Freddie Louis Brewer v. Jeffrey D. Miller, et al.--Appeal from County Court at Law of Coryell County

IN THE

TENTH COURT OF APPEALS

No. 10-96-246-CV

FREDDIE LOUIS BREWER,

Appellant

v.

JEFFREY D. MILLER, ET AL.,

Appellees

From the County Court at Law

Coryell County, Texas

Trial Court # 96-1509

O P I N I O N

Appellant Brewer appeals from an order of the trial court dismissing his pro se informa pauperis action as frivolous.

Appellant, a prison inmate, filed suit against Jeffrey D. Miller, James E. Easley, and Linda S. Barton, all officers at the Hughes Unit of the Texas Department of Criminal Justice-Institutional Division at Gatesville. Appellant alleged that in the course of transferring him from Building 8 to Building 12, Miller and Easley emptied his chain bags, and confiscated commissary food, hygiene, and miscellaneous items of property which belonged to him. Appellant alleged that Miller and Easley intentionally deprived him of his property, and that Barton failed to investigate the matter after he complained to her that he was missing the property.

Appellees filed a motion to dismiss Appellant's suit under Texas Civil Practice and Remedies Code, 14.003. Appellees' motion recited the correct cause number, i.e., 96-1509; the correct plaintiff's name, i.e., Freddie Brewer; and the correct defendants' names who were seeking the dismissal of the case, i.e., Jeffrey Miller, James Easley and Linda Barton. The trial court granted the motion to dismiss but, through error or inadvertence, recited, "all claims against defendant Garland Fikes, are dismissed with prejudice."

Appellant appeals on two points of error.

Point one asserts: "The court below abused its discretion by entering judgment for a non-party."

It is clear from the record that the order signed did not intend to adjudicate this matter as to a non-party. The names of all the parties and the relief each sought is clear from the record. It would be a useless thing to remand this case for the purpose of having the trial judge reform the judgment to recite the names of the Appellees. Crystal City Ind. Sch. Dist. v. Wagner, 605 S.W.2d 743 (Tex. App. San Antonio 1980, n.r.e.).

We therefore reform the judgment to recite that all claims against Jeffrey Miller, James Easley and Linda Barton are dismissed with prejudice.

Point one is overruled.

Point two asserts: "The court below abused its discretion if dismissal was pursuant to 14 Civil Practice & Remedies Code."

Appellant filed a pauper's affidavit pursuant to Rule 145, Texas Rules of Civil Procedure. Chapter 14, 14.003, Texas Civil Practice & Remedies Code, applies to suits brought by an inmate who has filed an affidavit of inability to pay costs. Section 14.003(a) allows a court to dismiss a suit before or after process is served if the court finds (1) the allegation of poverty is false; (2) the claim is frivolous or malicious; or (3) the inmate filed an affidavit or unsworn declaration required by Chapter 14 that the inmate knew was false. In determining whether a claim is frivolous or malicious, the court may consider whether (1) the claim's chance of ultimate success is slight; (2) the claim has no arguable basis in law or fact; (3) it is clear 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. Tex. Civ. Prac. & Rem. Code, 14.003(b).

Section 14.004 requires the inmate to file a separate affidavit or declaration identifying each prior suit brought by the inmate, specifying the operative facts, the case name, the case number, the court in which filed, the names of the parties, and the result of the suit. Id. 14.004(a). This section further requires the inmate to file a certified copy of his trust account statement from the department. Id.

Our review of a dismissal under Chapter 14 is controlled by the abuse of discretion standard. Abuse of discretion is determined by whether the court acted without reference to any guiding principles. Craddock v. Sunshine Bus Lines, 133 S.W.2d 136 (Tex. 1939).

Appellant's petition was not accompanied by the affidavit or unsworn declaration required by Section 14.004, or by a certified copy of the trust account requested by that section.

Chapter 14 was designed to control the flood of frivolous lawsuits being filed by prison inmates, consuming valuable judicial resources with little offsetting benefit. Hickson v. Moya, et al., 926 S.W.2d 397 (Tex. App. Waco 1996, no writ).

The supplemental filing required by Section 14.004 is designed to assist the court in making determinations the Legislature called upon it to make; thus, it is an essential part of the process by which courts review inmate cases.

Because the court can dismiss a case where an inmate files a false affidavit or declaration, that same policy allows a court to dismiss a suit that is filed without the affidavit or declaration. Hickson, supra.

For the reasons discussed, the trial court did not abuse its discretion in dismissing Appellant's suit.

Point two is overruled.

The order of the trial court is reformed and affirmed.

FRANK G. McDONALD

Chief Justice (Retired)

Before Chief Justice Davis,

Justice Vance and

Chief Justice McDonald (Retired)

Reformed and affirmed

Opinion delivered and filed April 30, 1997

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