Larry D. Henson v. Rebecca Burkett, et al.--Appeal from 52nd District Court of Coryell County

IN THE

TENTH COURT OF APPEALS

No. 10-96-176-CV

LARRY D. HENSON,

Appellant

v.

REBECCA BURKETT, ET AL.,

Appellees

From the 52nd District Court

Coryell County, Texas

Trial Court # 30,112

O P I N I O N

Appellant Henson appeals from an order of the trial court dismissing his pro se informa pauperis action. Henson, a prison inmate brought suit pro se informa pauperis against Rebecca Burkett, a mailroom official at the prison, and the Directors Review Committee for failing to mail a letter he sent to the person to whom it was addressed as well as for refusing to return to him the unmailed letter. Henson sought an injunction "that his letter be permitted to be mailed out of the institution."

The trial court dismissed the action finding that the cause of action was frivolous because the claim failed to state a cause of action.

Appellant appeals on one point of error: "The district court abused its discretion where it dismissed Appellant petition for failure to state a cause of action."

Rule 145, Texas Rules of Civil Procedure, allows a "party who is unable to afford costs" to file an affidavit in lieu of security for costs. Chapter 14, 14.003, Texas Civil Practice & Remedies Code, applies to suits brought by an inmate who has filed an affidavit or unsworn declaration 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) that the allegation of poverty in the affidavit is false; (2) the claim is frivolous or malicious; or (3) the inmate filed an affidavit or unsworn declaration 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 realistic 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 because the claim arises from the same operative fact. Id. 14.003(a).

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 cause number, the court in which it was brought, the names of the parties, and stating the result of the suit. Id. 14.004(a). This section requires the inmate to file a certified copy of his trust account statement from the Department. Id. 14.004(c). Section 14.005 applies to complained of acts that are subject to the required grievous procedure set up by the Department.

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).

Henson's petition was not accompanied by the affidavit or unsworn declaration required by 14.004, Tex. Civ. Prac. & Rem. Code. 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). The supplemental filing required by 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 the courts review inmate litigation.

Because the court can dismiss when 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.

The court did not abuse its discretion in dismissing Henson's suit when he failed to file the accompanying affidavit or unsworn declaration describing all prior litigation to which he was a party-plaintiff.

The order of the trial court is affirmed.

FRANK G. McDONALD

Chief Justice (Retired)

Before Chief Justice Davis,

Justice Vance, and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed November 6, 1996

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