MARK A. HUGHES v. GERALD GARRETT, VICTOR RODRIGUEZ, ET AL.--Appeal from 258th District Court of Polk County

    NUMBER 13-01-485-CV

    COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

  CORPUS CHRISTIBEDINBURG

MARK A. HUGHES,

TDCJ-ID #494140, Appellant,

v.

GERALD GARRETT, VICTOR

RODRIGUEZ & ALL OTHER

PRESENT AND FUTURE

  MEMBERS, Appellees.

On appeal from the 258th District Court of Polk County, Texas.

O P I N I O N

Before Chief Justice Valdez and Justices Ya ez and Castillo

Opinion by Justice Ya ez

Appellant, Mark A. Hughes, a state prison inmate, filed a pro se civil rights complaint against appellees, Gerald Garrett, Victor Rodriguez, and all other present and future members of the parole board, claiming that the pertinent statutes do not provide the proper guidelines for the parole board to make their decisions. The trial court ordered dismissal with prejudice because appellant failed to file a certified copy of his inmate trust account statement as required by chapter 14 of the civil practice and remedies code. Tex. Civ. Prac. & Rem. Code Ann. '' 14.004(c), 14.006(f) (Vernon Supp. 2002). Hughes then filed a pro se appellant=s brief challenging the trial court=s order. We modify the judgment and affirm as modified.

Standard of Review

AThe trial court has broad discretion to dismiss a lawsuit brought under chapter 14 as frivolous or malicious.@ Walker v. Gonzalez County Sheriff=s Dep=t, 35 S.W.3d 157, 161 (Tex. App.BCorpus Christi 2000, pet. denied); see Tex. Civ. Prac. & Rem. Code Ann. ' 14.003(a)(2) (Vernon Supp. 2002). AThe dismissal of a lawsuit brought by an inmate who has filed an affidavit or declaration of inability to pay costs is reviewed under an abuse of discretion standard.@ Walker, 35 S.W.3d at 161. ATo establish abuse of discretion, the complaining party must show that the trial court=s action was arbitrary or unreasonable in light of all the circumstances in the case.@ Id. AStated differently, abuse of discretion is determined by examining whether the trial court acted without reference to any guiding rules and principles.@ Id.

Analysis

By his first point of error, appellant contends the requirement that he file a copy of his inmate trust account statement is a violation of his first amendment rights. The crux of appellant=s argument is that he is impeded, as a non-lawyer, by the filing procedures that must be followed in order to gain access to the court system. We disagree. In Texas, chapter 14 of the civil practice and remedies code sets out the special procedural rules governing inmate litigation (except for suits brought under the family code) in which the inmate files an affidavit or unsworn declaration of inability to pay costs. Tex. Civ. Prac. & Rem. Code Ann. ' 14.001 (Vernon Supp. 2002); seeWalker, 35 S.W.3d at 160. The procedures set out in chapter 14 were enacted by the legislature Ato 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.@ Walker, 35 S.W.3d at 160. A[T]he supplemental filing required by section 14.004 is designed to assist the court in making the determinations that the legislature has called upon it to make; thus it is an essential part of the process by which courts review inmate litigation.@ Hickson v. Moya, 926 S.W.2d 397, 399 (Tex. App.BWaco 1996, no writ). Appellant cites no authority regarding the alleged unconstitutional nature of these particular procedures. Consequently, we cannot consider this issue. See Tex. R. App. P. 38.1(h) (AThe brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.@). Appellant=s first point of error is overruled.

By his fourth point of error, appellant contends that the trial court erred by dismissing his complaint as frivolous pursuant to section 14.003 of the civil practice and remedies code. Appellant argues that section 14.003 does not state that a suit shall be dismissed as frivolous for failure to attach a certified copy of the trust account statement. However, section 14.003 is not the exclusive means of dismissing an indigent inmate=s suit. Section 14.003 addresses the reasons a court may dismiss an inmate=s suit after actual consideration of the claim. Before consideration can occur though, the appellant must satisfy certain prerequisites set out in section 14.004. Section 14.004(c) states: AThe affidavit or unsworn declaration must be accompanied by the certified copy of the trust account statement.@ Tex. Civ. Prac. & Rem. Code Ann. ' 14.004(c) (Vernon Supp. 2002). The word Amust@ alerts inmates to the mandatory nature of the requirement to include a certified copy of the trust account statement with their claim. Failure to comply with section 14.004(c) subjects the claim to dismissal. Williams v. Brown, 33 S.W.3d 410, 412 (Tex. App.BHouston [1st Dist.] 2000, no pet.). Appellant=s fourth point of error is overruled.

By his third point of error, appellant contends that the trial court violated its mandate to promulgate rules that avoid unnecessary expense to the litigant and to the State in the trial of cases. In support of this contention, appellant argues that the court should have exercised common sense and looked to the intent of the legislature in enacting the applicable statutes. As we have already noted, the legislature clearly intended for indigent inmates to strictly follow the statutory filing procedures in order to Acontrol the flood of frivolous lawsuits.@ Walker, 35 S.W.3d at 160. Furthermore, the cases appellant offers in support of his propositions are neither directly on point nor persuasive. Appellant=s third point of error is overruled.

Finally, in his second point of error, appellant contends the trial court improperly dismissed his suit with prejudice. We agree. Dismissal with prejudice is the equivalent of a final determination on the merits, as if the case had been fully tried and decided. Mossler v. Shields, 818 S.W.2d 752, 754 (Tex. 1991) (per curiam); Hickman v. Adams, 35 S.W.3d 120, 124 (Tex. App.BCorpus Christi 2000, no pet.). Thus, an order of dismissal with prejudice bars subsequent relitigation of the same causes of action or issues between the same parties. Hickman, 35 S.W.3d at 124. Dismissal with prejudice is only proper in a limited number of circumstances, and appellant=s claim does not fall under any of the categories that are appropriate for dismissal with prejudice. Lentworth v. Trahan, 981 S.W.2d 720, 722-23 (Tex. App.BHouston [1st Dist.] 1998, no pet.); see University of Tex. Med. Branch v. Hohman, 6 S.W.3d 767, 771 (Tex. App.BHouston [1st Dist.] 1999, pet. dism=d w.o.j.) (dismissal with prejudice on sovereign immunity grounds). Failure to comply with the conditions set out in section 14.004 does not warrant dismissal with prejudice. Williams, 33 S.W.3d at 412; see Thomas v. Knight, 52 S.W.3d 292, 294-96 (Tex. App.BCorpus Christi 2001, pet. denied) (holding that dismissal for inmate=s failure to comply with section 14.004(a) is not on the merits; dismissal with prejudice is improper). Appellant=s second point of error is sustained.

Conclusion

In sum, because appellant did not comply with the requirements of 14.004, we hold that the trial court did not abuse its discretion in dismissing his lawsuit. Tex. Civ. Prac. & Rem. Code Ann. ' 14.004 (Vernon Supp. 2002); Walker, 35 S.W.3d at 162; Williams, 33 S.W.3d at 412. However, we must reform the trial court order to provide that the claim is dismissed without prejudice. Williams, 33 S.W.3d at 412. As modified, we affirm the judgment.

LINDA REYNA YA EZ

Justice

Do not publish. Tex. R. App. P. 47.3.

Opinion delivered and filed this the

31st day of October, 2002.