NUMBER 13-19-00203-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
MICHAEL MCCANN, TDCJ NO. 879919, Appellant,
v.
TDCJ-CID, ET AL., Appellees.
On appeal from the 343rd District Court of Bee County, Texas.
MEMORANDUM OPINION Before Chief Justice Contreras and Justices Longoria and Perkes Memorandum Opinion by Justice Longoria
Appellant Michael McCann is an inmate housed in the McConnell Unit of the Texas
Department of Criminal Justice—Institutional Division (TDCJ—ID). McCann brought suit
pro se and in forma pauperis against appellees TDCJ—ID, and Laurie Davis and Philip
Sifuentes, employees of TDCJ—ID. The trial court dismissed McCann’s claims with prejudice pursuant to Chapter 14 of the Texas Civil Practice and Remedies Code, see
TEX. CIV. PRAC. & REM. CODE ANN. §§ 14.001–.014, and declared McCann a vexatious
litigant subject to a prefiling order requirement, see id. § 11.101. McCann contends that
the trial court erred in dismissing his claims. We affirm.
I. BACKGROUND
McCann filed his original complaint against appellees on November 14, 2018,
alleging claims pursuant to 42 U.S.C. § 1983. Specifically, he asserted that he was
denied his right to marry in violation of the First and Fourteenth Amendments and that his
right to marry was impermissibly burdened by TDCJ—ID’s marriage policy. In his
complaint, McCann alleged that he was denied marriage to Diane Miskell, a female
inmate in the custody of the Texas Department of Criminal Justice at the Carol Young
Medical Complex. He claims that a prison official told him he could not marry because
he was still married with no divorce on record and the decision to deny his marriage was
made in retaliation against McCann for his previous lawsuits. McCann argued that he
completed all of the necessary requirements to marry Miskell.
On January 9, 2019, appellees, through the Office of the Attorney General (OAG),
filed their original answer and on January 11, 2019, they filed their motion to declare
McCann a vexatious litigant pursuant to Chapter 11 of the civil practice and remedies
code. See id. Appellees also filed a motion for a prefiling order and a motion for dismissal
under Chapter 14 of the civil practice and remedies code. See id. § 14.003. McCann
filed his response and a motion for sanctions against appellees. The trial court held a
telephonic hearing where both parties appeared. The trial court declared McCann a
vexatious litigant subject to a prefiling order, prohibited him from filing any new litigation
2 in a court of this state without first obtaining permission from a local administrative judge,
and dismissed McCann’s claims with prejudice pursuant to Chapter 14. See id. §§
11.101, 14.003. This appeal followed.
II. CHAPTER 14
In his first issue, McCann argues that the trial court abused its discretion by
dismissing his claims under Chapter 14 because his claim was cognizable by law.
A. Standard of Review and Applicable Law
When reviewing a dismissal order under Chapter 14 of the civil practice and
remedies code, the standard of review on appeal is for abuse of discretion. Hickson v.
Moya, 926 S.W.2d 397, 398 (Tex. App.—Waco 1996, no writ). The trial court abuses its
discretion if it acts without reference to any guiding legal principles. Id.
The trial court has broad discretion to dismiss a lawsuit brought under Chapter 14
as frivolous or malicious. TEX. CIV. PRAC. & REM. CODE ANN. § 14.003(a)(2); Jackson v.
Tex. Dep’t of Crim. Justice—Institutional Div., 28 S.W.3d 811, 813 (Tex. App.—Corpus
Christi–Edinburg 2000, pet. denied); Lentworth v. Trahan, 981 S.W.2d 720, 722 (Tex.
App.—Houston [1st Dist.] 1998, no pet). Chapter 14 provides in relevant part:
(a) A court may dismiss a claim, either before or after service of process, if the court finds that:
(1) the allegation of poverty in the affidavit or unsworn declaration is false;
(2) the claim is frivolous or malicious; or
(3) the inmate filed an affidavit or unsworn declaration required by this chapter that the inmate knew was false.
TEX. CIV. PRAC. & REM. CODE ANN. § 14.003(a). Furthermore, the trial court has the
discretion to dismiss a claim under Chapter 14 if it finds that it is frivolous:
3 In determining whether a claim is frivolous or malicious, the trial court may consider whether: (1) the claim’s realistic chance of ultimate success is slight; (2) the claim has no arguable basis in law or fact; (3) it is clear that the party cannot prove facts in support of the claim; or (4) the claim is substantially similar to a previous claim filed by the inmate because the claim arises from the same operative facts.
Id. § 14.003(b).
B. Analysis
McCann argues that the trial court erred in dismissing his claims because his
claims are “cognizable by law.” He does not address all of the bases for dismissal alleged
by the OAG in its motion to dismiss filed in the trial court, including that his declaration of
previously filed lawsuits was incomplete. See id. § 14.004(a)(2) (“An inmate who files an
affidavit or unsworn declaration of inability to pay costs shall file a separate affidavit or
declaration: . . . describing each action that was previously brought . . .”). Additionally,
in the issues he does address, McCann has not adequately briefed his argument for why
the potential bases for the trial court’s dismissal was erroneous. See TEX. R. APP. P.
