DONALD RAY McCRAY, Appellant v. CLERK OF THE COURT, Appellee

REVERSE and REMAND; Opinion Filed September 4, 2007.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-06-00755-CV
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DONALD RAY McCRAY, Appellant
V.
CLERK OF THE COURT, Appellee
.............................................................
On Appeal from the 134th District Court
Dallas County, Texas
Trial Court Cause No. 05-11179-G
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MEMORANDUM OPINION
Before Justices Whittington, Francis, and Lang
Opinion By Justice Lang
        On the Court's own motion, we WITHDRAW our opinion and VACATE our judgment of August 30, 2007. [This is now the opinion of the Court.]
        Appellant Donald Ray McCray, proceeding pro se, appeals the trial court's dismissal without prejudice of his suit against appellee, Clerk of the Court, asserting denial of the right to appeal from a criminal conviction. In his sole issue, appellant argues the trial court erred in dismissing his suit because his petition complied with all inmate litigation requirements of chapter14 of the Texas Civil Practice and Remedies Code.   See Footnote 1  Because the issues in this appeal involve the application of well-settled principles of law, we issue this memorandum opinion. See Tex. R. App. P. 47.4. We reverse the trial court's order of dismissal and remand this case to the trial court for further proceedings consistent with this opinion.
I. FACTUAL AND PROCEDURAL BACKGROUND
 
        Appellant, an inmate confined in the Ellis Unit of the Texas Department of Criminal Justice at Huntsville, Texas, filed this suit in the 156th Judicial District Court in Bee County, Texas, on January 22, 2004. Appellant requested writ of habeas corpus relief pursuant to chapter 11 of the Texas Code of Criminal Procedure and asserted violation of his constitutional rights by “Clerk of the Court at Frank Crowley Courts Building” in Dallas, Texas. Specifically, appellant contended appellee “denied and refused filing and docketing” of evidence “filed” by appellant respecting “controverted, previously unresolved factual issues material to the legality of [appellant's] confinement.” In addition, appellant asserted appellee “violated” the duty owed to appellant by appellee pursuant to article 40.001 of the Texas Code of Criminal Procedure, which provides that a new trial shall be granted an accused where material evidence favorable to the accused has been discovered since trial.
        On July 27, 2005, the Dallas County District Attorney's Office filed an original answer, on behalf of appellee, in which it generally denied appellant's original petition and asserted the following affirmative defenses: (1) sovereign immunity; (2) derived judicial immunity; (3) official immunity; (4) contributory negligence; (5) collateral estoppel and res judicata; and (6) statute of limitations. In addition, appellee filed a motion to transfer venue to Dallas County, Texas, asserting that appellant's claims against “Clerk of the Court” were, as a matter of law, claims against Dallas County, and therefore, pursuant to section 15.015 of the Texas Civil Practice and Remedies Code, must be brought in Dallas County. Further, on that same date, appellee filed a plea in abatement, asking the court to abate any further proceedings until ruling on its motion to transfer venue, and a plea to the jurisdiction.
        Appellee's motion to transfer venue was granted on October 21, 2005. The record reflects that on November 3, 2005, the 156th Judicial District Court in Bee County transferred this case to the 134th Civil District Court in Dallas County. The “Transfer Transmittal Certificate” signed on behalf of the Bee County District Clerk on October 27, 2005, lists 119 documents transferred. A November 3, 2005 entry on the case summary maintained by the Dallas County District Clerk reads “119 INSTS TRF BEE COUNTY 11/14/05 SENT JACKET TO COURT.”
        On April 27, 2006, the trial court dismissed this case without prejudice as to refiling “due to the failure of [appellant] to comply with § 14.004 of the Texas Civil Practice and Remedies Code.” The court stated in relevant part, “On November 3, 2005 Plaintiff pro se filed his Original Petition along with his Forma Pauperis Affidavit. However, neither the Affidavit Relating to Previous Filings nor a certified copy of Plaintiff's Trust account Statement were filed.” This appeal followed.
II. DISMISSAL UNDER CHAPTER 14 OF THE TEXAS
CIVIL PRACTICE AND REMEDIES CODE
 
 
        In a single issue, appellant contends the trial court erred in “holding [appellant] liable” for the “incompleteness, state and condition of the original petition records and documents (missing) after transfer to Dallas County.” Appellant argues “it is clear or should be [that appellant's original petition] complied with all statutory section[s] governing procedural requirements of pro se civil litigation” as required by chapter 14 of the Texas Civil Practice and Remedies Code. Appellant requests this Court to “amend/order this case back to the trial court for a pretrial conference hearing and or (ADR) alternative dispute resolution.” No appellate brief was filed by appellee.
         A. Standard of Review and Applicable Law
 
