Robert Bowman, Boyd Unit Inmate v. Sheri D. Hendrix, T.D.C.J., Food Service Divison--Appeal from 87th District Court of Freestone County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-07-00082-CV
______________________________
ROBERT BOWMAN, BOYD UNIT INMATE, Appellant
V.
SHERI D. HENDRIX, T.D.C.J.,

FOOD SERVICE DIVISION, Appellee

 
On Appeal from the 87th Judicial District Court
Freestone County, Texas
Trial Court No. 07-224-B
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION

After filing several internal grievances against the cafeteria for the Texas Department of Criminal Justice's Boyd Unit (located in Teague, Texas), Robert Bowman filed a lawsuit against the captain of that cafeteria. The suit alleged the Boyd Unit was, among other things, providing nutritionally insufficient meals for the prison population. On its own motion, the trial court dismissed Bowman's lawsuit without prejudice because Bowman had failed to include with his original petition a list of all previous lawsuits he had filed. Bowman now appeals that dismissal. We affirm.

Chapter 14 of the Texas Civil Practice and Remedies Code governs all civil lawsuits (except for those under the Texas Family Code) brought by Texas inmates in a state district, county, justice of the peace, or small claims court and in which the inmate files an affidavit or unsworn declaration of the inability to pay the court costs associated with filing litigation. Tex. Civ. Prac. & Rem. Code Ann. 14.002 (Vernon 2002). We review a trial court's dismissal of such a lawsuit (filed pursuant to Chapter 14 of the Texas Civil Practice and Remedies Code) under an abuse of discretion standard. Clark v. Unit, 23 S.W.3d 420, 421 (Tex. App.--Houston [1st Dist.] 2000, pet. denied). A trial court abuses its discretion when its decision is outside the zone of reasonable disagreement or when the court's decision is made without reference to guiding rules or principles. Id.; see also Breckenridge v. Nationsbank of Tex., N.A., 79 S.W.3d 151, 157 (Tex. App.--Texarkana 2002, pet. denied).

An inmate who seeks to file a lawsuit without paying the typical filing fees associated with civil litigation must, in addition to other requirements, file with his or her original petition a specialized, separate affidavit. This affidavit must identify each lawsuit, "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 . . . ." Tex. Civ. Prac. & Rem. Code Ann. 14.004(a)(1) (Vernon 2002). This affidavit must further describe each of the listed suits 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.

 

Tex. Civ. Prac. & Rem. Code Ann. 14.004(2) (Vernon 2002). The purpose of Article 14.004 "is to curb the constant, often duplicative, inmate litigation, by requiring the inmate to notify the trial court of previous litigation and the outcome." Clark, 23 S.W.3d at 422.

A trial court may, on its own motion, dismiss an inmate's civil lawsuit under certain circumstances. One such instance when sua sponte dismissal is permitted is when the trial court finds the inmate's current lawsuit "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)(4) (Vernon 2002). If an inmate does not file the affidavit with his or her lawsuit (that affidavit which lists and describes all the inmate's previous litigation) or if that affidavit is incomplete, then a trial court is entitled to assume the current lawsuit is substantially similar to one previously filed by the inmate and, therefore, frivolous. Bell v. Tex. Dep't of Criminal Justice-Institutional Div., 962 S.W.2d 156, 158 (Tex. App.--Houston [14th Dist.] 1998, pet. denied).

In this case, Bowman did not file the affidavit required by Article 14.004 of the Texas Civil Practice and Remedies Code. He states in his appellate brief that he did not file the affidavit because he had never previously filed any lawsuits. Such evidence is, however, outside the record. We are limited to the appellate record before us. Facts that are outside the official record cannot be made part of the record. Merch. Ctr., Inc. v. WNS, Inc., 85 S.W.3d 389, 394 (Tex. App.--Texarkana 2002, no pet.). If Bowman had not previously filed any lawsuits, he must nevertheless file an affidavit stating such because the affidavit is mandatory under Chapter 14 of the Texas Civil Practice and Remedies Code.

In this case, our law authorized the trial court to presume Bowman's current lawsuit was substantially similar to one Bowman had previously filed, but which was currently unknown to the trial court because Bowman had not filed the required affidavit. Further, the trial court was permitted under our law to assume Bowman's current lawsuit was based on the same operative facts as that previous litigation and was, therefore, frivolous. Chapter 14 of the Texas Civil Practice and Remedies Code expressly authorizes a trial court to dismiss such a lawsuit on the court's own motion. The trial court's decision to dismiss Bowman's lawsuit without prejudice was proper under our law. No abuse of discretion has been shown.

We overrule Bowman's sole point of error and affirm the trial court's judgment.

 

Jack Carter

Justice

Date Submitted: August 13, 2007

Date Decided: August 22, 2007