John E. Rodarte v. Beneficial Texas, Inc. , 2015 Tex. App. LEXIS 12448 ( 2015 )

Fourth Court of Appeals
San Antonio, Texas
OPINION
No. 04-15-00647-CV
John E. RODARTE Sr.,
Appellant
v.
BENEFICIAL TEXAS, INC.,
Appellee
From the 166th Judicial District Court, Bexar County, Texas
Trial Court No. 2010-CI-14597
Honorable Michael E. Mery, Judge Presiding
Opinion by: Patricia O. Alvarez, Justice
Sitting: Patricia O. Alvarez, Justice
Luz Elena D. Chapa, Justice
Jason Pulliam, Justice
Delivered and Filed: December 9, 2015
DISMISSED
Appellant John E. Rodarte Sr., an indigent inmate acting pro se, filed a notice of appeal
with this court, but he failed to file an accompanying affidavit relating to his previous suits. We
ordered him to file a separate affidavit listing the previous pro se actions he has brought. See TEX.
CIV. PRAC. & REM. CODE ANN. § 14.004 (West Supp. 2015). We notified him that if he failed to
comply with the statutory requirements, we could dismiss his appeal without further notice.
Because Appellant failed to comply with the statute and our order, we dismiss this appeal.
04-15-00647-CV
BACKGROUND
On October 19, 2015, Appellant John E. Rodarte Sr., an inmate acting pro se, filed a notice
of appeal with this court. Appellant’s notice of appeal states he is currently incarcerated, shows
his return address as the Clements Unit of the Texas Department of Criminal Justice—Institutional
Division, and states he is indigent. Because Appellant is an inmate and asserts he cannot pay costs,
on October 23, 2015, we ordered Appellant to file in this court by November 12, 2015, (1) a
separate affidavit listing the previous pro se actions he has brought and (2) a certified copy of his
inmate trust account statement. See id. § 14.002(a) (applying affidavit and other requirements to
inmate appeals effective January 1, 2012); id. § 14.004 (requiring a pro se inmate asserting
inability to pay costs to file a detailed list of previous pro se actions and a certified copy of the
inmate’s trust account statement). We advised Appellant that his affidavit and certified statement
must be timely filed and must meet the applicable statutory requirements. E.g., id. § 14.004(a)
(affidavit of actions); id. § 14.004(b) (dispositions); id. § 14.004(c) (account statement). We also
cautioned Appellant that this court could dismiss this appeal without further notice if Appellant
failed to timely file the statutorily required documents. Cf. Douglas v. Moffett, 418 S.W.3d 336,
340 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (dismissing an appeal where an inmate failed
to comply with Chapter 14 requirements); Amir-Sharif v. Mason, 243 S.W.3d 854, 857 (Tex.
App.—Dallas 2008, no pet.) (recognizing that a trial court may dismiss an indigent inmate’s suit
without notice or hearing for failing to file the previous actions affidavit).
APPELLANT’S RESPONSE
On November 6, 2015, Appellant filed his “Appellant’s Brief.” In various portions of the
body of his brief, he listed some of the cause numbers for actions he has initiated, but he did not
provide the additional information required by statute. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 14.004. He failed to provide the following information:
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04-15-00647-CV
• “a separate affidavit,” id. § 14.004(a);
• “the operative facts for which relief was sought,” id. § 14.004(a)(2)(A);
• “the case name [or] court in which the action was brought,” id. § 14.004(a)(2)(B);
• “[the] identi[ty of] each party in the action,” id. § 14.004(a)(2)(C); and
• “the result of the action, including whether the action or a claim that was a basis for the
action was dismissed as frivolous or malicious,” id. § 14.004(a)(2)(D).
Rather than provide the statutorily required information as ordered, Appellant asked this court to
waive the statutory requirements and order the clerk of this court to “obtain verification of the
cases filed by [A]ppellant[] from the U.S. District Court, U.S. Court of Appeals, [f]or [t]he [Fifth]
Circuit in Louisiana, U.S. Bankruptcy Court, . . . , Bexar County District Clerk, Donna Kay
McKinney, Travis County, Texas District Clerk, [and the] Third Court of Appeals in Austin,
Texas.”
DISPOSITION OF APPEAL
Our October 23, 2015 order identified the information Appellant was required to provide
and cautioned him that this appeal could be dismissed without further notice if he failed to meet
the statutory requirements. In his response, Appellant listed at least twelve cause numbers, but
failed to provide the additional information the statute expressly requires. See id. § 14.004;
Douglas, 418 S.W.3d at 340; Amir-Sharif, 243 S.W.3d at 857. Instead, citing Rule 2, Appellant
asked this court to waive the statutory requirements and order the clerk of this court to obtain the
information that we instructed Appellant he must provide. See TEX. R. APP. P. 2 (Suspension of
Rules).
“The requirement to file the affidavit relating to previous filings is mandatory, and failure
to file the affidavit is grounds alone to dismiss the suit.” Amir-Sharif, 243 S.W.3d at 858 (citing
TEX. CIV. PRAC. & REM. CODE ANN. § 14.003); see White v. Univ. of Tex. Med. Branch, No. 04-
02-00778-CV, 2003 WL 21010675, at *1 (Tex. App.—San Antonio May 7, 2003, no pet.) (mem.
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op.). Appellant was required to file a separate affidavit containing all the information required by
the statute. See Amir-Sharif, 243 S.W.3d at 858. Even after he was warned, he knowingly failed
to provide the information required by statute and ordered by this court. See TEX. CIV. PRAC. &
REM. CODE ANN. § 14.004; Douglas, 418 S.W.3d at 340; Amir-Sharif, 243 S.W.3d at 857. We
decline Appellant’s invitation to expend judicial resources to satisfy a burden the legislature placed
on him. See TEX. CIV. PRAC. & REM. CODE ANN. § 14.004; Kennedy v. Staples, 336 S.W.3d 745,
751 (Tex. App.—Texarkana 2011, no pet.) (addressing litigants’ access to valuable judicial
resources). Further, because Appellant failed to provide a complete affidavit of previous filings,
we conclude the underlying cause is frivolous. See Douglas, 418 S.W.3d at 340 (“When an inmate
does not provide a complete affidavit of previous filings, ‘the trial court is entitled to assume the
[current action] is substantially similar to one previously filed by the inmate, and therefore,
frivolous.’” (alteration in original) (quoting Bell v. Tex. Dep’t of Criminal Justice-Institutional
Div., 962 S.W.2d 156, 158 (Tex. App.—Houston [14th Dist.] 1998, pet. denied)).
Appellant’s motion to waive the statutory requirements for an affidavit relating to previous
filings is denied, and this appeal is dismissed.
Patricia O. Alvarez, Justice
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