Appeal from the 190th District Court Harris County, Texas,
Trial Court Case No. 2014-63129
consists of Justices Jennings, Bland, and Brown.
MEMORANDUM OPINION ON REHEARING
Artis Charles Harrell, appearing as a pro se inmate, has
filed a motion for rehearing of our October 19, 2017 opinion
and judgment. We deny Harrell's motion for rehearing,
withdraw our opinion and judgment of October 19, 2017, and
issue the following opinion and new judgment in their stead.
challenges the trial court's judgment dismissing his suit
against appellee, Jerome Godinich Jr., for breach of
fiduciary duty. In two issues, Harrell contends that the
trial court erred in sustaining the Harris County District
Clerk's contest to his affidavit of
indigence and dismissing his suit with prejudice.
modify the trial court's judgment and affirm as modified.
amended petition, Harrell, an inmate of the Texas Department
of Criminal Justice Institutional Division, alleged that
Godinich, his former criminal defense attorney, breached his
fiduciary duty by "refus[ing] to give Harrell"
"the entire contents of his . . . client files" and
"conceal[ing] exculpatory evidence from Harrell while
[Godinich] represented [him] at [a] [p]reliminary [a]ssigned
[a]ppearance and bond hearing and [two] [m]otion to
[s]uppress [e]vidence hearing[s]." According to Harrell,
Godinich's breach of his fiduciary duty "placed
[him] at a disadvantage in other pending legal matters"
and caused "severe emotional and mental distress."
attached to his original petition, filed on October 27, 2014,
an application to proceed in forma pauperis/affidavit of
indigence, declaring that he is unable to pay the costs and
fees associated with the proceedings and is "entitled to
[the] relief" sought in his petition. Harrell further
(1) I am not employed nor do I earn any income because I am
an inmate of the Texas Department of Corrections; (2) I do
not have a spouse; (3) I own no real or personal property;
(4) I hold no cash nor any amounts on deposits; (5) I have no
assests [sic]; (6) I have no dependents; (7) I have no debts;
(8) I have no monthly expenses; (9) I do not have the ability
to obtain a loan for court costs or fees; (10) No attorney is
providing free legal services; and (11) No attorney has
agreed to pay for advance court costs.
also attached to his original petition an "[a]ffidavit
[r]elating [t]o [p]revious [f]ilings, " stating that in
January 2006, he brought suit against several defendants for
"wrongful termination of [a] lease
agreement." And he attached to his original petition
"a current six (6) month history of [his] inmate trust
January 8, 2015, Harrell filed a Request for a Jury Trial and
Oath of Inability to Pay Cost, asserting that he is unable to
pay the fee for a jury trial. Harrell attached to his request
an Application for Inability to Pay Cost for Jury Fee,
declaring that he is unable to pay the costs and fees
associated with the proceedings and is "entitled to
[r]elief." Harrell stated that within the previous
twelve months, he had not received "any money" from
a "[b]usiness, profession[, ] or [through]
self-employment, " nor had he received any money from
"[r]ent payments, interests[, ] or dividen[d]s, "
"[p]ensions, annuities[, ] or life insurance, "
"[g]ifts or inheritances, " or "[a]ny other
source." He does not "own cash" or have any
"money in a checking or savings account" or his
"prison account, " and he does not own "any
real estate, stocks, bonds, notes, or other valuable
property." He does, however, receive $30 "a
month" from his mother. Harrell attached to his
application, "[a] [c]urrent [s]ix (6) [m]onth [h]istory
[o]f [his] [i]nmate [t]rust [a]ccount."
December 4, 2015, the Harris County District Clerk filed a
contest to Harrell's affidavit of indigence, asserting
that he did not comply with the pertinent
December 14, 2015, Harrell, in response to the district
clerk's contest, filed a Supplemental Affidavit of
Indigence, declaring that he is the plaintiff in this case,
unable to pay the costs and fees associated with the
proceedings, and "entitled to [the] relief" sought
in his petition. He further stated:
(1) Unrelated to the instant case, I previously filed a suit
for breach of contract; (2) In the previous suit[, ] . . .
[t]he corporate defendants breach[ed] our contract by not
giving me the required notice before terminating the lease
agreement; (3) The case [was]: Conversion, Cause Number
2006-02867, District Court 189th, Artis Charles Harrell vs.
Branch Brinson, et al., and the case was resolved by summary
judgment[;] (4) The document that reflect[s] [my] inmate
trust fund account during the six months preceeding [sic] the
date upon which the instant claims w[ere] filed is on file
already as to demonstrate the previous filings.
Supplemental Affidavit of Indigence, Harrell also
"object[ed]" to the district clerk's contest to
his affidavit of indigence, arguing that the trial court
should not sustain the contest because he "is an inmate
incarcerated in the Texas Department of Criminal Justice and
does not earn any money, and his affidavit was filed in good
faith." And Harrell asserted that his claims are
meritorious, he is "able to maintain his suit, "
and it is "probable" that he will "succeed at
trial on all claims."
hearing, the trial court, on December 17, 2015, signed a
Judgment and Order Sustaining Contest to Pauper's Oath.
In its order, the trial court sustained the district
clerk's contest to Harrell's affidavit of indigence,
enjoined any further proceedings in the case until Harrell
paid $355 in filing fees and other incurred costs, and
ordered Harrell to pay the required fees and costs by January
4, 2016, noting that if he failed to do so, his suit would be
dismissed without prejudice and a judgment would be entered
against him in the amount of $355.
April 11, 2016, the trial court signed its Final Judgment,
stating that it had previously entered a Judgment and Order
Sustaining Contest to Pauper's Oath in which it ordered
Harrell "to pay in full all filing fees in the amount of
$355 plus any and all costs incurred in the process of
th[e] case before January 4, 2016." After then finding
that Harrell had "failed to comply with the
[c]ourt's [previous] [o]rder, " it entered ...