Matthew D. Whitmire v. Joyce Guerra, Vicky Barrow, Billie Harris and Rosalina Smith ( 2014 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-13-00477-CV
Matthew D. WHITMIRE,
Appellant
v.
Joyce GUERRA, Vicky Barrow, Billie Harris and Rosalina
Joyce GUERRA, Vicky Barrow, Billie Harris and Rosalina Smith,
Appellees
From the 278th District Court, Walker County, Texas
Trial Court No. 26,139
Kenneth H. Keeling, Judge Presiding
Opinion by: Catherine Stone, Chief Justice
Sitting: Catherine Stone, Chief Justice
Karen Angelini, Justice
Luz Elena D. Chapa, Justice
Delivered and Filed: January 22, 2014
AFFIRMED
Matthew D. Whitmire appeals the trial court’s order dismissing the underlying cause as
frivolous and for failure to comply with Chapter 14 of the Texas Civil Practice and Remedies
Code. We affirm the trial court’s order.
BACKGROUND
Whitmire, an inmate, filed an in forma pauperis lawsuit against employees of the Texas
Department of Criminal Justice – Institutional Division, alleging various claims relating to the
confiscation and destruction of his legal material. The Office of the Attorney General filed an
04-13-00477-CV
amicus curiae advisory, asserting that the claims were frivolous and that Whitmire had failed to
comply with several provisions of Chapter 14 of the Code. The trial court dismissed Whitmire’s
suit without identifying a specific basis for its order.
STANDARD OF REVIEW
A trial court’s dismissal of a claim pursuant to Chapter 14 is reviewed under an abuse of
discretion standard. Wanzer v. Garcia, 299 S.W.3d 821, 827 (Tex. App.—San Antonio 2009, pet.
denied); Hickson v. Moya, 926 S.W.2d 397, 398 (Tex. App.—Waco 1996, no writ). The trial court
abuses its discretion if it acts arbitrarily, unreasonably, or without reference to any guiding rules
and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985);
McClain v. Terry, 320 S.W.3d 394, 397 (Tex. App.—El Paso 2010, no pet.). “The mere fact that
a trial judge may decide a matter within his discretionary authority in a different manner than an
appellate judge in a similar circumstance does not demonstrate that an abuse of discretion has
occurred.” Downer, 701 S.W.3d at 242; see also Hickson, 926 S.W.2d at 399. “Because the trial
court did not specify the grounds for dismissal, we will affirm the decision if any theory is
meritorious.” McClain, 320 S.W.3d at 398.
DISCUSSION
Chapter 14 governs lawsuits brought by an inmate in which the inmate has filed an affidavit
or unsworn declaration of inability to pay costs. Donaldson v. Tex. Dept. of Crim. Justice –
Correctional Inst. Div., 355 S.W.3d 722, 724 (Tex. App.—Tyler 2011, pet. denied); In re
Simmonds, 271 S.W.3d 874, 876 (Tex. App.—Waco 2008, orig. proceeding). A trial court has the
discretion to dismiss an inmate’s lawsuit if the allegation of poverty in the indigence affidavit is
false. TEX. CIV. PRAC. & REM. CODE ANN. § 14.003(a)(1) (West 2002). The test for determining
entitlement to proceed in forma pauperis is whether the appellant would be unable to pay the costs
of his suit if he wanted to and made a good faith effort to do so. Griffin Indus. v. Hon. Thirteenth
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Court of Appeals, 934 S.W.2d 349, 351 (Tex. 1996) (quoting Allred v. Lowry, 597 S.W.2d 353,
355 (Tex. Crim. App. 1980)); Donaldson, 355 S.W.3d at 725.
To enable the trial court to determine whether an inmate is indigent, the inmate is required
to file a certified copy of his inmate trust account “reflect[ing] the balance of the account at the
time the claim is filed and activity in the account during the six months preceding the date on
which the claim is filed.” TEX. CIV. PRAC. & REM. CODE ANN. § 14.006(f) (West 2002). An
inmate at the TDCJ “who has no money or property is considered indigent.” Donaldson, 355
S.W.3d at 725; McClain, 320 S.W.3d at 397. “However, ‘[a]n inmate who has funds in his trust
account is not indigent.’” Donaldson, 355 S.W.3d at 725 (quoting McClain, 320 S.W.3d at 397).
In this case, Whitmire had a balance in his trust account of $20.34 when the underlying
cause was filed, and the average monthly balance in his account for the six-month period preceding
the suit was $43.64. The average monthly amount deposited into his account during that same
period was $77.59, and a total of $465.51 had been deposited into his account in the six months
preceding suit. Accordingly, because Whitmire had funds in his trust account, the trial court would
not have abused its discretion in dismissing Whitmire’s lawsuit on the basis that his indigence
affidavit contained a false allegation of poverty. 1 See Skinner v. Tex. Dept. of Crim. Justice
Correctional Inst. Div., No. 12-12-00091-CV, 2013 WL 543452, at *2-3 (Tex. App.—Tyler Feb.
13, 2013, no pet.) (mem. op.) (holding no abuse of discretion in dismissing inmate claim for false
allegation of poverty where account had average balance of $21.36 in six months preceding suit
and $440.00 had been deposited into account during prior six months); Donaldson, 355 S.W.3d at
725 (same where average monthly balance was $63.42 and deposits in six-month period totaled
1
Because we affirm the trial court’s order on this ground, we do not address the remaining grounds which could
support the trial court’s order. See TEX. R. APP. P. 47.1 (opinion should only address issues necessary for final
disposition of appeal).
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$1,020.00); Estrada v. Angleton Bail Bonds, No. 14-04-00166-CV, 2004 WL 1631125, at *2 (Tex.
App.—Houston [14th Dist.] July 22, 2004, no pet.) (mem. op.) (same where $350 had been
deposited into account over prior six month period).
CONCLUSION
The trial court’s order is affirmed.
Catherine Stone, Chief Justice
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