Ex Parte N.C.

• Court: Court of Appeals of Texas
• Decided: January 23, 2015
• Docket: 10-14-00102-CV
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-14-00102-CV

EX PARTE N.C.

From the 12th District Court Walker County, Texas Trial Court No. 26744

DISSENTING OPINION ON REHEARING

In a memorandum opinion, we dismissed the appeal of Appellant, 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. Ex parte N.C., No. 10-14-00102-CV, 2014 WL 2810632 (Tex. App.—Waco June

19, 2014, no pet. h.); TEX. CIV. PRAC. & REM. CODE ANN. § 14.004(a), (c) (West Supp. 2014)

(requiring inmate proceeding as an indigent 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 Appellant to file a motion for rehearing,

essentially inviting him to cure his deficiencies so that his appeal might be reinstated. N.C., 2014 WL 2810632, at *1, n.1. Appellant filed a motion for rehearing and asked that

we allow him thirty days to file a declaration “relating to previous filings.”

At the Court’s direction, the Clerk of the Court notified Appellant by letter that

unless he filed an affidavit or declaration of previous filings within thirty days, his

motion for rehearing would be denied. Appellant timely filed his declaration of

previous filings, but it was not accompanied by a certified copy of his inmate account

statement. The Clerk of the Court, again at the Court’s direction, then notified

Appellant that unless he filed a certified copy of his inmate account statement within

twenty-one days, his motion for rehearing would be denied. Appellant timely filed a

certified copy of his inmate account statement.

After the Court has thrice invited Appellant to cure his section 14.004

deficiencies, the majority now denies his motion for rehearing. I respectfully dissent.

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

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).

Ex parte N.C. Page 2 (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).

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

Appellant 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

Ex parte N.C. Page 3