Court of Appeals of Texas, Sixth District, Texarkana
Submitted: March 2, 2017
Appeal from the 336th District Court Fannin County, Texas
Trial Court No. CV-16-42887
Morriss, C.J., Moseley and Burgess, JJ.
R. Morriss III Chief Justice
Ellis Shirley filed suit against Tovi Butcher, Warden of the
Choice Moore Unit, and the Texas Department of Criminal
Justice (the Department), complaining that he has been
subjected to cruel and unusual punishment by them serving
only two meals on the weekends, rather than three. Shirley
also alleged that this action violated his civil rights and
equal protection and constituted a tort. He prayed for a
temporary injunction and money damages. To the original
petition, Shirley attached an unsworn declaration of
inability to pay costs. He did not, however, file an
affidavit relating to previous filings or a certified copy of
his inmate's trust account, as required by
See Tex. Civ. Prac. & Rem. Code Ann.
§§ 14.004, 14.006(f) (West 2017).
Butcher and the Department filed a motion to dismiss, the
trial court dismissed Shirley's suit as frivolous
pursuant to Chapter 14 of the Texas Civil Practice and
Remedies Code. On appeal, Shirley asserts that the trial
court erred in dismissing his appeal because (1) he had
stated a claim under the Eighth Amendment to the United
States Constitution and (2) Butcher does not have sovereign
immunity. We affirm the trial court's judgment.
dismissal under Chapter 14 of the Texas Civil Practice and
Remedies Code is reviewed for abuse of discretion.
Frey, 2014 WL 1004494, at *2-3. The trial court
abuses its discretion when it acts without reference to any
guiding rules and principles. Downer v. Aquamarine
Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).
Chapter 14 does not apply to an action under the Texas Family
Code, the chapter applies to any other action,
"including an appeal or original proceeding, brought by
an inmate in a district, county, justice of the peace, or
small claims court or an appellate court . . . in which an
affidavit or unsworn declaration of inability to pay costs is
filed by the inmate." Tex. Civ. Prac. & Rem. Code
Ann. § 14.002(a). Section 14.003 allows a court to
dismiss an inmate's action if the claims asserted are
frivolous or malicious. Frey, 2014 WL 1004494, at *2
(citing Tex. Civ. Prac. & Rem. Code Ann. §
14.003(a)(2) (West 2017)). To determine whether a claim is
frivolous, the court may consider, inter alia,
whether "(2) the claim has no arguable basis in law or
in fact; . . . [or] (4) the claim is substantially similar to
a previous claim filed by the inmate because the claim arises
from the same operative facts." Tex. Civ. Prac. &
Rem. Code Ann. § 14.003(b)(2), (4) (West 2017). To
assist a court in determining whether a suit is substantially
similar to a previous claim, Chapter 14 requires the inmate
to file an affidavit or unsworn declaration relating to
previous actions filed by the inmate. Frey, 2014 WL
1004494, at *2; Gowan v. Tex. Dep't of Criminal
Justice, 99 S.W.3d 319, 321 (Tex. App.-Texarkana 2003,
no pet.); see Tex. Civ. Prac. & Rem. Code Ann.
14.004 of the Texas Civil Practice and Remedies Code requires
the inmate to file an affidavit or unsworn declaration
identifying each action previously brought by the inmate in
which he or she was not represented by an attorney. Tex. Civ.
Prac. & Rem. Code Ann. § 14.004(a)(1). As to each
prior action, the affidavit or declaration must specify the
operative facts, style of the case, its cause number, the
court in which it was brought, the names of the parties, and
the result of the suit, including whether it was dismissed as
frivolous or malicious. Frey, 2014 WL 1004494, at
*2; See Tex. Civ. Prac. & Rem. Code Ann. §
14.004(a) (2). In addition, the affidavit or declaration must
be accompanied by a certified copy of the inmate's trust
account showing the balance at the time the action was filed
and any activity in the account for the previous six months.
Frey, 2014 WL 1004494, at *2; Tex. Civ. Prac. &
Rem. Code Ann. §§ 14.004(c), 14.006(f). "These
procedural prerequisites are designed 'to curb the
constant, often duplicative, inmate litigation, by requiring
the inmate to notify the trial court of previous litigation
and the outcome.'" Frey, 2014 WL 1004494,
at *2 (quoting Clark v. J.W. Estelle Unit, 23 S.W.3d
420, 422 (Tex. App-Houston [1st Dist] 2000, pet. denied)).
inmate fails to comply with the requirement of Section
14.004, a court may assume that the present action is
substantially similar to a previous one filed by the inmate.
Gowan, 99 S.W.3d at 322 (citing Clark, 23
S.W.3d at 422). Therefore, when an inmate fails to file the
affidavit or declaration required under Section 14.004(a), a
court may dismiss it as frivolous under Section 14.003(a).
Gowan, 99 S.W.3d at 321-22 (citing Thomas v.
Knight, 52 S.W.3d 292, 293 n.2 (Tex. App-Corpus Christi
2001, pet. denied)). Further, a court may dismiss an inmate
action if the inmate fails to attach a certified copy of his
trust account statement as required by Section 14.004(c).
Williams v. Brown, 33 S.W.3d 410, 412 (Tex.
App.-Houston [1st Dist.] 2000, no pet.).
Shirley's failure to comply with the procedural
requirements of Section 14.004 provides an independent basis
for dismissal under Chapter 14. In their motion to dismiss,
Butcher and the Department requested dismissal based on (1)
Shirley's failure to comply with the requirements of
Section 14.004; (2) the fact that Shirley's claims had no
basis in law because (a)Shirley failed to allege facts
showing a waiver of sovereign immunity for his state court
action, (b) Shirley's Eighth Amendment claims have no
basis in law under Fifth Circuit precedent, (c)Shirley failed
to allege the discriminatory intent necessary to support his
equal protection claim; and (3) Butcher has qualified
immunity against Shirley's claims. The judgment of
dismissal did not specify whether it was dismissing
Shirley's action as frivolous under Chapter 14 because he
failed to comply with the procedural requirements of Section
14.004, or because his claims had no basis in law or fact.
appeal, the appellant must challenge all independent grounds
supporting the judgment. Gross v. Carroll, 339
S.W.3d 718, 723 (Tex. App.-Houston [1st Dist.] 2011, no pet.)
(citing Britton v. Tex. Dep't of Criminal
Justice, 95 S.W.3d 676, 681 (Tex. App.-Houston [1st
Dist.] 2002, no pet.). If he does not do so, the appellate
court will affirm the judgment of the trial court.
Gross, 339 S.W.3d at 723; Britton, 95
S.W.3d at 681. In his brief, Shirley does not contest that he
failed to comply with the requirements of Section 14.004, and
does not challenge this ground for the dismissal of his
action. Therefore, we overrule Shirley's points of error.
affirm the judgment ...