Opinion
01-21-00019-CV
07-27-2021
Earnest J. Matthews v. Sherell Randall
240th District Court of Fort Bend County, Trial court case number: 19-DCV-264316
ORDER
Veronica Rivas-Molloy Judge
Appellant Earnest J. Matthews, an inmate, filed a pro se appeal from the trial court's order signed December 17, 2020 dismissing his suit for want of prosecution.
On February 24, 2021, appellant filed an application to proceed in forma pauperis on appeal. The application was not completed on the proper form and did not supply the information required by the Texas Supreme Court to obtain indigency status. On April 22, 2021, this Court forwarded the Texas Supreme Court's Statement of Inability to Afford Costs and instructed appellant that, should he file a Statement of Inability in compliance with Rule 145 in the trial court and should the trial court grant his request, he must request the preparation and filing of a supplemental clerk's record. The supplemental clerk's record filed on May 12, 2021 contained the same non-compliant form that appellant previously filed in this Court.
If appellant claims he is unable to afford payment of costs for the appellate record, he must comply with Texas Rule of Civil Procedure 145(a) and complete and file the attached Statement of Inability to Afford Costs with the trial court clerk. See Tex. R. Civ. P. 145(a). If granted, appellant also must request the preparation and filing of a supplemental clerk's record within twenty-one days of the date of the trial court's order, containing the Statement of Inability. If appellant claims an inability to afford payment of filing fees and other fees assessed by the appellate court, he must also complete and file the attached Statement of Inability to Afford Costs with this Court. See Tex. R. App. P. 20.1, comment.
Rule 145 requires a declarant to use the attached form Statement of Inability to Afford Payment of Court Costs, which has been approved by the Texas Supreme Court. See Tex. R. Civ. P. 145(a)–(b). In the alternative, the declarant may provide all the information required by the Texas Supreme Court's form: his full legal name, his address, phone number, email, date of birth, dependents, whether he is represented by Legal Aid or asked for a Legal Aid provider; whether he receives public benefits and if so, which ones; his monthly income and income sources; the value of any property he owns; his monthly expenses; and his debts, all of which must be stated under penalty of perjury. The affidavit of indigence filed by appellant in this Court on February 22, 2021 and in the trial court do not comply with Rule 145.
In addition, Appellant has not complied with the requirements of Chapter 14 of the Texas Civil Practices and Remedies Code governing inmate litigation. Section 14.004 of the Texas Civil Practice and Remedies Code provides that an inmate who files a statement or unsworn declaration of inability to pay costs must file an additional affidavit or declaration in the trial court identifying each prior lawsuit, other than an action under the Family Code, filed by the inmate without legal representation. Tex. Civ. Prac. & Rem. Code § 14.004(a). As to each prior lawsuit, the affidavit or declaration must specify the operative facts, the case name or style, the cause number, the court in which it was brought, the names of the parties, and the result of the suit. Id. If a previous action or claim was dismissed as frivolous or malicious, the affidavit or unsworn declaration of previous filings must state the date of any final judgment or order affirming the dismissal. Tex. Civ. Prac. & Rem. Code § 14.004(b). If there are no prior lawsuits, the affidavit must say that.
Additionally, the affidavit or unsworn declaration of previous filings must be accompanied by a certified copy of the inmate's trust account statement reflecting the balance of the account at the time the appeal was filed and all account activity during the six months preceding the date the appeal was filed. Tex. Civ. Prac. & Rem. Code §§ 14.004(c); 14.006(f); see Douglas v. Moffett, 418 S.W.3d 336, 339 (Tex. App.-Houston [14th Dist.] 2013, no pet.).
Appellant did not file an additional affidavit or declaration relating to previous filings in the trial court although he did attach a six-month history of his inmate trust account.
Finally, we note that Appellant prematurely filed a brief on April 16, 2021, before the reporter's record had been filed. The brief does not comply with the relevant rules in that it does not:
• contain citations to the record, see Tex. R. App. P. 38.1(d), (f)-(k);
• contain the identity of parties and counsel, see Tex. R. App. P. 38.1(a); and
• contain an appendix, see Tex. R. App. P. 38.1(k).
Accordingly, the brief is stricken. Appellant must file a corrected brief in compliance with Texas Rule of Appellate Procedure 38. The deadline for filing the corrected brief is thirty days after the date the reporter's record is filed. Tex. R. App. P. 38.6(a).
It is so ORDERED.