        We review a trial court's dismissal of an indigent inmate's suit under an abuse of discretion standard and will reverse only if we conclude the court acted without reference to any guiding rules or principles. Hickman v. Adams, 35 S.W.3d 120, 123 (Tex. App.-Houston [14th Dist.] 2000, no pet.).
        Chapter 14 of the Texas Civil Practice and Remedies Code applies to suits brought by inmates in district, county, justice of the peace, or small claims courts “in which an affidavit or unsworn declaration of inability to pay costs is filed by the inmate.” Tex. Civ. Prac. & Rem. Code Ann. § 14.002(a) (Vernon 2002). Section 14.003 allows a trial court to dismiss a suit filed under chapter 14 if it finds that:
(1) the allegation of poverty in the affidavit or unsworn declaration is false;
 
(2) the claim is frivolous or malicious; or
 
(3) the inmate filed an affidavit or unsworn declaration required by this chapter that the inmate knew was false.
 
Tex. Civ. Prac. & Rem. Code Ann. § 14.003(a) (Vernon 2002).
         To enable the court to determine whether a suit is frivolous or malicious, section 14.004 requires the inmate to file an affidavit or declaration “relating to previous filings.” Tex. Civ. Prac. & Rem. Code Ann. §14.004 (Vernon 2002). In addition, to enable the court to determine whether an inmate is indigent, section 14.006 requires the inmate to file a certified copy of his inmate trust account statement that “reflect[s] 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.” Tex. Civ. Prac. & Rem. Code Ann. § 14.006(f) (Vernon 2002); Hughes v. Massey, 65 S.W.3d 743, 745 (Tex. App.-Beaumont 2001, no pet.). Because the affidavit and trust account statement enable the court to determine whether an indigent inmate's suit should be dismissed, Texas courts have consistently held that the failure to file the affidavit with the required information or the inmate trust account statement can result in dismissal without notice or hearing. See Gowan v. Tex. Dep't of Criminal Justice, 99 S.W.3d 319, 322 (Tex. App.-Texarkana 2003, no pet.); Retzlaff v. Tex. Dep't of Criminal Justice, 94 S.W.3d 650, 654 (Tex. App.-Houston [14th Dist.] 2002, pet. denied). Cf. Tex. Civ. Prac. & Rem. Code Ann. § 14.003(c) (in determining whether dismissal is warranted under section 14.003, court may hold hearing).
B. Application of Law to Facts
 
                                        
1. Certified Copy of Trust Account Statement
        The trial court's order states, “On November 3, 2005 Plaintiff pro se filed his Original Petition along with his Forma Pauperis Affidavit.” Accordingly, chapter 14 of the Texas Civil Practice and Remedies Code is applicable to this suit. See Tex. Civ. Prac. & Rem. Code Ann.
§ 14.002(a) (chapter 14 applicable where inmate files affidavit of inability to pay costs). Pursuant to section 14.006(f), appellant was required to file a certified copy of his inmate trust account statement with the court. Id. § 14.006(f).
        The clerk's record contains an affidavit of indigence filed by appellant in the trial court on November 21, 2005, with a certified copy of appellant's trust account statement, dated November 16, 2005, attached. That certified copy of appellant's trust account statement, titled “Texas Department of Criminal Justice In-Forma-Pauperis Data,” reflects the balance of appellant's trust account as of November 16, 2005, and activity in the account dating back through May 2005. On its face, that certified copy of appellant's trust account statement meets the requirements of section 14.006(f). See id. (certified copy of inmate's trust account statement must reflect balance of account at time claim is filed and activity in account during six months preceding date on which claim is filed). Accordingly, we conclude that, to the extent the trial court dismissed appellant's action based on appellant's failure to file a certified copy of his trust account statement pursuant to section 14.006(f), the trial court abused its discretion. See Parsons v. Dallas County, 197 S.W.3d 915, 920 (Tex. App.-Dallas 2006, no pet.) (trial court abused its discretion in dismissing inmate's claim where record established inmate filed required trust account statement).
2. Affidavit Relating to Previous Filings
 
