in Re Yates

Opinion issued December 8, 2011

In The

Court

of Appeals

For The

First District of Texas

————————————

NO. 01-09-00031-CV

———————————

In RE JEFFREY YATES , Appellant

On

Appeal from the 113th District Court

Harris

County, Texas

Trial

Court Cause No. 2008-44159

MEMORANDUM OPINION

A jury acquitted appellant Jeffrey

Yates of the offense of “Disorderly Conduct–Peeping.” See Tex. Penal Code Ann . §

42.01 (Vernon Supp. 2011). Yates

filed a “Petition for Expunction,” in which he asked the trial court to “order

the expunction of all records and files arising out of the charge” that may be

on file with certain agencies. [1] The trial court dismissed the suit, and Yates

appealed. We affirm the trial court’s judgment, as modified.

Background

On April 10, 2001, Yates, an inmate

confined at the Texas Department of Criminal Justice, was acquitted of the

offense of disorderly conduct. On July

7, 2008, Yates filed a pro se petition, seeking to expunge the matter from the

records of certain named entities. [2] In his petition, Yates asserted that he was

unable to pay the trial court costs, as follows:

Pursuant to the [Texas Rules of Civil

Procedure] and Title 6, Chap. 132 of the [Civil Practice and Remedies Code], I

declare that I am unable to pay any costs in this matter; I have no control or

ownership of any assets, property, or cash; have been incarcerated since June

19, 2002; and have no attorney assistance.

On October 6, 2008, the trial court

issued an order stating that Yates’s “Motion for [l]eave to proceed in forma

pauperis” was denied. Two weeks later,

on October 20, 2008, Yates filed a second motion to proceed in forma pauperis

and an affidavit of indigence, on which the trial court did not rule. On December 18, 2008, the trial court

dismissed the suit, without stating specific grounds.

Standard of Review

We review the trial court’s

dismissal of an in forma pauperis suit under an abuse of discretion

standard. Scott v. Gallagher , 209 S.W.3d 262, 265 (Tex. App.—Houston [1st

Dist.] 2006, no pet.). A trial court

abuses its discretion if it acts arbitrarily, capriciously, and without

reference to any guiding rules or principles. Jackson

v. Tex. Bd. of Pardons & Paroles , 178 S.W.3d 272, 275 (Tex. App.—Houston

[1st Dist.] 2005, no pet.).

The trial courts are given broad

discretion to determine whether a suit brought by an inmate should be dismissed

because (1) prisoners have a strong incentive to litigate; (2) the government

bears the cost of an in forma pauperis suit; (3) sanctions are not effective;

and (4) the dismissal of unmeritorious claims accrues to the benefit of state

officials, courts, and meritorious claimants. See Williams v. Tex. Dep’t of Criminal Justice , 176 S.W.3d 590, 593

(Tex. App.—Tyler 2005, pet. denied). When

a trial court does not state the basis for its dismissal, we will affirm the

dismissal if it is proper under any legal theory. Walker

v. Gonzales Cnty. Sheriff’s Dep’t , 35 S.W.3d 157, 162 (Tex. App.—Corpus Christi

2000, pet. denied).

Legal Principles

A party who is unable to afford

trial court costs may file an affidavit of indigence that conforms with the

requirements of Rule 145 of the Texas Rules of Civil Procedure. Tex. R.

Civ. P. 145(a), (b). An inmate

who brings a suit in which he has filed an affidavit of indigence or an unsworn

declaration of inability to pay costs must also comply with the procedural

requirements set forth in Texas Civil Practice and Remedies Code Chapter

14. Tex.

Civ. Prac. & Rem. Code Ann . § 14.002(a) (Vernon Supp. 2011); Scott , 209 S.W.3d at 265 .

Civil Practice and Remedies Code sections

14.004 and 14.006 require that an inmate file in the trial court, along with

his affidavit of indigence or unsworn declaration of inability to pay costs, a

certified copy of his inmate trust account statement. Tex.

Civ. Prac. & Rem. Code Ann . §§ 14.004(c) (Vernon Supp. 2011),

14.006(f) (Vernon 2002). Section 14.006(f)

requires that the inmate file a statement that “reflect[s] 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).

“A prisoner at a Texas Department

of Criminal Justice [facility] who has no money or property is considered

indigent.” McClain v. Terry , 320 S.W.3d 394, 397 (Tex. App.—El Paso 2010, no

pet.) (citing Allred v. Lowry , 597 S.W.2d

353, 355 (Tex. 1980)). However, “[a]n

inmate who has funds in his trust account is not indigent.” Id. (citing

Tex. Civ. Prac. & Rem. Code Ann.

