Kish D. Powell v. State

• Court: Court of Appeals of Texas
• Decided: March 5, 2015
• Docket: 09-14-00446-CV
• Status: Published

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-14-00446-CV ____________________

KISH D. POWELL, Appellant

V.

THE STATE OF TEXAS, Appellee _______________________________________________________ ______________

On Appeal from the 58th District Court Jefferson County, Texas Trial Cause No. A-196,131 ________________________________________________________ _____________

MEMORANDUM OPINION

Kish D. Powell filed a suit against the State of Texas for a declaratory

judgment of inability to pay property taxes and for injunctive relief. Before service

of process, the trial court dismissed the case as frivolous and for failure to comply

with the procedural requirements that apply to litigation filed without payment of

costs by persons incarcerated in the Texas Department of Criminal Justice. See

Tex. Civ. Prac. & Rem. Code Ann. § 14.003 (West 2002).

Powell requested appointment of counsel to represent him in this appeal. An

appellate court cannot order a district court to appoint counsel to represent an

1 indigent litigant in the absence of exceptional circumstances. See Gibson v.

Tolbert, 102 S.W.3d 710, 713 (Tex. 2003). No exceptional circumstances are

present in this case.

Powell cites several constitutional and statutory provisions in his brief for

the appeal. See generally Tex. Const. art. XVI, § 52 (descent and distribution of

homestead); Tex. Tax Code Ann. §§ 11.13(j) (residence homestead), 33.02

(installment payment of delinquent taxes), 42.08 (forfeiture of remedy for

nonpayment of taxes) (West Supp. 2014). Powell assigns no error in his brief, nor

does he provide this Court with argument explaining why the laws cited in the

brief support his pursuit of a declaratory judgment action in district court. See Tex.

R. App. P. 38.1(f), (i).

In correspondence this Court received on January 15, 2015, Powell states, “I

am notifying the Ninth District Court [of Appeals] that the appellant[’]s appeal in

the above number be recalled. I have correctly file[d] this matter with the Jefferson

County Probate Court under Cause #111677.” Powell may have intended to

dismiss this appeal because a probate proceeding has been filed in the County

Court of Jefferson County. See generally Tex. R. App. P. 42.1. We may dismiss an

appeal or affirm the appealed judgment or order, if the appellant requests it and

disposition will not prevent a party from seeking relief to which he is otherwise

entitled. Id.

2 When an inmate files a suit without payment of costs, the trial court’s

dismissal of the suit for failure to comply with the affidavit or unsworn declaration

requirements is not a dismissal on the merits and is, therefore, generally a dismissal

without prejudice. See In re Douglas, 333 S.W.3d 273, 293 (Tex. App.—Houston

[1st Dist.] 2010, pet. denied). A dismissal without prejudice, such as the order at

issue in this case, does not carry the full effects of res judicata and collateral

estoppel that result from a dismissal with prejudice. See Hickman v. Adams, 35

S.W.3d 120, 124 (Tex. App.—Houston [14th Dist.] 2000, no pet.). No reversible

error has been established by appellant’s brief and the clerk’s record. See Tex. R.

App. P. 44.1. We affirm the trial court’s order of dismissal without prejudice.

AFFIRMED.

________________________________ CHARLES KREGER Justice

Submitted on February 12, 2015 Opinion Delivered March 5, 2015

Before Kreger, Horton, and Johnson, JJ.