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Remsburg v. Marquez

Court of Appeals of Texas, Seventh District, Amarillo

February 15, 2018


         On Appeal from the 69th District Court Hartley County, Texas Trial Court No. 5009-H; Honorable Ron Enns, Presiding

          Before QUINN, C.J., and PIRTLE and PARKER, JJ.



         Appellant, Daniel Remsburg, an inmate proceeding pro se and in forma pauperis, appeals from the trial court's order dismissing his suit with prejudice against Appellees, Julie Marquez, Anthony Marquez, and the Texas Department of Criminal Justice (collectively the Department). Remsburg sued under the Texas Tort Claims Act[1] for, among other claims, the common law torts of conversion in detinue and trover after property belonging to him was confiscated in December 2015 during a prison shakedown. By six issues, he contends (1) he substantially complied with chapter 14 of the Texas Civil Practice and Remedies Code; (2) the trial court erred in not ruling on various motions; (3) his claims were not barred by the Texas Tort Claims Act; (4) his equitable claims survived the Act; (5) the law was unconstitutionally applied to the facts; and (6) his claims should have been dismissed without prejudice. After the Department filed its brief, Remsburg supplemented his brief to more adequately present his issues. We reverse and remand.


         According to Remsburg's petition, during the prison shakedown, inmates were directed to "pack up [their] stuff" and proceed to the gym while cells were inspected. Remsburg was singled out to be "blue boxed."[2] According to his petition, an inmate's belongings, with certain exceptions, must fit in a two-cubic-foot bin. Remsburg left certain items, including his legal materials, outside the bin.

         A guard questioned Remsburg about the items left outside the bin. He responded that, per policy, certain items and legal materials were not required to be placed in the bin. Guards disputed that his paperwork consisted of legal materials and confiscated it as excessive personal property. He was instructed to proceed to the confiscation desk to complete paperwork. Remsburg contends that policies were not followed and when his legal materials were not returned, he completed the required offender grievance forms.

         By his grievances, Remsburg asserted that although he disposed of books and magazines to make room for his legal materials, his confiscated property was not returned. The official responses to his grievances were that his paperwork did not constitute legal materials as he claimed and that his failure to eliminate excess property in a timely manner prevented the return of his property. The response to his second grievance concluded that no violations of policy were noted by the Department's staff.

         Following the Department's response to his second grievance, Remsburg filed his original petition in April 2016. He also filed his Affidavit of Inability to Pay Costs and an Affidavit of Previous Pro Se Actions as required by chapter 14. On June 1, 2016, the Department moved to dismiss Remsburg's suit. Among other grounds, the Department alleged that Remsburg failed to exhaust his administrative remedies or comply with the filing requirements of chapter 14 of the Code, including failing to file a certified copy of his inmate trust account statement when he filed suit. Without holding a hearing, the trial court granted the motion to dismiss "for failure to comply with Chapter 14 of the Texas Civil Practices [sic] and Remedies Code."

         Standard of Review

         We apply an abuse of discretion standard to the review of the dismissal of an indigent inmate's suit pursuant to chapter 14. Bishop v. Lawson, 131 S.W.3d 571, 574 (Tex. App.-Fort Worth 2004, pet. denied). A trial court abuses its discretion when it acts without reference to any guiding rules or principles. Quixtar Inc. v. Signature Mgmt. Team, LLC, 315 S.W.3d 28, 31 (Tex. 2010) (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985)). The fact that a trial court may decide a matter within its discretion in a different manner than an appellate court in a similar circumstance does not demonstrate an abuse of discretion. Downer, 701 S.W.2d at 242.

         Applicable Law

         The statutory scheme for indigent inmate litigation is governed by chapter 14 of the Code. Tex. Civ. Prac. & Rem. Code Ann. §§ 14.001-.014 (West 2017).[3] When an inmate brings an action (other than an action brought under the Family Code) and files an affidavit or unsworn declaration of inability to pay costs, he must comply with the procedural requirements of chapter 14. § 14.002(a).

         Section 14.003-Dismissal of Claims

         Failure to comply with the procedural requirements of chapter 14 can result in the dismissal of a claim. § 14.003. Section 14.003, entitled "Dismissal of Claim, " is not, however, a compliance statute per se. Rather, it is a statutory provision which delineates circumstances under which a trial court may dismiss an inmate's suit subject to the procedural requirements of chapter 14. In relevant part, it provides as follows:

(a) [a] court may dismiss a claim, either before or after service of process, if the court finds that:
(1) the allegation of poverty in the affidavit or unsworn ...

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