Salvador Zavala v. Janet D. Salles

Opinion

NUMBER 13-18-00201-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

SALVADOR ZAVALA, Appellant,

v.

JANET D. SALLES, ET AL., Appellees.

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

MEMORANDUM OPINION Before Chief Justice Contreras and Justices Benavides and Longoria Memorandum Opinion by Justice Longoria

Appellant Salvador Zavala is an inmate housed in the Texas Department of

Criminal Justice—Institutional Division (TDCJ—ID) in the McConnell Unit in Beeville,

Texas. Zavala brought suit pro se and in forma pauperis for conversion against multiple

defendants employed by TDCJ—ID. The trial court dismissed Zavala’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. Zavala argues that: (1) the trial court

improperly dismissed his claims with prejudice and (2) the associate judge did not have

authority to rule on the case because an objection was filed. We affirm.

I. BACKGROUND

On October 10, 2017, Zavala filed a complaint regarding an incident where he

alleged that a letter he attempted to send to the United Kingdom, containing a twenty-

dollar bill, was wrongfully confiscated by appellees Janet Salles, Jennifer Smith, and

Sharon Ruiz, employees of TDCJ—ID.

On September 11, 2017, the presiding Judge of the 4th Administrative Judicial

Region, pursuant to Texas Government Code Chapter 74, assigned Judge Joel Johnson

to preside in the 156th District Court. On November 16, 2017, Zavala was sent a “notice

of assignment” which notified him of the appointment of Judge Johnson to his case.

On January 8, 2018, the Office of the Attorney General filed an amicus curiae

motion to dismiss. On March 26, 2018, the trial court dismissed this case for failure to

comply with Chapter 14 of the Texas Civil Practice and Remedies Code. This appeal

followed.

II. DISCUSSION

In his first issue, Zavala argues that the trial court abused its discretion by

dismissing his claim.

A. Applicable Law and Standard of Review

We review a trial court’s dismissal under Chapter 14 for an abuse of discretion.

See Moreland v. Johnson, 95 S.W.3d 392, 394 (Tex. App.—Houston [1st Dist.] 2002, no

2 pet.); Jackson v. Tex. Dep’t of Crim. Justice—Inst. Div., 28 S.W.3d 811, 813 (Tex. App.—

Corpus Christi–Edinburg 2000, pet. denied). A trial court abuses its discretion if it acts

arbitrarily, capriciously, and without reference to any guiding principles or rules. Brewer

v. Collins, 857 S.W.2d 819, 822 (Tex. App.—Houston [1st Dist.] 1993, no writ); see Clark

v. J.W. Estelle Unit, 23 S.W.3d 420, 421 (Tex. App.—Houston [1st Dist.] 2000, pet.

denied).

Chapter 14 of the Texas Civil Practice and Remedies Code governs lawsuits

brought by an inmate in which the inmate has filed an affidavit or unsworn declaration of

inability to pay costs. See TEX. CIV. PRAC. & REM. CODE ANN. § 14.002(a); Donaldson v.

Tex. Dep’t of Crim. Justice—Corr. Insts. Div., 355 S.W.3d 722, 724 (Tex. App.—Tyler

2011, pet. denied); In re Simmonds, 271 S.W.3d 874, 876 (Tex. App.—Waco 2008, orig.

proceeding). An inmate who seeks to file a suit under Chapter 14 must: (1) file an affidavit

or unsworn declaration detailing all prior pro se lawsuits filed by the inmate; (2) an

affidavit or unsworn declaration stating the date the grievance was filed and the date the

written decision was received by the inmate; and (3) a certified copy of the inmate’s trust

account statement, reflecting the balance of the account at the time the claim was filed

and activity in the account during the six months preceding the date the claim is filed.

See TEX. CIV. PRAC. & REM. CODE ANN. §§ 14.004(a)(1), 14.005(a)(1), 14.006(f).

