Richard v. Dretke (Tex.App.- Houston [14th Dist.] Apr. 7, 2009)(Frost)
(
pro se litigants, IFP inmate suit dismissal, frivolous finding)
AFFIRMED: Opinion by
Justice Frost   
Before Justices Frost, Brown and Boyce)
14-08-00714-CV  Anthony Joseph Richard v. Douglas Dretke, Et Al.
Appeal from 349th District Court of Houston County

M E M O R A N D U M   O P I N I O N

Appellant Anthony Joseph Richard appeals the trial court’s dismissal of his claims under Chapter 14 of
the Texas Civil Practice and Remedies Code.  We affirm.

I.  Factual and Procedural Background

Appellant is an inmate in the Texas Department of Criminal Justice Institutional Division.  On April 7,
2007, appellant filed a pro se, in forma pauperis lawsuit against numerous individuals alleging violation
of 42 U.S.C. section 1983.  Without conducting a hearing, on May 7, 2008, the trial court dismissed
appellant’s claims without prejudice, finding that the claims were frivolous and malicious and not in
compliance with sections 14.004 and 14.005 of the Texas Civil Practice and Remedies Code.  

In two issues, appellant challenges the dismissal of his claims, alleging that (1) by dismissing his claim
under Chapter 14, the trial court violated the Article 6 “oath” to uphold the United States Constitution;
and (2) the trial court denied appellant’s “Due Process” rights to access to the courts under the Texas
Constitution.

II.  Standard of Review

Because appellant is an inmate, his suit is governed by Chapter 14 of the Texas Civil Practice and
Remedies Code.  Tex. Civ. Prac. & Rem. Code Ann. § 14.002(a) (Vernon 2002); see Hickman v.
Adams, 35 S.W.3d 120, 123 (Tex. App.- Houston [14th Dist.] 2000, no pet.).  We review a trial court’s
dismissal of an inmate’s claims under Chapter 14 of the Texas Civil Practice and Remedies Code
under an abuse-of-discretion standard.  Retzlaff v. Tex. Dep’t of Criminal Justice, 94 S.W.3d 650, 654
(Tex. App.- Houston [14th Dist.] 2002, pet. denied).  A trial court has broad discretion to dismiss an
inmate’s suit if it finds that the claim asserted is frivolous or malicious.  See Martinez v. Thaler, 931 S.
W.2d 45, 46 (Tex. App.- Houston [14th Dist.] 1996, writ denied).  A trial court abuses this broad
discretion if it acts arbitrarily, capriciously, or without reference to any guiding rules or principles.  See
id.

III.  Analysis

A.      Did the trial court abuse its discretion in dismissing appellant’s claims under Chapter
14 of the Texas Civil Practice and Remedies Code?

1.       Section 14.004

Appellant complains the dismissal of his claim was improper.  Section 14.003[1] of the Texas Civil
Practice and Remedies Code provides that a trial court may dismiss a claim if the court finds that the
suit is frivolous or malicious.  See Tex. Civ. Prac. & Rem. Code Ann. § 14.003(a)(2) (Vernon 2002).  In
determining whether a suit is frivolous or malicious, the court may consider, among other things,
whether the claim is substantially similar to a previous claim filed by the inmate because the claim
arises from the same operative facts.  See id. ' 14.003(b)(4).  To enable the trial court to determine
whether a claim arises from the same operative facts as a previous claim, the legislature enacted
section 14.004.  Hickman, 35 S.W.3d at 124; see Tex. Civ. Prac. & Rem. Code Ann. § 14.004 (Vernon
2002).

Section 14.004, entitled Affidavit Relating to Previous Filings,” requires an inmate who files an affidavit
or unsworn declaration of inability to pay costs to file a separate affidavit or declaration setting out the
following information:

(1)     identifying each suit, other than a suit 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 suit was brought; and

(2)     describing each suit 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 suit was brought;

(C)     identifying each party named in the suit; and

(D)     stating the result of the suit, including whether the suit was dismissed as frivolous or malicious
under Section 13.001 or Section 14.003 or otherwise.

