Michael McGoldrick, Tdcj 1410959 v. Trina Velasquez

• Court: Court of Appeals of Texas
• Decided: July 25, 2013
• Docket: 13-12-00766-CV
• Status: Published

Opinion

NUMBER 13-12-00766-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

MICHAEL McGOLDRICK, TDCJ # 1410959, Appellant,

v.

TRINA VELASQUEZ, ET AL., Appellees.

On appeal from the 156th District Court of Bee County, Texas.

MEMORANDUM OPINION Before Justices Rodriguez, Benavides and Longoria Memorandum Opinion by Justice Benavides

In this inmate litigation appeal, appellant Michael McGoldrick challenges the trial

court’s dismissal of his suit in one issue. We affirm. I. BACKGROUND

McGoldrick is a prisoner at the McConnell Unit in Beeville, Texas. Acting pro se,

McGoldrick filed suit against officers of the Texas Department of Criminal Justice for:

(1) official oppression; (2) retaliation; (3) conspiracy to commit theft; and (4) theft of

property. Additionally, McGoldrick filed a Declaration of Inability to Pay Court Costs and

requested leave from the trial court to proceed in forma pauperis. Prior to service of the

named defendants, the trial court ordered the Texas Attorney General’s Office to file an

amicus curiae advisory regarding whether McGoldrick had complied with the relevant

provisions under chapter 14 of the Texas Civil Practice and Remedies Code.

The Attorney General’s Office filed an advisory in the trial court which asserted

that McGoldrick: (1) made a false allegation of poverty; (2) failed to comply with the

requirements set forth in section 14.005(a)(1) of the civil practice and remedies code;

and (3) made frivolous claims. On November 26, 2012, the trial court dismissed

McGoldrick’s claims. This appeal ensued.

II. ANALYSIS

By one issue, McGoldrick asserts that the trial court erred by dismissing his

lawsuit.

A. Standard of Review and Applicable Law

We review a dismissal order under chapter 14 of the civil practice and remedies

code for an abuse of discretion. Hickson v. Moya, 926 S.W.2d 397, 398 (Tex.

App.—Waco 1996, no pet.). A trial court abuses its discretion when it acts arbitrarily,

2 unreasonably, or without reference to any guiding rules and principles. Downer v.

Aquamarine Ops., Inc., 701 S.W.2d 238, 241–42 (Tex. 1985).

Under chapter 14, a trial court may dismiss a claim filed by an inmate, either

before or after service of process, if it finds:

(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) (West 2002). Finally, because the trial

court did not specify the grounds for dismissal, we will affirm the decision if any theory is

meritorious. See Walker v. Gonzales County Sheriff’s Dep’t, 35 S.W.3d 157, 162 (Tex.

App.—Corpus Christi 2000, pet. denied).

B. Discussion

We first examine whether the trial court abused its discretion for dismissing

McGoldrick’s claims under section 14.003(a)(1). McGoldrick filed an unsworn

declaration of inability to pay court costs. In the declaration, McGoldrick asserted that

he received “$50.00 per month as gifts from relatives and friends.” McGoldrick also

filed a certified copy of his inmate trust account, which shows the following monthly

deposits:

 July 2011: $153.00

 August 2011: $50.42

 September 2011: $50.00

 October 2011: $50.00

3  November 2011: $50.00

 December 2011: $100.00

McGoldrick’s average balance between July 2011 and December 2011 was

$36.18 and his total deposits over the last six months equaled $453.42. The account

also shows that McGoldrick held balances over the last six months of $50.13 to $100.00.

Accordingly, because McGoldrick’s allegation of poverty was false, and the trial court

had sufficient evidence to support this ruling, we conclude that the trial court did not

abuse its discretion in dismissing McGoldrick’s lawsuit. See McClain v. Terry, 320

S.W.3d 394, 397 (Tex. App.—El Paso 2010, no writ) (“A prisoner . . . who has no money

or property is considered indigent . . . . [While] an inmate who has funds in his trust

account is not indigent.”); see also McCullough v. Dretke, No. 02-07-294-CV, 2008 WL

4180365, at *3 (Tex. App.—Fort Worth Sept. 11, 2008, no pet.) (mem. op.).

McGoldrick’s sole issue is overruled.

III. CONCLUSION

We affirm the trial court’s order of dismissal.

__________________________ GINA M. BENAVIDES, Justice

Delivered and filed the 25th day of July, 2013.