Bobby Brown v. Geannie Jones and John Jackson

492 S.W.3d 360, 2015 Tex. App. LEXIS 4994, 2015 WL 2348807

Opinion

MEMORANDUM OPINION

PER CURIAM

Appellant Bobby Brown, a state-prison inmate, appeals from the trial court’s dismissal of his suit. He filed a declaration of indigence with his notice of appeal, thus triggering the application of Civil Practice and Remedies Code Chapter 14, which now applies to appeals and original proceedings. Tex. Civ. Phac. & Rem. Code Ann. § 14.002(a) (West Supp.2014); Douglas v. Turner, 441 S.W.3d 337, 338 (Tex.App.-Waco 2013, no pet.).

Section 14.004(a) requires the inmate to file an affidavit or declaration “relating to previous filings” in which the inmate must detail all previous actions filed pro se, other than a suit under the Family Code, accompanied by a certified copy of the inmate’s account statement. Tex. Civ. Prac. & Rem. Cobe Ann. § 14.004(a), (c) (West Supp.2014).

The filings required by chapter 14 are “an essential part of the process by which courts review inmate litigation.” Douglas, 441 S.W.3d at 339 (quoting Hickson v. Moya, 926 S.W.2d 397, 399. (Tex. App.-Waco 1996, no writ)). The failure to file the affidavit or declaration “relating to previous filings” can result in dismissal without notice or hearing, id., even if the failure to comply with chapter 14 can be remedied. McLean v. Livingston, 456 S.W.3d 358, 359-60 (Tex.App.-Waco Jan. 22, 2015, no pet. h.; Rule 53.7(f) mot. granted) (op. on reh’g); see also Anderson v. Tex. Dep’t Crim. Just., — S.W.3d —, —, 2015 WL 1570170, at *2 (Tex.App.-Waco Mar. 19, 2015, no pet. h.). Furthermore, when the inmate fails to comply with the affidavit requirement, the court may assume that the current action is substantially similar to one previously filed by the inmate and is thus frivolous.; Douglas, 441 S.W.3d at 339.

In this appeal, while Brown filed a certified copy of his inmate account statement with his indigence declaration, he did not file an affidavit or declaration “relating to previous filings” with his notice of appeal. We thus dismiss as frivolous this appeal. Id. (dismissing appeal without notice).

(Justice Davis dissents with a note) *

* (Justice Davis notes that he would notify Brown of his section 14.004 deficiency and allow him the opportunity to cure it before dismissal. See McLean, 456 S.W.3d at 361-63 (Davis, J., dissenting); see also Anderson, — S.W.3d at —, 2015 WL 1570170, at *3 (Davis, J., dissenting).)