Tex. Civ. Prac. & Rem. Code Ann. § 14.004(a).

The record contains no affidavits or unsworn declarations in compliance with section 14.004.  
Appellant filed a declaration listing previous lawsuits filed, but failed to set forth in sufficient detail the
operative facts upon which relief was sought in each suit.  See Tex. Civ. Prac. & Rem. Code Ann. §
14.004(a)(2)(A) (requiring description of operative facts of previous litigation).  Moreover, in his
declaration appellant does not identify the parties named in the previous suits.  See id. §14.004(a)(2)
(C).  Without a more detailed description of the operative facts surrounding each of appellant’s
previous lawsuits and identifying those parties involved, the trial court was in no position to evaluate
whether appellant’s current claim was substantially similar to his previous claims.  See Bell v. Tex. Dep’
t of Criminal Justice-Inst. Div., 962 S.W.2d 156, 158 (Tex. App.- Houston [14th Dist.] 1998, pet.
denied).  When, as in this case, an inmate files an affidavit or declaration that fails to comply with the
requirements of section 14.004, the trial court is entitled to presume that the suit is substantially similar
to one previously filed by the inmate, and therefore, frivolous.  Bell, 962 S.W.2d at 158.  Accordingly,
the trial court may dismiss an indigent inmate’s suit as frivolous or malicious without holding a hearing
when an inmate fails to comply with the statutory requirements of section 14.004.  See Gowan v. Tex.
Dep’t of Criminal Justice, 99 S.W.3d 319, 321 (Tex. App.- Texarkana 2003, no pet.).  For this reason,
the trial court did not err in dismissing appellant’s suit without a hearing.

2.       Section 14.005

The trial court also found that appellant failed to file his “claims before the 31st day after receiving a
written decision from the grievance system as required under section 14.005.”  Appellant indicates he
properly complied, although he does not explain how he did so, and he complains that he “cannot
control when unit indigent officials or county clerk[s] apply by their duties.”[2]

Section 14.005(b) provides that A[a] court shall dismiss a claim if the inmate failed to file the claim
before the 31st day after the date the inmate receives the written decision from the grievance
system.”  Tex. Civ. Prac. & Rem. Code Ann. § 14.005(b) (Vernon 2002).  To enable the trial court to
determine whether the inmate’s suit was filed within the period prescribed by section 14.005(b), the
inmate must file (1) an affidavit or unsworn declaration stating the date the grievance was filed and the
date the inmate received the written decision, and (2) a copy of the written decision from the grievance
system.  See id. ' 14.005(a); Moore v. Zeller, 153 S.W.3d 262, 264 (Tex. App.- Beaumont 2004, pet.
denied).  The record reflects that appellant filed the suit on April 2, 2007, and on the same date,
appellant filed with the trial court numerous inmate “Step 1" and “Step 2" grievance forms showing that
an administrative body had denied his grievances in writing.  Some of the forms indicate the date on
which appellant received the written decision, but others do not.  None of the forms indicates appellant’
s receipt of the written decisions within the thirty-one days preceding the date appellant filed suit.  
Therefore, it is not clear from the face of the grievance forms that appellant acted within the thirty-one
day period.  See Francis v. TDCJ-CID, 188 S.W.3d 799, 804-05 (Tex. App.- Fort Worth 2006, no pet.).

On May 7, 2008, appellant filed a declaration, entitled Administrative Remedy Grievance Declaration
Pursuant to ' 14.005,” but the declaration does not include the specific dates that appellant received
the written decisions from the grievance system, and it does not state that appellant received a written
decision.  See Tex. Civ. Prac. & Rem. Code Ann. § 14.005(a); Moore, 153 S.W.3d at 264; see also
Kelley v. Scott, No. 14-01-00696-CV, 2003 WL 21229275, at *3 (Tex. App.- Houston [14th Dist.] May
29, 2003, no pet.) (mem. op.).  Therefore, appellant has not substantially complied with the
requirements of section 14.005.  See Tex. Civ. Prac. & Rem. Code Ann. § 14.005(a); Moore, 153 S.W.
3d at 264.