31.1(i) (requiring an appellant’s brief to “contain a clear and concise argument for the
contentions made, with appropriate citations to authorities and to the record”); see also
McCann v. Moore, No. 13-18-00107-CV, 2019 WL 2622335, at *2 (Tex. App.—Corpus
Christi–Edinburg June 27, 2019, no pet.) (mem. op.). McCann has not shown or
explained how the trial court abused its broad discretion to dismiss his cause of action as
frivolous in light of the four factors listed in Chapter 14. See TEX. CIV. PRAC. & REM. CODE
ANN. § 14.003(b); Jackson, 28 S.W.3d at 813. Therefore, we conclude that the trial court
did not err by dismissing McCann’s claims as frivolous for failure to comply with Chapter
14. McCann’s first issue is overruled.
III. CHAPTER 11
4 In his second issue, McCann argues that the evidence was legally insufficient to
support the trial court’s order declaring him a vexatious litigant.
We apply the abuse of discretion standard when reviewing a trial court’s
determinations under Chapter 11. Scott v. Mireles, 294. S.W.3d 306, 308 (Tex. App.—
Corpus Christi–Edinburg 2009, no pet.). The test for an abuse of discretion is whether
the court acted arbitrarily or unreasonably and without reference to any guiding rules and
principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985).
Under Texas Civil Practice and Remedies Code § 11.051, a defendant may, on or
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NUMBER 13-19-00203-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
MICHAEL MCCANN, TDCJ NO. 879919, Appellant,
v.
TDCJ-CID, ET AL., Appellees.
On appeal from the 343rd District Court of Bee County, Texas.
MEMORANDUM OPINION Before Chief Justice Contreras and Justices Longoria and Perkes Memorandum Opinion by Justice Longoria
Appellant Michael McCann is an inmate housed in the McConnell Unit of the Texas
Department of Criminal Justice—Institutional Division (TDCJ—ID). McCann brought suit
pro se and in forma pauperis against appellees TDCJ—ID, and Laurie Davis and Philip
Sifuentes, employees of TDCJ—ID. The trial court dismissed McCann’s claims with prejudice pursuant to Chapter 14 of the Texas Civil Practice and Remedies Code, see
TEX. CIV. PRAC. & REM. CODE ANN. §§ 14.001–.014, and declared McCann a vexatious
litigant subject to a prefiling order requirement, see id. § 11.101. McCann contends that
the trial court erred in dismissing his claims. We affirm.
I. BACKGROUND
McCann filed his original complaint against appellees on November 14, 2018,
alleging claims pursuant to 42 U.S.C. § 1983. Specifically, he asserted that he was
denied his right to marry in violation of the First and Fourteenth Amendments and that his
right to marry was impermissibly burdened by TDCJ—ID’s marriage policy. In his
complaint, McCann alleged that he was denied marriage to Diane Miskell, a female
inmate in the custody of the Texas Department of Criminal Justice at the Carol Young
Medical Complex. He claims that a prison official told him he could not marry because
he was still married with no divorce on record and the decision to deny his marriage was
made in retaliation against McCann for his previous lawsuits. McCann argued that he
completed all of the necessary requirements to marry Miskell.
On January 9, 2019, appellees, through the Office of the Attorney General (OAG),
filed their original answer and on January 11, 2019, they filed their motion to declare
McCann a vexatious litigant pursuant to Chapter 11 of the civil practice and remedies
code. See id. Appellees also filed a motion for a prefiling order and a motion for dismissal
under Chapter 14 of the civil practice and remedies code. See id. § 14.003. McCann
filed his response and a motion for sanctions against appellees. The trial court held a
telephonic hearing where both parties appeared. The trial court declared McCann a
vexatious litigant subject to a prefiling order, prohibited him from filing any new litigation
2 in a court of this state without first obtaining permission from a local administrative judge,
and dismissed McCann’s claims with prejudice pursuant to Chapter 14. See id. §§
11.101, 14.003. This appeal followed.
II. CHAPTER 14
In his first issue, McCann argues that the trial court abused its discretion by
dismissing his claims under Chapter 14 because his claim was cognizable by law.
A. Standard of Review and Applicable Law
When reviewing a dismissal order under Chapter 14 of the civil practice and
remedies code, the standard of review on appeal is for abuse of discretion. Hickson v.
Moya, 926 S.W.2d 397, 398 (Tex. App.—Waco 1996, no writ). The trial court abuses its
discretion if it acts without reference to any guiding legal principles. Id.
The trial court has broad discretion to dismiss a lawsuit brought under Chapter 14
as frivolous or malicious. TEX. CIV. PRAC. & REM. CODE ANN. § 14.003(a)(2); Jackson v.
Tex. Dep’t of Crim. Justice—Institutional Div., 28 S.W.3d 811, 813 (Tex. App.—Corpus
Christi–Edinburg 2000, pet. denied); Lentworth v. Trahan, 981 S.W.2d 720, 722 (Tex.
