Opinion
No. 13-05-559-CV
Opinion delivered and Filed February 21, 2008.
On appeal from the 156th District Court of Bee County, Texas.
Before Justices Rodriguez, Garza, and Vela.
MEMORANDUM OPINION
Appellant, Kirk Wayne McBride, Sr., is currently incarcerated at the McConnell Unit of the Texas Department of Criminal Justice serving a ninety-nine year sentence. Acting pro se, he appeals from the trial court's May 31, 2005 order dismissing his claims without prejudice, as frivolous, pursuant to chapter 14 of the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. REM. CODE ANN. §§ 14.001-.014 (Vernon 2002). By one issue, McBride contends that the trial court erred in overruling his motion for new trial. We affirm.
The record neither references the crime McBride was convicted of nor the date in which McBride began serving his sentence.
I. FACTUAL AND PROCEDURAL BACKGROUND
McBride filed his original petition on March 5, 2005, complaining that his right to due process under the 14th Amendment of the United States Constitution was violated by the Texas Board of Pardons and Paroles (the "Board") during his parole review hearing. U.S. CONST. amend. XIV. Proceeding pro se, McBride filed this lawsuit in forma pauperis. On April 11, 2005, the Board filed its original answer denying all of McBride's allegations and demanded a jury trial.
Specifically, McBride takes issue with the following findings of the Texas Board of Prisons and Pardons (the "Board"):
1D. The record indicates that the inmate has repeatedly committed criminal episodes or has a pattern of similar offenses that indicates a predisposition to commit criminal acts when released; or the record indicates that the inmate is a leader or active participant in gang or organized criminal activity; or the record indicates a juvenile or an adult arrest or investigation for felony or misdemeanor offenses; and
2D. The record indicates that the inmate committed one or more violent criminal acts indicating a conscious disregard for the lives, safety, or property of others; the instant offense or pattern of criminal activity has elements of brutality, violence, or conscious selection of victim's vulnerability such that the inmate poses an undue threat to the public; the record indicates use of a weapon.
McBride alleges that he was denied constitutionally protected due process rights by the Board because: (1) the Board did not provide him with an opportunity for a hearing to prove his case; (2) the Board did not provide him with adequate notice of his parole board interview; (3) the Board's decision was based upon an ad hoc determination; (4) the Board did not provide him with access to an attorney; (5) the Board's findings are unsupported by the record and are overly vague; and (6) the Board's findings are not supported by its own guidelines and policies.
In support of his intent to proceed in forma pauperis, McBride attached an "AFFIDAVIT OF INABILITY TO PAY COSTS" to his original petition. No other affidavits were filed.
The Board filed a motion to dismiss without prejudice pursuant to chapter 14 of the Texas Civil Practice and Remedies Code on May 25, 2005. See TEX. CIV. PRAC. REM. CODE ANN. §§ 14.001-.014. In its motion to dismiss, the Board alleged McBride failed to provide an affidavit concerning previous filings and a certified copy of his trust account statement. The Board further alleged that (1) the Board is entitled to sovereign immunity, (2) McBride failed to state a cognizable claim pursuant to title 42, section 1983 of the United States Code, (3) McBride does not have a constitutionally protected interest in parole review procedures, and (4) all of McBride's claims brought under the Texas Administrative Procedure Act are barred by a thirty-day statute of limitations. On May 31, 2005, the trial court, without a hearing, dismissed McBride's claims without prejudice, as frivolous.
A trial court's decision on whether to hold a hearing is discretionary. See TEX. CIV. PRAC. REM. CODE ANN. § 14.003(c) (Vernon 2002).
On June 24, 2005, McBride filed a motion for new trial with the trial court. In his motion, McBride alleged that the trial court erred in dismissing his claims without allowing him to "correct any defects that did not directly or indirectly effect [sic] the jurisdiction of the Court over the parties and subject matter." In an attempt to correct such defects, McBride attached a certified copy of his trust account statement and an unsworn affidavit detailing prior lawsuits filed. McBride's affidavit, in particular, provides that he has filed twelve different lawsuits.
Of the twelve lawsuits which McBride has filed, many have been dismissed as frivolous or malicious. McBride's affidavit reflects that two of his twelve filed lawsuits are pending and that he has been the losing party in all of the remaining lawsuits filed. The majority of the lawsuits filed by McBride were against governmental entities or government agents, including six lawsuits against the Texas Department of Criminal Justice and one lawsuit against Sheriff Jack Bremer. The affidavit does not provide dates pertaining to the lawsuits.
The record does not indicate that the trial court ruled on McBride's motion for a new trial. The motion, therefore, was overruled by operation of law. TEX. R. CIV. P. 329b(C); see TEX. R. APP. P. 33.1(b) ("In a civil case, the overruling by operation of law of a motion for new trial or a motion to modify the judgment preserves for appellate review a complaint properly made in the motion, unless taking evidence was necessary to properly present the complaint in the trial court."). On August 24, 2005, McBride filed a notice of appeal from the order rendered by the trial court on May 31, 2005. Accompanying McBride's notice of appeal was an affidavit of indigence.