Although it is arguable that circumstances may arise in which an inmate is prevented from acting within
the thirty-one day period, the record does not indicate that such circumstances were present in this
case.  See Randle v. Wilson, 26 S.W.3d 513, 516 (Tex. App.- Amarillo 2000, no pet.).  Moreover,
nothing in the record indicates that the State or conditions of appellant’s confinement prevented
appellant from complying with section 14.005.  See id. Because appellant did not comply with the
requirements of section 14.005, the trial court was obligated to dismiss the suit.  See Tex. Civ. Prac. &
Rem. Code Ann. § 14.005(b); Randle, 26 S.W.3d at 516.  Thus, the trial court did not abuse its
discretion in entering the order of dismissal.

B.      Did the trial court’s application of Chapter 14 to appellant’s suit violate the United
States Constitution or the Texas Constitution?

1. United States Constitution

Appellant contends that in making its Chapter 14 ruling the trial court violated the “oath” of Article 6 of
the United States Constitution to uphold the constitution, namely the Supremacy Clause and the First
Amendment, because the trial court applied the procedural provisions of Chapter 14 instead of
constitutional law in dismissing appellant’s claims under 42 U.S.C. section 1983.

Under the Supremacy Clause, a state law is without effect if it conflicts with federal law.  Thomas v.
Wichita Gen. Hosp., 952 S.W.2d 936, 939-40 (Tex. App.- Fort Worth 1997, pet. denied).  States may
apply neutral procedural rules, such as sections 14.004 and 14.005, to federal claims to discourage
frivolous litigation as long as the rules are not pre-empted by federal law.  See Thomas v. Bush, 23 S.
W.3d 215, 217-18 (Tex. App.- Beaumont 2000, pet. denied); Wichita Gen. Hosp., 952 S.W.2d at 939-
40.

Claims under 42 U.S.C. section 1983, such as those alleged by appellant, are subject to federal
provisions, including a bar on frivolous lawsuits and a requirement to exhaust remedies.  Bush, 23 S.W.
3d at 218 (citing 28 U.S.C. ' 1915(g) (West Supp. 2000) and 42 U.S.C. § 1997e(a) (West Supp.
2000)).  Because federal law imposes substantially similar requirements on inmates who file suits in
forma pauperis, sections 14.004 and 14.005 do not conflict with the Supremacy Clause.  See id.; see
also Wichita Gen. Hosp., 952 S.W.2d at 940.  The trial court’s application of Chapter 14 neither
conflicts with federal law nor affects an inmate’s right to file a federal claim in Texas courts.  See
Wichita Gen. Hosp., 952 S.W.2d at 940.  Rather, sections 14.004 and 14.005 impose neutral
procedural requirements on pro se indigent inmates who file civil claims in state court; the purpose of
the statutory provisions is to enable the trial court to discern whether the claims are frivolous.  Bush,
23 S.W.3d 215, 217-18; Wichita Gen. Hosp., 952 S.W.2d at 940.  Therefore, sections 14.004 and
14.005 do not violate the Supremacy Clause.  See Bush, 23 S.W.3d at 218; Wichita Gen. Hosp., 952 S.
W.2d at 940.

