Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
appeal from the 36th District Court of Bee County, Texas.
Justices Rodriguez, Longoria, and Hinojosa
LETICIA HINOJOSA JUSTICE
Salvador Zavala appeals the trial court's order
dismissing with prejudice the underlying lawsuit against
appellees M. Matthew, C. Furr, Barry J. Thomas, and Kristine
M. Zambrano, for failure to comply with chapter 14 of the
Texas Civil Practice and Remedies Code. See Tex.
Civ. Prac. & Rem. Code Ann. § 14.010(a) (West,
Westlaw through 2017 1st C.S.). In one issue, Zavala
complains that the trial court abused its discretion in
dismissing his lawsuit. We affirm.
Zavala, an inmate, filed an in forma pauperis
lawsuit against four employees of the Texas Department of
Criminal Justice-Institutional Division (TDCJ-ID). Zavala
alleged that one of the employees stole his headphones, the
other three employees "failed to correct said harm and
committed fraud", and all of the employees engaged in a
conspiracy to steal the headphones. Zavala asserted claims
for theft, referencing the Texas Theft Liability Act, see
id. § 134.003 (West, Westlaw through 2017 1st
C.S.), fraud, and conspiracy to commit fraud. The Office of
the Attorney General filed an amicus curiae motion
to dismiss, arguing that Zavala's claims were frivolous
and that Zavala filed a false declaration of indigency. The
trial court dismissed Zavala's lawsuit with prejudice
without specifying the reasons for its ruling. This appeal
Standard of Review
review a trial court's dismissal of a claim pursuant to
chapter 14 under an abuse-of-discretion standard. Wanzer
v. Garcia, 299 S.W.3d 821, 827 (Tex. App.-San Antonio
2009, pet. denied); Scott v. Menchaca, 185 S.W.3d
543, 545 (Tex. App.-Corpus Christi 2006, no pet.). The trial
court abuses its discretion if it acts arbitrarily,
unreasonably, or without reference to any guiding rules and
principles. Downer v. Aquamarine Operators,
Inc., 701 S.W.2d 238, 241-42 (Tex. 1985); McClain v.
Terry, 320 S.W.3d 394, 397 (Tex. App.-El Paso 2010, no
pet.). "The mere fact that a trial judge may decide a
matter within his discretionary authority in a different
manner than an appellate judge in a similar circumstance does
not demonstrate that an abuse of discretion has
occurred." Downer, 701 S.W.3d at 242; see
Hickson v. Moya, 926 S.W.2d 397, 399 (Tex. App.-Waco
1996, no writ). "Because the trial court did not specify
the grounds for dismissal, we will affirm the decision if any
theory is meritorious." McClain, 320 S.W.3d at
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. Donaldson v. Tex. Dep't of Crim.
Justice-Correctional Inst. 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).
A trial court has the discretion to dismiss an inmate's
lawsuit if the allegation of poverty in the indigence
affidavit is false. Tex. Civ. Prac. & Rem. Code Ann.
§ 14.003(a)(1) (West, Westlaw through 2017 1st C.S.).
The test for determining entitlement to proceed in forma
pauperis is whether the appellant would be unable to pay
the costs of his suit if he wanted to and made a good faith
effort to do so. Griffin Indus. v. Hon. Thirteenth Court
of Appeals, 934 S.W.2d 349, 351 (Tex. 1996) (quoting
Allred v. Lowry, 597 S.W.2d 353, 355 (Tex. Crim.
App. 1980)); Donaldson, 355 S.W.3d at 725.
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) (West, Westlaw through 2017 1st C.S.).
An inmate at the TDCJ-ID "who has no money or property
is considered indigent." Donaldson, 355 S.W.3d
at 725; McClain, 320 S.W.3d at 397. "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).
sole issue complains that the trial court abused its
discretion in dismissing his lawsuit. In this case, Zavala
had a balance in his trust account of $27.24 when the
underlying cause was filed, and the average monthly balance
in his account for the six-month period preceding the suit
was $61.92. The average monthly amount deposited into his
account during that same period was $162.50, and a total of
$975.00 had been deposited into his account in the six months
preceding suit. Accordingly, because Zavala had funds in his
trust account, the trial court did not abuse its discretion
in dismissing Zavala's lawsuit on the basis that his
indigence affidavit contained a false allegation 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); see
also Whitmire v. Guerra, No. 04-13-00477-CV, 2014 WL
235210, at *2 (Tex. App.-San Antonio Jan. 22, 2014, pet.
denied) (mem. op) (holding same where account had $20.34 when
the underlying cause was filed, the six-month average monthly
balance was $43.64, the six- month average monthly amount
deposited was $77.59, and a total of $465.51 had been
deposited into the account in the six months preceding suit);
Skinner v. Tex. Dep't of Crim. Justice Correctional
Inst. Div., No. 12-12-00091-CV, 2013 WL 543452, at *2-3
(Tex. App.-Tyler Feb.13, 2013, no pet.) (mem. op.) ...