II. STANDARD OF REVIEW
We review a dismissal of an inmate's lawsuit in forma pauperis under chapter 14 of the civil practice and remedies code for abuse of discretion. See Harrison v. Tex. Dep't of Criminal Justice-Inst. Div., 164 S.W.3d 871, 874 (Tex.App.-Corpus Christi 2005, no pet.); Thomas v. Knight, 52 S.W.3d 292, 294 (Tex.App.-Corpus Christi 2001, pet. denied). Abuse of discretion is determined by examining whether the trial court acted without reference to any guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985); Thomas, 52 S.W.3d at 294-95. Where the trial court has not specified the grounds for dismissal in its order, the order will be affirmed if any of the theories advanced in the motion to dismiss supports the dismissal. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989); Walker v. Gonzales County Sheriff's Dep't, 35 S.W.3d 157, 162 (Tex.App.-Corpus Christi 2000, pet. denied).
III. ANALYSIS
Inmate litigation (except suits brought under the family code) in which the inmate files an affidavit or unsworn declaration of inability to pay costs is governed by the special procedural rules set out in chapter 14 of the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. REM. CODE ANN. § 14.001. The legislature enacted this statute to control the flood of frivolous lawsuits being filed in Texas courts by prison inmates because these suits consume valuable judicial resources with little offsetting benefits. Hickson v. Moya, 926 S.W.2d 397, 399 (Tex.App.-Waco 1996, no writ). The rules set out in chapter 14 may not be modified or repealed by the regular rules of civil procedure. TEX. CIV. PRAC. REM. CODE ANN. § 14.014.
The trial court has broad discretion to dismiss a lawsuit brought under chapter 14 as frivolous or malicious. Id. § 14.003(a)(2); Jackson v. Tex. Dep't of Criminal Justice-Inst. Div., 28 S.W.3d 811, 813 (Tex.App.-Corpus Christi 2000, pet. denied); Lentworth v. Trahan, 981 S.W.2d 720, 722 (Tex.App.-Houston [1st Dist.] 1998, no pet.). In determining whether a claim is frivolous or malicious, the trial court may consider whether: (1) the claim's realistic chance of ultimate success is slight; (2) the claim has no arguable basis in law or fact; (3) it is clear that the party cannot prove facts in support of the claim; or (4) the claim is substantially similar to a previous claim filed by the inmate because the claim arises from the same operative facts. TEX. CIV. PRAC. REM. CODE ANN. § 14.003(b); Jackson, 28 S.W.3d at 811.
Furthermore, section 14.004 of the Texas Civil Practice and Remedies Code provides that:
(a) An inmate who files an affidavit or unsworn declaration of inability to pay costs shall file a separate affidavit or declaration:
(1) identifying each suit, other than a suit 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 suit was brought; and
(2) describing each suit that was previously brought by:
(A) stating the operative facts for which relief was sought;
(B) listing the case name, cause number, and the court in which the suit was brought;
(C) identifying each party named in the suit; and
(D) stating the result of the suit, including whether the suit was dismissed as frivolous or malicious under Section 13.001 or Section 14.003 or otherwise.
(b) If the affidavit or unsworn declaration filed under this section states that a previous suit was dismissed as frivolous or malicious, the affidavit or unsworn declaration must state the date of the final order affirming the dismissal.
(c) The affidavit or unsworn declaration must be accompanied by the certified copy of the trust account statement required by Section 14.006(f).
TEX. CIV. PRAC. REM. CODE ANN. § 14.004.
McBride timely filed his motion for new trial on June 24, 2005. See TEX. R. CIV. P. 329b. McBride attached to his motion a certified copy of his trust account statement and an affidavit concerning his previous filings. However, no affidavit or unsworn declaration and no certified copy of McBride's trust account statement were provided to the trial court prior to McBride's motion for new trial. With respect to the affidavit, this Court has previously held:
when 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 therefore, frivolous. Our holding advances the purposes for which the Texas Legislature enacted the section on inmate litigation and the special requirements in section 14.004.
