Brent Alan McLean v. Brad Livingston

• Court: Court of Appeals of Texas
• Decided: January 23, 2015
• Docket: 10-14-00191-CV
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-14-00191-CV

BRENT ALAN MCLEAN, Appellant v.

BRAD LIVINGSTON, ET AL., Appellee

From the 18th District Court Johnson County, Texas Trial Court No. C201400101

DISSENTING OPINION ON REHEARING

In a memorandum opinion, we dismissed the appeal of Appellant Brent Alan

McLean, a pro se state-prison inmate, because he failed to comply with Chapter 14 by

not filing an affidavit or declaration “relating to previous filings” or a certified copy of

his inmate account statement. McLean v. Livingston, No. 10-14-00191-CV, 2014 WL

3559279 (Tex. App.—Waco July 17, 2014, no pet. h.); TEX. CIV. PRAC. & REM. CODE ANN.

§ 14.004(a), (c) (West Supp. 2014) (requiring inmate to file affidavit or declaration “relating to previous filings,” accompanied by certified copy of inmate’s account

statement).

In a footnote, we noted the timetable for McLean to file a motion for rehearing,

essentially inviting him to cure his deficiencies so that his appeal might be reinstated.

McLean, 2014 WL 3559279, at *1, n.1. McLean did just that; he filed a motion for

rehearing and an amended notice of appeal that included his declaration of previous

filings and a certified copy of his inmate account statement. Despite McLean’s curing

his deficiencies, the majority now denies McLean’s motion for rehearing.

Plainly, Chapter 14 now applies to appeals and original proceedings. TEX. CIV.

PRAC. & REM. CODE ANN. § 14.002(a) (West Supp. 2014); Douglas v. Turner, 441 S.W.3d

337, 338 (Tex. App.—Waco 2013, no pet.). But until now, we have been consistently

allowing inmates to cure their Chapter 14 deficiencies on rehearing and granting their

motions for rehearing after, as we had in this case, essentially invited them to do so.1

E.g., Atkins v. Herrera, No. 10-13-00283-CV (Tex. App.—Waco Feb. 6, 2014, order) (not

designated for publication); Keeter v. State, No. 10-13-00310-CV (Tex. App.—Waco Mar.

13, 2014, order) (not designated for publication); Mahuron v. TDCJ, No. 10-14-00116-CV

(Tex. App.—Waco Aug. 14, 2014, order) (not designated for publication); see also Reed v.

Ford, No. 10-13-00279-CV, 2013 WL 5290112, at *2, n.2 (Tex. App.—Waco Sept. 19, 2013,

no pet.) (including same footnote with deadline for motion for rehearing).

1 I now believe that the correct and the more judicially efficient practice would be to notify the appellant of the section 14.004 deficiency and allow the appellant an opportunity to cure before dismissal. See TEX. R. APP. P. 44.3; Higgins v. Randall County Sheriff's Office, 193 S.W.3d 898 (Tex. 2006); Verburgt v. Dorner, 959 S.W.2d 615, 616-17 (Tex. 1997).

McLean v. Livingston Page 2 Moreover, in the trial court, an inmate can correct a section 14.004 deficiency by

amendment on rehearing. See Brown v. Lubbock Cty. Comm’rs Ct., 185 S.W.3d 499, 503

(Tex. App.—Amarillo 2005, no pet.). Because the majority in this appeal denies McLean

the opportunity to correct his section 14.004 deficiency on rehearing, I respectfully

dissent to the denial of his motion for rehearing.

REX D. DAVIS Justice

Delivered and filed January 22, 2015

McLean v. Livingston Page 3