A trial court may dismiss an inmate’s claim, either before or after service of

process, on any number of grounds, including an inmate’s failure to comply with the

procedural requirements. See id. §§ 14.003–.006; Scott v. Gallagher, 209 S.W.3d 262,

265 (Tex. App.—Houston [1st Dist.] 2006, no pet.). Additionally, a trial court has the

discretion to dismiss an inmate’s lawsuit if the allegation of poverty in the indigence

3 affidavit is false. TEX. CIV. PRAC. & REM. CODE ANN. § 14.003(a)(1). The trial courts are

given broad discretion to determine whether a suit brought by an inmate should be

dismissed because: (1) prisoners have a strong incentive to litigate; (2) the government

bears the costs of an in forma pauperis suit; (3) sanctions are not effective; and (4) the

dismissal of unmeritorious claims accrues to the benefit of state officials, courts, and

meritorious claimants. See Montana v. Patterson, 894 S.W.2d 812, 814–15 (Tex. App.—

Tyler 1994, no writ).

As noted, to enable the trial court to determine whether an inmate is indigent, the

inmate is required to file a certified copy of his inmate trust account “reflect[ing] 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.” TEX. CIV. PRAC. & REM. CODE

ANN. § 14.006(f). “A prisoner at a Texas Department of Criminal Justice facility who has

no money or property is considered indigent.” Donaldson, 355 S.W.3d at 725; McClain

v. Terry, 320 S.W.3d 394, 397 (Tex. App.—El Paso 2010, no pet.). “However, ‘[a]n inmate

who has funds in his trust account is not indigent.’” Donaldson, 355 S.W.3d at 725

(quoting McClain, 320 S.W.3d at 397); but see Leachman v. Stephens, No. 02-13-00357-

CV, 2016 WL 6648747, at *12 (Tex. App.—Fort Worth Nov. 10, 2016, pet. denied) (mem.

op.) (noting that “[c]omplete destitution is not a prerequisite to establishing indigence” and

rejecting appellees’ argument that “only inmates with no money are considered indigent”).

B. Chapter 14 Dismissal

A trial court does not abuse its discretion in dismissing a suit when the plaintiff

makes a false allegation of poverty. See McClain, 320 S.W.3d at 397. In this case,

Zavala’s account statement shows total deposits of $660.00 during the six months

4 preceding the date on which his claim was filed, a six-month average balance of $91.82,

and a six-month average of monthly deposits of $110.00, with a final balance of $5.14 at

the time the suit was filed. Accordingly, because Zavala had funds in his trust account,

the trial court did not abuse its discretion in dismissing his lawsuit on the basis that his

indigence affidavit contained a false statement of poverty. See Donaldson, 355 S.W.3d

at 725 (holding no abuse of discretion in dismissing inmate claim for false allegation of

poverty where average monthly balance was $63.42 and deposits in six-month period

totaled $1,020.00); McClain, 320 S.W.3d at 398 (holding same where account had a then-

current balance of $103.92 and a six-month average balance of $184.92); see also Zavala

v. Matthew, No. 13-17-00009-CV, 2018 WL 286257, at *2 (Tex. App.—Corpus Christi–

Edinburg Jan. 4, 2018, pet. denied) (mem. op.) (holding same where account had zero

balance as of date of account statement, but six-month average balance was $33 and

six-month average monthly deposits were $75.33).

Additionally, under Chapter 14, a trial court may dismiss a claim by an inmate if

the court finds the claim to be frivolous or malicious. See TEX. CIV. PRAC. & REM. CODE

ANN. § 14.003(a)(2). An inmate who files a lawsuit under Chapter 14 must file an affidavit

or declaration that satisfies the requirements of § 14.004. Id. § 14.004. Pursuant to

§ 14.004, an inmate must file an affidavit or declaration “identifying each action, other

than an action under the Family Code, previously brought by the person and in which the

person was not represented by an attorney, without regard to whether the person was an

inmate at the time the action was brought” and “describing each action that was previously

brought.” Id. This declaration assists the trial court in determining whether a suit is

malicious or frivolous. Gowan v. Tex. Dep’t of Crim. Justice, 99 S.W.3d 319, 321 (Tex.

5 App.—Texarkana 2003, no pet.). When an inmate does not comply with the requirements

of § 14.004, the trial court is entitled to assume that the suit is substantially similar to one

previously filed by the inmate and, therefore frivolous. See Clark, 23 S.W.3d at 422; Bell

v. Tex. Dep’t of Crim. Justice—Inst.l Div., 962 S.W.2d 156, 158 (Tex. App.—Houston

[14th Dist.] 1998, pet. denied).