As for appellant’s claim that the trial court’s application of Chapter 14 violates his First Amendment
rights to redress grievances, the procedural requirements of Chapter 14 do not restrict an inmate’s
right to file suit and the provisions do not authorize the court to refuse to hear meritorious claims.  
Wichita Gen. Hosp., 952 S.W.2d at 940.  Rather, these procedural requirements assist a trial court in
determining whether an inmate’s suit is frivolous and compel a litigant to act so that a court may timely
address legitimate claims.  Id.; see Randle, 26 S.W.3d at 516.  Therefore, application of these
statutory provisions do not violate the First Amendment of the United States Constitution.  Wichita
Gen. Hosp., 952 S.W.2d at 940.  Accordingly, appellant’s argument that the trial court did not uphold
its oath in applying Chapter 14 is without merit.[3]

2. Texas Constitution

Appellant claims that the trial court denied him rights guaranteed under the “Due Process”[4] and
Open Courts provisions of the Texas Constitution by dismissing his claims under Chapter 14.  As part
of this argument, appellant complains that the trial court did not hold an evidentiary hearing on the
merits of his lawsuit despite his request, although he admits the appellate record does not indicate
whether his request for the hearing was received or filed with the trial court.[5]

We presume that Chapter 14 is constitutional.  See Edgewood Indep. Sch. Dist. v. Meno, 917 S.W.2d
717, 725 (Tex. 1995); see also Kelley, 2003 WL 21229275, at *4.  To establish violation of the Open
Courts Clause, a party must establish (1) that the party has a cognizable common law cause of action
that is being restricted, and (2) the restriction is unreasonable or arbitrary when balanced against the
purpose and basis of the statute.  Bush, 23 S.W.3d at 218 (reviewing whether sections 14.004 and
14.005 violate the Open Courts provision); see also Spellmon v. Sweeney, 819 S.W.2d 206, 210 (Tex.
App.- Waco 1991, no writ) (providing that a law is unconstitutional and violates due process “when it is
arbitrary or unreasonable,” which occurs when the Asocial necessity” the law is intended to serve is
not a “sufficient justification of the restriction of the liberty or rights involved”) (holding that dismissal of
grievances under section 13.001 of the Texas Civil Practice and Remedies Code did not violate Due
Course of Law provision).  The litigant has the burden of establishing that the limitation was
unreasonable.  See Randle, 26 S.W.3d at 515; see also Kelley, 2003 WL 21229275, at *4-5 (placing
burden on the appellant to show section 14.005 was unconstitutional as violating Due Course of Law
and Open Courts provisions of Texas Constitution).

Appellant filed a statutory claim under 42 U.S.C. section 1983, and argues only that he could not
comply with Chapter 14.  Sections 14.004 and 14.005 impose procedural requirements on pro se
indigent inmates to enable the trial court to discern whether a claim is frivolous, thereby curbing
“constant, often duplicative, inmate litigation,” or to compel a litigant to take action to enable a trial
court to timely and efficiently address legitimate claims.  See Bush, 23 S.W.3d at 218; Randle, 26 S.W.
3d at 516.  Appellant has made no effort to establish that these procedural limitations were
unreasonable.  See Randle, 26 S.W.3d at 515; see also Kelley, 2003 WL 21229275, at *4.  Appellant’s
claims that he could not adhere to the requirements of sections 14.004 and 14.005 do not defeat the
reasonableness of these provisions in light of their purposes, nor is the trial court’s application of
Chapter 14 unreasonable in light of these provisions’ purposes in this case.  See Bush, 23 S.W.3d at
218; Randle, 26 S.W.3d at 516 (determining that appellant has not demonstrated that time restrictions
on filing claims were unreasonable).  Therefore, we reject appellant’s argument that Chapter 14 is
unreasonable and violates the Due Course of Law and Open Courts provisions of the Texas
Constitution.  See Sanders v. Palunsky, 36 S.W.3d 222, 227 (Tex. App.- Houston [14th Dist.] 2001, no
pet.); Randle, 26 S.W.3d at 515-16; see also Kelley, 2003 WL 21229275, at*4.

