Eriberto Lopez Jr. v. Jessika Martinez Lopez ( 2017 )

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER
Appellate case name: Eriberto Lopez, Jr. v. Jessika Martinez Lopez
Appellate case number: 01-16-00994-CV
Trial court case number: 2011-10549
Trial court: 257th District Court of Harris County
The Court’s March 28, 2017 Memo Opinion dismissed this appeal for want of
prosecution for failure to pay all required fees. On April 17, 2017, appellant, Eriberto
Lopez, Jr., filed a “Motion to Reinstate [T]his Appeal” (“Motion”). This Motion was
timely because it was received by the Clerk of this Court within the 10-day grace period
allowed for mailed filings after the April 12, 2017 motion for rehearing deadline. See
TEX. R. APP. P. 9.2(b)(1), 49.1.
Appellant’s Motion requests reinstatement of his appeal because he claims that he
had filed several affidavits of indigency with the district clerk and notice of appeal.
Appellant contends that because these affidavits of indigency were not contested, that
should have allowed him to proceed as indigent on appeal as he claims he was by this
Court in a related appeal. Although appellant attached to his Motion an affidavit of
indigency, signed on December 6, 2016, and filed with the district court, because he is
proceeding pro se and incarcerated, he has failed to comply with the additional
requirements of Chapter 14 of the Texas Civil Practices and Remedies Code governing
inmate litigation.
Section 14.004 of the Texas Civil Practice and Remedies Code provides that an
inmate who files an affidavit or unsworn declaration of inability to pay costs must file an
additional affidavit or declaration identifying each prior lawsuit, other than an action
under the Family Code, filed by the inmate without legal representation. TEX. CIV. PRAC.
& REM. CODE ANN. § 14.004(a) (West 2012). As to each prior lawsuit, the affidavit or
declaration must specify the operative facts, the case name or style, the cause number, the
court in which it was brought, the names of the parties, and the result of the suit. Id. If a
previous action or claim was dismissed as frivolous or malicious, the affidavit or unsworn
declaration of previous filings must state the date of any final judgment or order
affirming the dismissal. Id. at § 14.004(b).
Additionally, the affidavit or unsworn declaration of previous filings must be
accompanied by a certified copy of the inmate’s trust account statement reflecting the
balance of the account at the time the appeal was filed and all account activity during the
six months preceding the date the appeal was filed. TEX. CIV. PRAC. & REM. CODE ANN.
§§ 14.004(c); 14.006(f); see Douglas v. Moffett, 418 S.W.3d 336, 339 (Tex. App.—
Houston [14th Dist.] 2013, no pet.). Chapter 14’s requirements apply to all civil actions,
including appeals, filed by an inmate in which an affidavit of inability to pay costs is filed
by that inmate. See TEX. CIV. PRAC. & REM. CODE ANN. § 14.002(a).
Appellant has neither filed an additional affidavit or declaration relating to
previous filings nor has he filed a certified copy of his inmate trust account statement.
Because appellant is proceeding pro se and his Motion was timely filed, but he was not
previously notified by this Court of Chapter 14’s requirements, the Court construes this
Motion to include a motion for an extension of time to file a rehearing motion, and
grants it. See TEX. R. APP. P. 49.1, 49.8.
Accordingly, unless the appellant’s affidavit of past lawsuits and a certified copy
of his inmate trust account statement, as required by Chapter 14 of the Texas Civil
Practices and Remedies Code, are filed with the Clerk of this Court within 30 days of the
date of this Order, this Motion may be dismissed as moot without further notice. See
TEX. R. APP. P. 42.3(c); Gozowski v. T.D.C.J.–I.D., No. 12-14-00350-CV, 2014 WL
6983246, *1 (Tex. App.—Tyler Dec. 10, 2014, no pet.).
It is so ORDERED.
Judge’s signature: /s/ Laura Carter Higley

Date: May 2, 2017
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