While Zavala did file a declaration of previously filed lawsuits, he failed to identify

and describe five additional previously filed lawsuits. The purpose of Chapter 14 is to

curb often duplicative inmate litigation by requiring inmates filing lawsuits to notify the

court of previous litigation and the outcome. Hickman v. Adams, 35 S.W.3d 120, 123

(Tex. App.—Houston [14th Dist.] 2000, no pet.). The Office of the Attorney General, in

its amicus curiae motion to dismiss, notified the court that Zavala omitted several

previously filed lawsuits. Accordingly, the trial court did not err in dismissing Zavala’s suit

as frivolous under § 14.003 because his affidavit relating to previous filings was

inadequate. See Rodarte v. Beneficial Tex., Inc., 482 S.W.3d 246, 248 (Tex. App.—San

Antonio 2015, pet. denied) (concluding that the underlying case was frivolous and

properly dismissed because inmate failed to provide a complete affidavit of previous

filings); Thompson v. Rodriguez, 99 S.W.3d 328, 330 (Tex. App.—Texarkana 2003, no

pet.) (concluding that because the inmate’s affidavit of previous filings was not sufficient

to comply with § 14.004, the trial court was within its discretion to dismiss inmate’s suit).

We overrule Zavala’s first issue.

C. Objection to an Associate Judge

In Zavala’s second issue, he contends that the judge assigned to the case should

have been disqualified because he filed a timely objection to the appointment. See TEX.

6 GOV’T CODE ANN. § 74.053 (“If a party to a civil case files a timely objection to the

assignment, the judge shall not hear the case.”). Once a party files a timely objection to

an assigned associate judge, the judge is automatically disqualified as a matter of law,

even if the judge is unaware of the objection. See id.; In re Canales, 52 S.W.3d 698, 701

(Tex. 2001) (orig. proceeding); see also In re M.A.S., No. 05-03-00401-CV, 2005 WL

1039967, at *2 (Tex. App.—Dallas May 5, 2005, no pet.) (mem. op.).

However, Judge Johnson, assigned by the 4th Administrative Judicial Region, was

not an associate judge, but rather an assigned senior judge. The distinction is that

associate judges are appointed by a judge of a court to perform duties authorized by

Chapter 54A of the Texas Government Code and, on the other hand, assigned judges

are active, retired, or senior judges that are assigned to a court by the administrative

judge of the judicial region pursuant to Chapter 74 of the Texas Government Code. TEX.

GOV’T CODE ANN. §§ 54A.102, 74.045, 74.052.

The objection which Zavala relies on was contained in his original complaint, which

was filed a month before the assignment of Senior Judge Johnson to the case. Chapter

74 of the Texas Government Code mandates that objections to an assigned judge must

be filed after the assignment of a judge to whom a party objects. See TEX. GOV’T CODE

ANN. § 74.053(c) (“An objection under this section must be filed not later than the seventh

day after the date the party receives actual notice of the assignment or before the date

the first hearing or trial, including pretrial hearings, commences, whichever date occurs

earlier.”) (emphasis added). On October 10, 2017, when Zavala filed his original

complaint, there was no associate judge or judge assigned to his case; therefore, at that

time, he did not have a right to object to the assignment.

7 Furthermore, once Judge Johnson had been assigned to the case, nothing in the

record indicates that Zavala objected to the appointment. A party waives an objection

when it participates in a proceeding without advising the assigned judge that an objection

was filed. See In re Approximately $17,239.00, 129 S.W.3d 167, 168 (Tex. App.—

Houston [14th Dist.] 2003, no pet.) (holding that the party waived its objection to

assignment of trial judge by failing to inform the judge of the objection that was timely

filed); Tex. Emp’t Comm’n v. Alvarez, 915 S.W.2d 161, 163 (Tex. App.—Corpus Christi–

Edinburg 1996, no writ) (stating that an objection to the judge was not effective because

it failed to specify the name of the judge and the party proceeded to trial without

mentioning the objection). Zavala has not demonstrated that he filed and presented his

objection to the appointment of Senior Judge Johnson. Therefore, Zavala has failed to

preserve this issue for appeal. See TEX. R. APP. P. 33.1. We overrule Zavala’s second

issue.

III. CONCLUSION

We affirm the trial court’s judgment.

NORA L. LONGORIA Justice Delivered and filed the 3rd day of July, 2019.