Jackson, 28 S.W.3d at 814; see Samuels v. Strain, 11 S.W.3d 404, 406 (Tex.App.-Houston [1st Dist.] 2000, no pet.); Bell v. Tex. Dep't of Criminal Justice-Inst. Div., 962 S.W.2d 156, 158 (Tex.App.-Houston [14th Dist.] 1998, pet. denied); Thomas v. Wichita Gen. Hosp., 952 S.W.2d 936, 939 (Tex.App.-Fort Worth 1997, pet. denied); Hickson, 926 S.W.2d at 399 (trial court does not err when dismissing a suit under chapter 14 where the inmate has filed no affidavit, or a defective one). Because McBride provided the affidavit and certified copy of the trust fund account statement for the first time in his motion for new trial, the trial court did not abuse its discretion in dismissing McBride's claims without prejudice for failure to comport with chapter 14 of the civil practice and remedies code. See TEX. CIV. PRAC. REM. CODE ANN. § 14.004 ; see also Walker, 35 S.W.3d at 162; Williams v. Brown, 22 S.W.3d 410, 412 (Tex.App.-Houston [1st Dist.] 2000, no pet.) (dismissing an inmate's pro se lawsuit for failure to attach a certified copy of the inmate's trust fund account statement).
With regard to his motion for new trial, McBride has not provided any relevant authority to support his contention that the trial court erred in overruling his motion. See TEX. R. APP. P. 38.1(h). Nevertheless, we will review this contention.
The Texas Rules of Civil Procedure provide that a motion for new trial not determined by written order signed within seventy-five days after the judgment was signed is considered overruled by operation of law. TEX. R. CIV. P. 329b(c). No written order is necessary where the motion is overruled by operation of law. See id.; see also Combustion Eng'g, Inc. v. Vukich, No. 13-01-750-CV, 2002 Tex. App. LEXIS 8243, at *6 n. 6 (Tex.App.-Corpus Christi Nov. 21, 2002, no pet.) (not designated for publication). We review the entire record for abuse of discretion, when the trial court denies a motion for new trial. See Pharo v. Chambers County, 922 S.W.2d 945, 947 (Tex. 1996); Dir. State Employees Workers' Comp. Div. v. Evans, 889 S.W.2d 266, 268 (Tex. 1994). In determining whether an abuse of discretion has occurred, we view the evidence in a light most favorable to the court's decision and indulge every legal presumption in favor of its judgment. In re J.I.Z., 170 S.W.3d 881, 883 (Tex.App.-Corpus Christi 2005, no pet.). Based on our review of the entire record, we find no abuse of discretion. See Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985) (an abuse of discretion occurs only when the trial court reaches a decision that is "so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.").
Assuming, arguendo, that the trial court, in exercising its discretion, afforded McBride an opportunity to cure the defects in his pleadings by accepting the unsworn affidavit and certified copy of his trust account statement attached to his motion for new trial, McBride's claims would still be subject to dismissal. Specifically, McBride's affidavit chronicling the lawsuits he has filed does not comport with section 14.004(b). See TEX. CIV. PRAC. REM. CODE ANN. § 14.004(b). For each case, McBride has listed the case name, cause number, court, operative facts for relief, parties to the suit, and the result of the suit. McBride indicated that several of the cases listed in his affidavit were dismissed as frivolous or malicious. McBride, however, has failed to provide the trial court with the date of the final order affirming the dismissals, as required by section 14.004(b). See id. Therefore, because McBride still has not complied with the requirements of chapter 14 of the civil practice and remedies code, his claim is still subject to dismissal. See id.; see also Jackson, 28 S.W.3d at 814. As such, the trial court did not err in overruling McBride's motion for new trial. See Pharo, 922 S.W.2d at 947; Evans, 889 S.W.2d at 268; In re J.I.Z., 170 S.W.3d at 883. Accordingly, we overrule McBride's sole issue on appeal.
It is noteworthy that the trial court dismissed McBride's claims without prejudice. Dismissal with prejudice constitutes adjudication on the merits and operates as if the case had been fully tried and decided. Mossler v. Shields, 818 S.W.2d 752, 754 (Tex. 1991). This means that orders dismissing cases with prejudice have full res judicata and collateral estoppel effect, barring subsequent relitigation of the same causes of action or issues between the same parties. Webb v. Jorns, 488 S.W.2d 407, 409 (Tex. 1972); Lentworth v. Trahan, 981 S.W.2d 720, 722 (Tex.App.-Houston [1st Dist.] 1998, no pet.). However, it is improper to dismiss an inmate's suit with prejudice when the inmate is proceeding in forma pauperis and was not first provided with an opportunity to amend his pleadings. See Hughes v. Massey, 65 S.W.3d 743, 746 (Tex.App.-Beaumont 2001, no pet); see also Lentworth, 981 S.W.2d at 722-23 (setting out procedural sanctions supporting dismissal with prejudice, none of which are applicable here). Moreover, a dismissal for failure to comport with the conditions set out in section 14.004 is not a dismissal on the merits, but rather an exercise of the trial court's discretion under chapter 14 of the civil practice and remedies code. See Hickman v. Adams, 35 S.W.3d 120, 124 (Tex.App.-Houston [14th Dist.] 2000, no pet.).
IV. CONCLUSION
We affirm the judgment of the trial court.