must satisfy as a

prerequisite to filing suit. See TEX . CIV. PRAC . & REM . CODE ANN . §§ 14.002, 14.004,

14.005, 14.006; see also Lilly v. Northrep, 100 S.W.3d 335, 336 (Tex. App.–San Antonio

2002, pet. denied). Should the inmate fail to comply with these requirements, his suit will

be dismissed. Lilly, 100 S.W.3d at 336 (citing Bell v. Tex. Dep't of Crim. Justice-Inst. Div.,

962 S.W.2d 156, 158 (Tex. App.–Houston [14th Dist.] 1998, pet. denied)). “The purpose

of the various filing requirements is merely to assist the trial judge in determining whether

the suit is frivolous.”   Id. at 337 (citing Clark v. Unit, 23 S.W.3d 420, 422 (Tex.

App.–Houston [1st Dist.] 2000, pet. denied)).

       Even if the inmate meets all of chapter 14's procedural requirements, the trial court

may still dismiss the suit as frivolous. Id. This is so because the trial court’s discretion to

dismiss a lawsuit brought under chapter 14 is broad when the claim is frivolous or

malicious, and the trial court is not required to hold a hearing before dismissing a frivolous



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or malicious claim brought under chapter 14. Id.; Spurlock v. Schroedter, 88 S.W.3d 733,

736 (Tex. App.–Corpus Christi 2002, pet. denied); see TEX . CIV. PRAC . & REM . CODE ANN .

§ 14.003(c).

                                      IV. DISCUSSION

       The trial court dismissed the cause “due to Plaintiff’s violation of Chapter Fourteen

of the Texas Civil Practice and Remedies Code.” Because the trial court did not state the

specific ground under chapter 14, Newby must show that each of the State’s arguments

alleged in its amicus curiae is insufficient to support the dismissal. Carson v. Walker, 134

S.W.3d 300, 302 (Tex. App.–Amarillo 2003, pet. denied). Among other arguments, the

State asserted that Newby failed to comply with section 14.004 because his affidavit

regarding prior suits did not include the disposition of two of the previous suits. See TEX .

CIV. PRAC . & REM . CODE ANN . § 14.004(a)(2)(D). We agree.

       Section 14.004(a) requires the inmate to list all prior lawsuits, in which the inmate

was a plaintiff and was not represented by an attorney and to list the results of such suits,

among other things. Id. Newby listed, in his affidavit, eight prior lawsuits. For cause

number 20,456, he stated “Operative Facts—filed 5/08/07 addressing improper disciplinary

conviction for ‘fraud,’” and for cause number 20,457, he claimed, “All info [sic] same as

[cause number 20,457], except charge[] ‘extortion.’”       Newby argues on appeal that

because the suits were “pending” at the time the affidavit was filed in the present action,

“[t]here are no ‘results’ to provide.” However, the inmate “cannot shift the burden to the

trial court to search out the necessary information concerning” the prior suits. Thompson

v. Rodriguez, 99 S.W.3d 328, 330 (Tex. App.–Texarkana 2003, no pet.). Other prior suits



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were listed as “dismissed,” “no activity,” “case pending,” or “transferred.” The burden was

on Newby to show compliance with section 14.004. Id. The trial court did not abuse its

discretion by dismissing Newby’s suit under chapter 14.

                                    V. DISMISSAL WITH PREJUDICE

        When we review a trial court’s dismissal with prejudice under chapter 14, we should

consider whether the inmate could remedy the error through a more specific pleading.

Williams v. Brown, 33 S.W.3d 410, 412 (Tex. App.–Houston [1st Dist.] 2000, no pet.); see

Denton v. Hernandez, 504 U.S. 25, 34 (1992) (construing the federal in forma pauperis

statute and finding that appellate courts should review whether dismissal was with or

without prejudice); Lentworth v. Trahan, 981 S.W.2d 720, 722-23 (Tex. App.–Houston [1st

Dist.] 1998, no pet.) (listing the instances in which a suit may be dismissed with prejudice);

see also Holloway v. Anderson, No. 13-00-369-CV, 2001 WL 34615356, at *3 (Tex.

App.–Corpus Christi Aug. 16, 2001, no pet.) (not designated for publication) (same). Here,

the trial court dismissed the suit with prejudice, but dismissal with prejudice was improper

because the inmate could remedy the error.1 Thomas v. Knight, 52 S.W.3d 292, 295-96

(Tex. App.–Corpus Christi 2001, pet. denied) (holding that dismissal under Texas Civil

Practice and Remedies Code section 14.004 should be without prejudice); Hickman v.

Adams, 35 S.W.3d 120, 124 (Tex. App.–Houston [14th Dist.] 2000, no pet.) (same).




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          The attorney general’s am icus asserted four grounds to support its argum ent that Newby’ case
violated chapter fourteen: (1) Newby failed to fully exhaust his adm inistrative rem edies for all nam ed
defendants; (2) Newby failed to file a com plete affidavit; (3) Newby failed to file a certified copy of his
prisoner’s trust account; and (4) Newby included frivolous or m alicious claim s. W e have considered each of
these assertions and have determ ined that none support dism issal with prejudice. See Lentworth, 981
S.W .2d at 722-23; see also Holloway, 2001 W L 34615356, at *3.



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                                     VI. CONCLUSION

       Because Newby can remedy the error, we modify the judgment to reflect that

Newby’s suit is dismissed “without prejudice.” See also Hickman, 35 S.W. at 124; Hughes

v. Garrett, No. 13-01-485-CV, 2002 WL 34230951, at *2 (Tex. App.–Corpus Christi Oct.

31, 2002, no pet.) (not designated for publication). As modified, we affirm the trial court’s

judgment. See TEX . R. APP. P. 43.2.



                                                  ________________________________
                                                  GINA M. BENAVIDES,
                                                  Justice

Memorandum Opinion delivered and
filed this the 12th day of March, 2009.




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