Gordon R. Simmonds v. Rex A. Corley

• Court: Court of Appeals of Texas
• Decided: May 14, 2015
• Docket: 10-15-00141-CV
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-15-00141-CV

GORDON R. SIMMONDS, Appellant v.

REX A. CORLEY, ET AL, Appellee

From the 12th District Court Walker County, Texas Trial Court No. 23,344

MEMORANDUM OPINION

Appellant Gordon R. Simmonds, a state-prison inmate, appeals from a summary

judgment. 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. 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.).

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. CODE ANN. § 14.004(a), (c) (West Supp. 2014).

The statement must “reflect the balance of the account at the time the claim is filed and

activity in the account during the six months preceding the date on which the claim is

filed.” Id. § 14.006(f) (West 2002).

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, -

-- S.W.3d ---, ---, 2015 WL 525150, at *1-2 (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, Simmonds did not file an affidavit or declaration “relating to

previous filings” or a certified copy of his inmate account statement with his notice of

appeal. We thus dismiss as frivolous this appeal. Id. (dismissing appeal without notice).

PER CURIAM

Simmonds v. Corley Page 2 Before Chief Justice Gray, Justice Davis, and Justice Scoggins (Justice Davis dissents with a note)* Dismissed Opinion delivered and filed May 14, 2015 [CV06]

*(Justice Davis notes that he would notify Simmonds of his section 14.004 deficiencies and allow him the opportunity to cure them before dismissal. See McLean, -- - S.W.3d at ---, 2015 WL 525150, at *3-5 (Davis, J., dissenting); see also Anderson, --- S.W.3d at ---, 2015 WL 1570170, at *3 (Davis, J., dissenting).)

Simmonds v. Corley Page 3