IN THE
TENTH COURT OF APPEALS
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
DISSENTING OPINION ON REHEARING
In a memorandum opinion, we dismissed the appeal of Appellant Brent Alan
McLean, a pro se state-prison inmate, because he failed to comply with Chapter 14 by
not filing an affidavit or declaration “relating to previous filings” or a certified copy of
his inmate account statement. McLean v. Livingston, No. 10-14-00191-CV, 2014 WL
3559279 (Tex. App.—Waco July 17, 2014, no pet. h.); TEX. CIV. PRAC. & REM. CODE ANN.
§ 14.004(a), (c) (West Supp. 2014) (requiring inmate to file affidavit or declaration
“relating to previous filings,” accompanied by certified copy of inmate’s account
statement).
In a footnote, we noted the timetable for McLean to file a motion for rehearing,
essentially inviting him to cure his deficiencies so that his appeal might be reinstated.
McLean, 2014 WL 3559279, at *1, n.1. McLean did just that; he filed a motion for
rehearing and an amended notice of appeal that included his declaration of previous
filings and a certified copy of his inmate account statement. Despite McLean’s curing
his deficiencies, the majority now denies McLean’s motion for rehearing.
Plainly, Chapter 14 now applies to appeals and original proceedings. TEX. CIV.
PRAC. & REM. CODE ANN. § 14.002(a) (West Supp. 2014); Douglas v. Turner, 441 S.W.3d
337, 338 (Tex. App.—Waco 2013, no pet.). But until now, we have been consistently
allowing inmates to cure their Chapter 14 deficiencies on rehearing and granting their
motions for rehearing after, as we had in this case, essentially invited them to do so.1
E.g., Atkins v. Herrera, No. 10-13-00283-CV (Tex. App.—Waco Feb. 6, 2014, order) (not
designated for publication); Keeter v. State, No. 10-13-00310-CV (Tex. App.—Waco Mar.
13, 2014, order) (not designated for publication); Mahuron v. TDCJ, No. 10-14-00116-CV
(Tex. App.—Waco Aug. 14, 2014, order) (not designated for publication); see also Reed v.
Ford, No. 10-13-00279-CV, 2013 WL 5290112, at *2, n.2 (Tex. App.—Waco Sept. 19, 2013,
no pet.) (including same footnote with deadline for motion for rehearing).
1
I now believe that the correct and the more judicially efficient practice would be to notify the appellant
of the section 14.004 deficiency and allow the appellant an opportunity to cure before dismissal. See TEX.
R. APP. P. 44.3; Higgins v. Randall County Sheriff's Office, 193 S.W.3d 898 (Tex. 2006); Verburgt v. Dorner, 959
S.W.2d 615, 616-17 (Tex. 1997).
McLean v. Livingston Page 2
Moreover, in the trial court, an inmate can correct a section 14.004 deficiency by
amendment on rehearing. See Brown v. Lubbock Cty. Comm’rs Ct., 185 S.W.3d 499, 503
(Tex. App.—Amarillo 2005, no pet.). Because the majority in this appeal denies McLean
the opportunity to correct his section 14.004 deficiency on rehearing, I respectfully
dissent to the denial of his motion for rehearing.
REX D. DAVIS
Justice
Delivered and filed January 22, 2015
McLean v. Livingston Page 3