Court of Appeals of Texas, Ninth District, Beaumont
Submitted on November 2, 2017
Appeal from the 411th District Court Polk County, Texas Trial
Cause No. CIV29146
McKeithen, C.J., Kreger and Horton, JJ.
CHARLES KREGER Justice
Norman Smithback appeals from the dismissal of his civil suit
for his failure to comply with Chapter 14 of the Civil
Practice and Remedies Code. See generally Tex. Civ.
Prac. & Rem. Code Ann. §§ 14.001-.014 (West
2017). We affirm the trial court's judgment.
an inmate housed in a secure facility administered by the
Correctional Institutions Division of the Texas Department of
Criminal Justice, filed the suit pro se and in
forma pauperis on July 1, 2014. Smithback alleged that
he was deprived of his civil rights when in retaliation for
attempting to initiate a federal criminal prosecution against
State and Federal officials, he was assaulted by a cellmate
in August 2011, and no criminal charges were initiated.
Smithback also alleged that unnamed Department officials were
interfering with Smithback's mail because he had received
no response to requests for representation that he mailed to
three different lawyers between December 2011 and May 2014.
Smithback sued Michael Butcher, individually and in his
official capacity as warden of the Polunsky Unit, and Captain
John Bolton, individually and in his official capacity as an
employee of the Texas Department of Criminal Justice. He
further alleged that other unknown prison officials and
private individuals were also responsible for violating his
civil rights. Smithback attached a copy of his inmate account
statement to his petition, but he did not attach a
declaration of previous filings.
filed a motion to dismiss. Bolton argued that Smithback
failed to timely file a claim after receiving a written
decision from the grievance system in 2011. See id.
§ 14.005(b). Bolton also argued that Smithback failed to
include an affidavit relating to his previous filings.
Id. § 14.004. Finally, Bolton maintained that
Smithback failed to plead facts showing that his
constitutional rights were violated by the defendants or that
the defendants engaged in conduct outside the reasonable
exercise of prison discipline. See id. §
14.003(a), (b). The trial court dismissed the suit for
failure to comply with Chapter 14 of the Civil Practice and
appeal brief, Smithback contends the trial court erred by
dismissing the case under Chapter 14. Smithback argues that
Chapter 14 does not apply to him because he is not legally
confined by the Texas Department of Criminal Justice, as he
is still attempting to overturn his 2002 conviction. Section
14.001(3) defines "Inmate" as "a person housed
in a secure correctional facility." Id. §
14.001(3). In his brief, Smithback asserts that he has been
incarcerated since 2002, and his trial court pleadings
demonstrate that he has been incarcerated in the Texas prison
system and housed in the Polunsky Unit and the Stiles Unit.
Therefore, he is an "inmate" as defined by section
14.001(3), making Chapter 14 applicable. Id.
14.004 of the Civil Practice and Remedies Code requires an
inmate who filed a declaration of inability to pay costs to
file a separate affidavit or declaration:
(1) 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
(2) describing each action that was previously brought by:
(A) stating the operative facts for which relief was sought;
(B) listing the case name, cause number, and the court in
which the ...