in Re Alvie Robinson

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-14-00153-CV

IN RE ALVIE ROBINSON

Original Proceeding

DISSENTING OPINION ON REHEARING

Alvie Robinson, a pro se inmate, sought mandamus relief in this original

proceeding because of the respondent trial judge’s alleged failure to timely rule on

Robinson’s motion for summary judgment in the underlying civil case. In a

memorandum opinion, we dismissed the petition for writ of mandamus because

Robinson had failed to comply with Chapter 14 by not filing an affidavit or declaration

“relating to previous filings.” In re Robinson, No. 10-14-00153-CV, 2014 WL 2720884

(Tex. App.—Waco June 12, 2014, orig. proceeding); TEX. CIV. PRAC. & REM. CODE ANN. §

14.004(a) (West Supp. 2014) (requiring inmate to file affidavit or declaration “relating to

previous filings”).

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

essentially inviting him to cure his deficiency so that his original proceeding might be reinstated. Robinson, 2014 WL 2720884, at *1, n.1. Robinson did just that; he filed a

motion for rehearing that included his declaration of previous filings. Despite

Robinson’s curing his deficiencies, the majority now denies his 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).

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 proceeding denies

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

respectfully dissent to the denial of his motion for rehearing.

1I now believe that the correct and the more judicially efficient practice would be to notify the appellant or relator of the section 14.004 deficiency and allow the appellant or relator 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).

In re Robinson Page 2 Furthermore, upon reinstatement of this proceeding, I would abate this

proceeding because the respondent trial court judge died while this proceeding was

pending; under Rule 7.2(b), the successor trial court judge must be allowed to

reconsider the original trial court judge’s decision. TEX. R. APP. P. 7.2(b); In re Whitfield,

134 S.W.3d 314 (Tex. App.—Waco 2003, order).

REX D. DAVIS Justice

Delivered and filed January 22, 2015

In re Robinson Page 3