Terrence R. Spellmon v. James Zeller and Robert Chance--Appeal from 258th District Court of Polk County

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-02-060 CV
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TERRENCE R. SPELLMON, Appellant
V.
JAMES ZELLER AND ROBERT CHANCE, Appellees
On Appeal from the 258th District Court
Polk County, Texas
Trial Cause No. CIV 19677
OPINION

This appeal arises from the dismissal of inmate Terrence R. Spellmon's in forma pauperis suit for a writ of injunction to restrain James Zeller and Robert Chance from retaliating against Spellmon for exercising his constitutional right of access to the courts. Spellmon raises three points of error. The dismissal apparently occurred prior to service, and Zeller and Chance did not file a brief with the Court.

 

Point of error one urges, "The trial court abused its discretion when it dismissed appellant's anti-suit injunction (1) pursuant to Chapter 14, Tex. Civ. Practice and Remedies Code; in violation of Article I Sections 13 and 19 of the Texas Constitution." The order of dismissal recites that the plaintiff failed to file the required declaration of previous filings and trust account statement. See Tex. Civ. Prac. & Rem. Code Ann. 14.004 (Vernon Supp. 2002).

Spellmon does not claim that he filed a trust account statement with his petition, but does note that he filed a trust account statement with his notice of appeal. The affidavit of indigence filed to obtain indigent status on appeal is distinct from the affidavit of indigence filed to obtain indigent status in the trial court, and one does not function as the other. See Tex. R. Civ. P. 145; Tex. R. App. P. 20.1; Nabelek v. Garrett, No. 14-01-00764-CV, 2002 WL 533709, at *2 (Tex. App.-Houston [14th Dist.] April 11,2002, no pet. h.) (not yet reported) (Section 14.004 does not apply to affidavits of indigency filed for appeal); White v. Schiwetz, 793 S.W.2d 278, 281 (Tex. App.--Corpus Christi 1990, no writ) (Affidavit of indigence filed under Texas Rule of Civil Procedure 145 does not relate forward to appeal). The appellant's subsequent filing of a trust account statement with his notice of appeal did not cure the pre-existing defect on which the trial court based its order.

Spellmon argues that, because Chapter 65 of the Civil Practice and Remedies Code applies to injunction suits, Chapter 14 is inapplicable. The bond procedure included in Chapter 65 concerns the bond requirement for issuance of temporary restraining orders and temporary injunctions, and is totally unrelated to achieving indigent status for the purpose of maintaining a suit in district court. See Tex. Civ. Prac. & Rem. Code Ann. 65.041-.045 (Vernon 1997).

The appellant contends that injunctive relief is warranted because he is seeking to preserve his constitutionally guaranteed rights. States may apply their own neutral procedural rules to federal constitutional claims, unless those rules are pre-empted by federal law. Thomas v. Bush, 23 S.W.3d 215, 217 (Tex. App.--Beaumont 2000, pet. denied). Spellmon's petition for a writ of injunction is a suit filed in district court; he is an inmate; and he filed an affidavit declaring his inability to pay costs. Therefore, the suit falls within the scope of Chapter 14 of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. 14.002 (Vernon Supp. 2002). Point of error one is overruled.

Point of error two urges, "The trial court abused its discretion when it dismissed appellant's anti-suit injunction with prejudice." "A dismissal for failure to comply with the rules governing the filing of in forma pauperis suits is not a ruling on the merits; accordingly, it is error to dismiss the suit with prejudice if the inmate was not first provided with an opportunity to amend his pleadings." Hughes v. Massey, 65 S.W.3d 743, 746 (Tex. App.--Beaumont 2001, no pet.). The error is remedied by reforming the judgment. Id. Point of error two is sustained.

Point of error three contends, "The application of Texas Civil Practice and Remedies Code, Chapter 14.004 violates Article I Sections 13 and 19 of the Texas Constitution and the Texas Constitutions open court provision." The brief adds Sections 13.001 and 14.003 to the appellant's restated point of error. Spellmon argues that the restrictions on inmate litigation unreasonably restrict his access to the courts, deprive him of a vested right secured by law, and thereby violate his due process right under the Texas Constitution. He further argues the statutes (sections 13.001, 14.003, and 14.004) are unconstitutional. We have previously rejected a similar open courts challenge to the statutory procedures for obtaining indigent status. Hughes, 65 S.W.3d at 745. Also, the Waco Court of Appeals considered and rejected Spellmon's open courts and due course of law challenges to the procedure for proceeding as an indigent in a previous appeal. See Spellmon v. Sweeney, 819 S.W.2d 206, 209-10 (Tex. App.--Waco 1991, no writ). In this case, Spellmon fails to demonstrate how it was unreasonable and arbitrary to require him to support his claim of poverty and to inform the court of the other litigation that he has pursued. Instead, the appellant complains that the trial court dismissed his claim without taking into account the merits of his claim. However, a dismissal pursuant to Section 14.003 does not adjudicate the merits of the claim, and that is why the dismissal is without prejudice. We hold that the statutes in question are not unconstitutional as applied to the appellant. Point of error three is overruled.

We sustain point of error two and overrule points of error one and three. We reform the judgment to provide the cause is dismissed without prejudice. As reformed, the judgment is affirmed.

AFFIRMED AS REFORMED.

 

PER CURIAM

 

Submitted on September 12, 2002

Opinion Delivered September 19, 2002

Do Not Publish

 

Before Walker, C.J., Burgess and Gaultney, JJ.

1. This is the language used by the appellant. We do not suggest that the petition filed by Spellmon actually sought an anti-suit injunction.