        Although document number 4 on the “Transfer Transmittal Certificate” from the Bee County District Clerk's Office is identified as “Affidavit Concerning Previous Filings,” the record filed in this Court on July 25, 2006, by the trial court clerk did not contain such an affidavit. In response to a request by this Court to supplement the appellate record pursuant to rule 34.5(c)(1) of the Texas Rules of Appellate Procedure, a transcript clerk in the Dallas County District Clerk's Office filed an affidavit in this Court on May 25, 2007, stating that such document could not be located in the trial court case files. On August 2, 2007, in response to an order from this Court directing the Dallas County District Clerk to obtain a copy of the missing document from the Bee County District Clerk's Office, the Dallas County District Clerk supplemented the appellate record with a copy of a document titled “Affidavit Concerning Previous Filing” filed by appellant in the 156th Judicial District Court in Bee County on January 22, 2004.
        The trial court's order indicates the record before the trial court did not contain an “Affidavit Concerning Previous Filings” of appellant. Although that document was not in the record before the trial court when its order of dismissal of April 27, 2006, was signed, the August 2, 2007 supplement to the appellate record shows appellant did, indeed, file an “Affidavit Concerning Previous Filing” on January 22, 2004, in Bee County. The Bee County District Clerk's Office was responsible for the transfer of that affidavit from the 156th Judicial District Court in Bee County to the 134th Civil District Court in Dallas County on November 3, 2005. See Tex. R. Civ. P. 89 (where motion to transfer venue is sustained, clerk of the court shall send orders and original papers to clerk of the court in which venue has been changed). The Dallas County District Clerk became the custodian of all documents transferred. See Tex. R. Civ. P. 75 (Opinions of Subcommittee on Interpretation of Rules) (“the clerk is the custodian of file papers”). Thus, fault for the apparent incompleteness of the record at trial did not lie with appellant. “The law should encourage, not frustrate, reasonable steps to correct routine administrative errors that inevitably occur in even the most well-managed courts.” Charles L. Hardtke, Inc. v. Katz, 813 S.W.2d 548, 550 (Tex. App.-Houston [1st Dist.] 1991, no writ). It would be “manifestly unjust” to cause appellant to “suffer for an error that [he] did not cause and was in no position to correct.” Id.
        We do not address whether the content of the “Affidavit Concerning Previous Filing” filed by appellant in Bee County on January 22, 2004, adequately meets the requirements of section 14.004. However, because the trial court based its order on a record before it that was apparently incomplete, we conclude that, to the extent the trial court dismissed appellant's action based on appellant's failure to file an affidavit relating to previous filings pursuant to section 14.004, the trial court should be given an opportunity to reconsider its decision in light of the record as supplemented. Cf. City of Willow Park v. Bryant, 763 S.W.2d 506, 511 (Tex. App.-Fort Worth 1988, no writ) (where denial of attorney's fees could be reversed only upon clear showing of abuse of discretion, issue of attorney's fees was neither sustained nor overruled, but was remanded to trial court for reconsideration in light of rulings in opinion). Accordingly, we reverse the trial court's order as to dismissal of appellant's suit based on appellant's failure to file a certified copy of his trust account statement pursuant to section 14.006(f), and we remand this case for reconsideration by the trial court, on the supplemented record, respecting dismissal of appellant's suit on the ground that appellant failed to file an affidavit relating to previous filings as required by section 14.004. See Tex. R. Civ. P. 77(c) (substituted copies of lost or destroyed records filed with the clerk constitute a part of the cause and have the force and effect of originals).
         III. CONCLUSION
 
        Because the record supplied to us by the trial court clerk shows appellant filed a certified copy of his trust account statement on November 21, 2005, as required by section 14.006(f) of the Texas Civil Practice and Remedies Code, we conclude the trial court abused its discretion to the extent its ground for dismissal was the failure of appellant to comply with section 14.006(f). In addition, the record, as supplemented by order of this Court, shows appellant filed an “Affidavit Concerning Previous Filing” on January 22, 2004, in the 156th Judicial District Court in Bee County prior to the transfer of this case to Dallas County. This document, which apparently was not included in the record transferred from Bee County, was not before the trial court when it ruled. Therefore, to the extent the trial court dismissed appellant's action based on appellant's failure to file an affidavit relating to previous filings pursuant to section 14.004, we conclude the trial court should be given the opportunity to review its decision in light of the supplemented record. Appellant's sole issue is decided in his favor.
        We reverse the trial court's order dismissing appellant's action and remand this case to the trial court for further proceedings consistent with this opinion.
                                                
 
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                                                          DOUGLAS S. LANG
                                                          JUSTICE
060755f.p05
 
 
 
Footnote 1 The trial court's order of dismissal did not address the proposition, asserted by counsel for appellee in the trial court, as to “whether Clerk of the Court has independent jural existence and can be a proper party to this lawsuit.” Accordingly, we do not address that issue.