App.—Houston [1st Dist.] 1998, no pet). Chapter 14 provides in relevant part:
(a) A court may dismiss a claim, either before or after service of process, if the court finds that:
(1) the allegation of poverty in the affidavit or unsworn declaration is false;
(2) the claim is frivolous or malicious; or
(3) the inmate filed an affidavit or unsworn declaration required by this chapter that the inmate knew was false.
TEX. CIV. PRAC. & REM. CODE ANN. § 14.003(a). Furthermore, the trial court has the
discretion to dismiss a claim under Chapter 14 if it finds that it is frivolous:
3 In determining whether a claim is frivolous or malicious, the trial court may consider whether: (1) the claim’s realistic chance of ultimate success is slight; (2) the claim has no arguable basis in law or fact; (3) it is clear that the party cannot prove facts in support of the claim; or (4) the claim is substantially similar to a previous claim filed by the inmate because the claim arises from the same operative facts.
Id. § 14.003(b).
B. Analysis
McCann argues that the trial court erred in dismissing his claims because his
claims are “cognizable by law.” He does not address all of the bases for dismissal alleged
by the OAG in its motion to dismiss filed in the trial court, including that his declaration of
previously filed lawsuits was incomplete. See id. § 14.004(a)(2) (“An inmate who files an
affidavit or unsworn declaration of inability to pay costs shall file a separate affidavit or
declaration: . . . describing each action that was previously brought . . .”). Additionally,
in the issues he does address, McCann has not adequately briefed his argument for why
the potential bases for the trial court’s dismissal was erroneous. See TEX. R. APP. P.
31.1(i) (requiring an appellant’s brief to “contain a clear and concise argument for the
contentions made, with appropriate citations to authorities and to the record”); see also
McCann v. Moore, No. 13-18-00107-CV, 2019 WL 2622335, at *2 (Tex. App.—Corpus
Christi–Edinburg June 27, 2019, no pet.) (mem. op.). McCann has not shown or
explained how the trial court abused its broad discretion to dismiss his cause of action as
frivolous in light of the four factors listed in Chapter 14. See TEX. CIV. PRAC. & REM. CODE
ANN. § 14.003(b); Jackson, 28 S.W.3d at 813. Therefore, we conclude that the trial court
did not err by dismissing McCann’s claims as frivolous for failure to comply with Chapter
14. McCann’s first issue is overruled.
III. CHAPTER 11
4 In his second issue, McCann argues that the evidence was legally insufficient to
support the trial court’s order declaring him a vexatious litigant.
We apply the abuse of discretion standard when reviewing a trial court’s
determinations under Chapter 11. Scott v. Mireles, 294. S.W.3d 306, 308 (Tex. App.—
Corpus Christi–Edinburg 2009, no pet.). The test for an abuse of discretion is whether
the court acted arbitrarily or unreasonably and without reference to any guiding rules and
principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985).
Under Texas Civil Practice and Remedies Code § 11.051, a defendant may, on or
before the 90th day after the date the defendant files its original answer, move the court
for an order determining that the plaintiff is a vexatious litigant and requiring the plaintiff
to furnish security. TEX. CIV. PRAC. & REM. CODE ANN. § 11.051. Vexatious litigants are
persons who abuse the legal system by filing numerous, frivolous lawsuits. Jackson v.
Bell, 484 S.W.3d 161, 166 (Tex. App.—Amarillo 2015, no pet.); Drake v. Andrews, 294
S.W.3d 370, 373 (Tex. App.—Dallas 2009, pet. denied). A vexatious litigant
determination requires the defendant to demonstrate that there is not a reasonable
probability the plaintiff will prevail in the litigation against the defendant and that the
plaintiff, in the preceding seven-year period, commenced, prosecuted, or maintained as
a pro se litigant at least five litigations, other than in small claims court, that were finally
determined adversely to the plaintiff. TEX. CIV. PRAC. & REM. CODE ANN. § 11.054.
McCann’s appellate issue addresses only the first requirement of Chapter 11, that
his claim was likely to prevail in litigation. See id. Appellees alleged that there was no
5 reasonable probability that McCann would prevail in his litigation because his claims were
frivolous under Chapter 14. When an inmate fails to comply with the affidavit
requirements, the trial court may assume that the current action is substantially similar to
one previously filed by an inmate and thus is frivolous. Douglas v. Turner, 441 S.W.3d
337, 339 (Tex. App.—Waco 2013, no pet.). Accordingly, based on our analysis of
McCann’s first issue, and our finding that the trial court did not err in dismissing his claims
as frivolous pursuant to Chapter 14, we further find that the trial court rightly could have
determined that there was not a reasonable probability that McCann would prevail in the
litigation. See id.; Jackson, 484 S.W.3d 166–67. McCann’s second issue is overruled.
IV. CONCLUSION
The judgment of the trial court is affirmed.
NORA L. LONGORIA Justice Delivered and filed the 3rd day of October, 2019.