§ 14.006(b)(1)). An inmate’s trust

funds may be utilized for payment of costs. Id.

Failure to fulfill the Chapter 14

procedural requirements may result in the dismissal of the inmate’s suit before

or after service of process. See Tex.

Civ. Prac. & Rem. Code Ann. § 14.003(a)(1), 14.006(h) (Vernon

2002); Scott , 209 S.W.3d at 265 (“A

trial court may dismiss an inmate’s lawsuit for failing to comply with the

procedural requirements of Chapter 14.”); Bell

v. Texas Dep’t of Criminal Justice , 962 S.W.2d 156, 158 (Tex. App.—Houston

[14th Dist.] 1998, pet. denied)).

Dismissal

The record before us does not

reflect that Yates filed a certified copy of his inmate trust account statement

with his declaration of inability to pay costs in the trial court, as required.

See

Tex. Civ. Prac. & Rem. Code Ann.

§ 14.004(c), 14.006(f). The requirement

to file a statement of the inmate trust account is mandatory, and Yates’s

failure to file the statement is sufficient grounds for the trial court’s

dismissal of his suit. See id.

§ 14.003(a); Williams v. Brown ,

33 S.W.3d 410, 412 (Tex. App.—Houston [1st Dist.] 2000, no pet.); see also Jedkins v. Varghese , No.

14-08-00895-CV, 2009 WL 5149877 , at *2 (Tex. App.—Houston [14th Dist.] Dec. 31,

2009, no pet.) (mem.op., not designated for publication) (“Chapter 14 does not

provide an inmate with the right to file a suit without the trust account

statement, no matter the reason that the inmate has not provided it.”).

Yates complains that the trial

court did not rule on his second affidavit of indigence, which he filed October

20, 2008. The record reflects, however,

that the trial court had just days before, on October 6, 2008, ruled on Yates’s

first declaration of indigence. See

Tex. Civ. Prac. & Rem.Code Ann . § 14.004(c) (allowing unsworn

declaration of inability to pay costs). In his brief on appeal, appellant acknowledges

that his first “request to proceed without costs contained in [the] Petition

was recognized by the trial court.”

Moreover, the record reflects that Yates also failed to attach a copy of

his inmate trust account to his second affidavit of indigence. After the trial court’s dismissal, appellant

filed a statement of his inmate trust account in conjunction with his affidavit

of indigence for costs on appeal .

In addition, appellant complains

that the trial court failed to notify him of a deficiency in his declaration of

inability to pay costs prior to dismissing his suit. Because a trial court may dismiss a suit that

fails to comply with Chapter 14 either before or after service of process and

without a hearing, a trial court has no duty to suggest or recommend that an appellant

amend his pleading. See Tex. Civ. Prac. &

Rem. Code Ann. § 14.003(c); Hickman

v. Adams , 35 S.W.3d 120, 125 (Tex.

App.—Houston [14th Dist.] 2000, no pet.).

Because the trial court did not

specify the grounds for dismissal, we will affirm the decision if any theory is

meritorious. See Walker , 35 S.W.3d at 162 . Because

Yates failed to file a certified copy of his inmate trust account statement

with his declaration of inability to pay costs in the trial court, as required,

we hold that the trial court did not abuse its discretion by dismissing Yates’s

suit. See Tex. Civ. Prac. &

Rem.Code Ann . § 14.004(c), 14.006(f); Brown , 33 S.W.3d at 412 .

Accordingly, we overrule

appellant’s issue.

The dismissal order does not,

however, state whether the dismissal is with or without prejudice. “Dismissal with prejudice constitutes

adjudication on the merits and operates as if the case had been fully tried and

decided.” Brown , 33 S.W.3d at 412 (quoting Lentworth v. Trahan , 981 S.W.2d 720, 722 (Tex. App.—Houston [1st

Dist.] 1998, no pet.)). In the present

case, dismissal without prejudice is proper.

We modify the judgment to reflect that the cause is dismissed “without

prejudice.”

Conclusion

As modified, the judgment is

affirmed. We dismiss pending motions as moot.

PER CURIAM

Panel

consists of Justices Jennings, Sharp, and Brown.

[1]

Appellant

named the Texas Department of Public Safety; the Harris County District Clerk;

the Harris County Pct. 4 Constable; the Texas Department of Criminal Justice;

the Federal Bureau of Investigations; the Harris County Sheriff’s Office; the

Clerk of the Court; Texas Board of Pardons and Paroles; and the Texas

Department of Criminal Justice.

[2] Id.