wayne-buford-v-texas-department-of-criminal-justice-institutional ( 2006 )

Reversed and Remanded and Memorandum Opinion filed October 19, 2006

Reversed and Remanded and Memorandum Opinion filed October 19, 2006.

In The

Fourteenth Court of Appeals

____________

NO. 14-06-00614-CV

____________

WAYNE BUFORD, Appellant

V.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION; ANNA RODRIGUEZ ARTHUR VELASQUEZ; ERNEST JOHNSON, JR. HERMAN WESTON , JR. JAMES MOSSBARGER; JULIO RODRIGUEZ, RORY KNOTT, Appellees

On Appeal from the 412th District Court

Brazoria County, Texas

Trial Court Cause No. 31323

MEMORANDUM   O P I N I O N

This is an appeal from a judgment signed June 2, 2006.  The judgment granted the motion to dismiss, based on Chapter 14 of the Texas Civil Practice and Remedies Code, filed by appellees, Anna Rodriguez, Arthur Velasquez, Ernest Johnston, Herman Weston, Jr., James Mossbarger, Julio Rodriguez, Rory Knott, and the Texas Department of Criminal Justice.

On August 2, 2006, appellees filed a motion to dismiss the appeal on the ground that the motion to dismiss was granted in error.  Appellees state that they filed their motion to dismiss mistakenly believing that appellant had sought indigent status.  Because appellant had not sought indigent status, appellees claim that the granting of the motion to dismiss was error.

Chapter 14 of the Texas Civil Practice and Remedies Code applies to suits filed by inmates in a district, county, justice of the peace, or small claims court in which an affidavit of indigence or unsworn declaration of inability to pay costs is filed by the inmate.  Tex. Civ. Prac. & Rem. Code Ann. ' 14.002(a) (Vernon 2002).  The record does not show that appellant filed an affidavit or unsworn declaration of inability to pay in the trial court.  Accordingly, the trial court erred in dismissing appellant=s suit under Chapter 14.

Because the trial court erred in dismissing appellant=s suit, the remedy is not to dismiss the appeal, as requested by appellees.  Instead, the remedy is to reverse the trial court=s judgment and remand to the trial court.  We will construe appellees= motion as a motion to reverse and remand.  We grant appellees= motion.

Accordingly, the judgment of the trial court is reversed and the cause is remanded to the trial court for further proceedings.

PER CURIAM

Judgment rendered and Memorandum Opinion filed October 19, 2006.

Panel consists of Justices Anderson, Hudson, and Guzman.