IV.  Conclusion

The trial court’s application of Chapter 14 to appellant’s claims did not violate either the United States
or Texas Constitutions.  See Bush, 23 S.W.3d at 218; Randle, 26 S.W.3d at 515-16.  Furthermore, the
trial court did not abuse its discretion when it dismissed appellant’s suit under Chapter 14.  See
Randle, 26 S.W.3d at 515-16; Bell, 962 S.W.2d at 158.  Therefore, we overrule appellant’s two issues
on appeal.

Having overruled all of appellant’s issues, we affirm the trial court’s judgment.

/s/      Kem Thompson Frost

Justice

Panel consists of Justices Frost, Brown, and Boyce.

--------------------------------------------------------------------------------

[1]  Unless otherwise stated, all references in this opinion to a section are to the corresponding section
of the Texas Civil Practice and Remedies Code.

[2]  We presume this argument refers to appellant’s complaint that he filed a motion for an evidentiary
hearing, although this motion, as indicated by appellant in his appellate brief, is not reflected in the
record.

[3]  As for appellant’s arguments that the trial court violated the Code of Judicial Conduct Canon 4(D)
(2) or that “counsel/clerk” did not comply with Rule 303 of the State Bar Rules, appellant has not
provided analysis or citations to the record or legal authorities for these arguments.  Therefore,
appellant has waived these complaints.  See Tex. R. App. P. 38.1(h); San Saba Energy, L.P. v.
Crawford, 171 S.W.3d 323, 338 (Tex. App.- Houston [14 Dist.] 2005, no pet.) (holding that, even
though courts interpret briefing requirements reasonably and liberally, parties asserting error on
appeal still must put forth some specific argument and analysis citing the record and authorities in
support of the parties’ argument).  

Similarly, appellant refers to “property rights” as a vested right and that a “court cannot use a
procedural state law to take appellant’s property without a [sic] adequate compensation guaranteed by
the Texas Bill of Right[s].”  He cites the following cases:  Logan v. Zimmerman Brush, Co., 455 U.S.
422, 429, 102 S. Ct. 1148, 1154, 71 L. Ed. 2d 265 (1982) (involving employee rights under the Fair
Employment Practices Act); Subaru of Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 219
(Tex. 2002) (involving, among other things, jurisdiction and exhaustion of remedies under the
Deceptive Trade Practices Act); Gutierrez v. Elizondo, 139 S.W.3d 768 (Tex. App.- Corpus Christi
2004, no pet.) (involving, among other things, nunc pro tunc judgment and sufficiency of the
evidence); Cozby v. City of Waco, 110 S.W.3d 32 (Tex. App.- Waco 2002, no pet.) (involving a plea to
the jurisdiction and summary judgment).  However, the legal authority cited by appellant is not on point
for the issues presented, and appellant has not demonstrated how any property rights were affected
by the dismissal of his claims.

[4]  The Supreme Court of Texas has stated that the language of the Due Course of Law Clause of the
Texas Constitution and the Due Process Clause of the United States Constitution is “nearly identical”
and that there is no meaningful distinction between “due course” and “due process.”  See Univ. of Tex.
Med. Sch. v. Than, 901 S.W.2d 926, 929 (Tex. 1995).

[5]  The record does not reflect whether the trial court ruled on any such request.  When the record
contains no such motion and no record of the trial court’s ruling on the motion, a reviewing court
presumes that the record supports the judgment.  See Thomas v. Bilby, 40 S.W.3d 166, 168-69 (Tex.
App.- Texarkana 2001, no pet.) (citing Conely v. Peck, 929 S.W.2d 630, 633 (Tex. App.- Austin 1996,
no writ)).  Assuming arguendo that the trial court received appellant’s motion, a trial court is not
required to hold a hearing before dismissing a suit as frivolous under section 14.003(a), when the
party failed to file documents in compliance with section 14.004.  Id. at 168; see Tex. Civ. Prac. & Rem.
Code Ann. § 14.003(c) (Vernon 2002).