in Re Alvie Robinson

IN THE
TENTH COURT OF APPEALS
No. 10-14-00102-CV
EX PARTE N.C.
_____________
From the 12th District Court
Walker County
Trial Court No. 26744
________________________________________________________________
No. 10-14-00153-CV
IN RE ALVIE ROBINSON
_____________
Original Proceeding
________________________________________________________________
No. 10-14-00191-CV
BRENT ALAN MCLEAN, Appellant
v.
BRAD LIVINGSTON, ET AL, Appellee
From the 18th District Court
Johnson County, Texas
Trial Court No. C201400101
OPINION ON REHEARING
A motion for rehearing has been filed in each of these three proceedings. Each
person who filed each of the three proceedings is an indigent inmate representing
himself in the proceeding. Each proceeding was summarily dismissed because the
inmate failed to comply with the basic requirements of Texas Civil Practice and
Remedies Code Chapter 14 to file the proceeding. In this opinion on rehearing, we
address the issue of whether we should reinstate each proceeding and thus circumvent
the purpose of the statute. We deny each motion for rehearing.
In a special session in 2011, the legislature passed, and the Governor signed, a
bill with the caption: “AN ACT relating to fiscal and other matters necessary for
implementation of the judiciary budget as enacted by H.B. No. 1, Acts of the 82nd
Legislature, Regular Session, 2011, and to the operation and administration of, and
practice and procedures in courts in, the judicial branch of state government.” Acts
2011, 82nd Leg., 1st C.S., ch. 3 (H.B. 79), § 12.01 (effective January 1, 2012). As indicated
by the caption, the bill included provisions that were designed to have an impact on the
cost of operating the judicial branch. Included in that bill was a provision that clearly
and specifically added proceedings filed in the appellate courts to the litigation being
filed by inmates which would be summarily dismissed by the appellate court if the
inmate failed to comply with the requirements of Chapter 14 of the Texas Civil Practice
and Remedies Code. The bill became effective on January 1, 2012. See Acts 2011, 82nd
Leg., 1st C.S., ch. 3 (H.B. 79), § 12.01 (effective January 1, 2012).
After the change in the statute occurred but prior to its effective date, we
endeavored to warn the inmate population of this statutory change. See Altschul v.
TDCJ - Inmate Trust Fund Div., No. 10-11-00084-CV, 2012 Tex. App. LEXIS 2025, *3 (Tex.
Ex parte N.C., In re Robinson, and McLean v. Livingston Page 2
App.—Waco Mar. 14, 2012, pet. denied) (mem. op.) ("Section 14.002 has also been
amended to make clear that such an affidavit is also required if the new action is filed in
a court of appeals."). After a period of time, we began to dismiss proceedings without
notice and opportunity to cure the defect, see Douglass v. Turner, 441 S.W.3d 337 (Tex.
App.—Waco 2013, no pet.); but later added a footnote explaining that a motion for
rehearing or a petition for review could be filed and specified the timetable for doing
either. See Reed v. Ford, No. 10-13-00279-CV, 2013 Tex. App. LEXIS 11888 (Tex. App.—
Waco Sept. 19, 2013, no pet.) (mem. op.). During this extended time period, we would
grant the motion for rehearing and reinstate the appeal if the inmate corrected the
deficiency at the time the motion for rehearing was filed. See e.g. Atkins v. Herrera, Nos.
10-13-00283-CV & 10-13-00284-CV, 2013 Tex. App. LEXIS 12385 (Tex. App.—Waco Oct.
3, 2013) (mem. op.) (withdrawn by order issued Feb. 6, 2014) (not designated for
publication).
We took these steps during the first three years of implementing this statutory
amendment to allow news of the change to be more widely disseminated within the
inmate population. Maybe we were wrong to be so lax when the purpose of the
amended legislation was to prevent the expenditure of scarce judicial resources on
frivolous proceedings filed by inmates, thus allowing the appellate courts to focus
limited resources on proceedings that merited review, including those filed by other
inmates who had fulfilled the minimal statutory requirements to file a proceeding in the
appellate court.
Ex parte N.C., In re Robinson, and McLean v. Livingston Page 3
We have expended judicial resources during this lengthy implementation period
that were not required to be expended under a straight forward application of the
statute. The statute is not difficult for an inmate to comply with. These same
procedures have been required in trial courts since 1995. Nevertheless, failure to
comply with this same statute in proceedings filed in trial courts continues to be a
common reason for those cases to be dismissed—years after the statute was made
applicable to inmate filings in the trial courts.
It is now over three years after the effective date of the statutory amendments
that added these requirements to actions filed in the appellate courts. The number of
deficient inmate filings, nevertheless, seems to be increasing rather than decreasing.
These three proceedings are examples of the problem as each suffers from the same
deficiency: failure to comply with the simple requirements of the statute to file the
proceeding. Maybe we were overly optimistic in our initial assessment that inmates
would learn of the minimum requirement to file appellate proceedings as indigent
inmates representing themselves.
Additionally, our experience in those proceedings in which a motion for
rehearing was granted has confirmed the need for a more rigorous application of the
statute as written and interpreted by case law. For example, a case was dismissed in
October of 2013 and reinstated after a motion for rehearing was granted in March of
2014. After three months of the inmate insisting that a reporter’s record be filed, and
after numerous hours of court resources being expended, the Court discovered that the
Ex parte N.C., In re Robinson, and McLean v. Livingston Page 4
inmate had requested the reporter’s records for hearings held in 1988, 1989, and 1990
that were no longer available and had not requested a reporter’s record from any
hearing pertaining to the order at issue in the appeal. The inmate finally submitted a
brief on the clerk’s record alone in October of 2014, a full year after the case was
originally and properly dismissed, and the case remains pending, awaiting a brief filed
by the State. See Keeter v. State, No. 10-13-00310-CV.
Three years of education about the statutory requirements is long enough. The
statute clearly authorizes this Court to summarily dismiss a proceeding that does not
comply with the statute when it is filed. If the intended benefits of the statute are to be
realized, we must be willing to require the inmate to comply with the statute or suffer
the consequences of the failure to comply. Accordingly, we deny the motions for
rehearing.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
(Justice Davis dissenting)
Motions denied
Order issued and filed January 22, 2015
Ex parte N.C., In re Robinson, and McLean v. Livingston Page 5