Opinion issued September 25, 2003
In The
Court of Appeals
For The
First District of Texas
NO. 01-03-00303-CV
____________
ELROY GREEN, Appellant
V.
RICHARD GUNNELS, SOPHIA HICKS, CHRISTOPHER ELMER, WESLEY WOOLEY, AMY JOHNSTON, AND SHENELL LEWIS, Appellees
On Appeal from the 12th District Court
Walker County, Texas
Trial Court Cause No. 21,896
MEMORANDUM OPINION
Appellant, Elroy Green, an inmate of the Texas Department of Criminal Justice–Institutional Division (TDCJ–ID), proceeding pro se and in forma pauperis, challenges the trial court’s order dismissing, as frivolous, the lawsuit appellant brought against appellees after some of appellant’s property was confiscated and not returned to him. Appellees are prison guards at the TDCJ–ID unit where appellant was incarcerated.
In two issues, appellant contends that the trial court’s ruling was in error because appellant (1) complied with all applicable requirements of Chapter 14 of the Texas Civil Practice and Remedies Code (the Code) and (2) exhausted all administrative grievance proceedings before filing suit. We affirm.
Facts and Procedural Background
In his original petition, appellant alleged that, in March 2002, a radio and a pair of shoes were confiscated from him by appellees while appellant was placed in “lock up” detention for a rule violation committed during his incarceration. When appellant was released to return to his cell, his property was not returned to him.
Appellant subsequently filed a grievance to obtain the return of his property. In response to appellant’s grievance, prison officials informed appellant in writing as follows:
Your complaint has been reviewed by this office. Your claim is denied because proof of ownership of the radio, shoes, and other miscellaneous property could not be verified. The registration papers you provided could not be validated and will not be returned to you. No action is warranted on your behalf.
Appellant filed suit asserting a claim of gross negligence against the guards that he alleged took, or participated in the confiscation of, his property. The State filed an answer and an amicus brief on behalf of appellees. The trial court subsequently dismissed appellant’s claims as frivolous.
Standard of Review
We review a dismissal under Chapter 14 for an abuse of discretion by the trial court. Clark v. Unit, 23 S.W.3d 420, 421 (Tex. App.—Houston [1st Dist.] 2000, pet. denied). A trial court abuses its discretion if it acts arbitrarily, capriciously, or without reference to guiding principles or rules. Id.
Compliance with Chapter 14
In its amicus brief to the trial court, the State argued that appellant had failed to comply with section 14.004(a) of the Code, which requires inmates proceeding in forma pauperis to file an affidavit or declaration detailing all previous lawsuits. The record indicates that appellant filed no such affidavit.
Section 14.004(a) provides, in relevant part, as follows:
An inmate who files an affidavit or unsworn declaration of inability to pay costs shall file a separate affidavit or declaration:
(1)identifying each suit, other than a suit under the Family Code, previously brought by the person and in which the person was not represented by an attorney, without regard to whether the person was an inmate at the time the suit was brought; and
(2)describing each suit that was previously brought by:
(A)stating the operative facts for which relief was sought;
(B)listing the case name, cause number, and the court in which the suit was brought;
(C)identifying each party named in the suit; and
(D)stating the result of the suit, including whether the suit was dismissed as frivolous or malicious . . . or otherwise.
Tex. Civ. Prac. & Rem. Code Ann. § 14.004(a) (Vernon 2002).
The purpose of section 14.004 is to deter duplicative inmate litigation by requiring inmates to inform the trial court of previous litigation and the outcome. Clark, 23 S.W.3d at 421. In the absence of an affidavit complying with the requirements of section 14.004, a trial court may assume the lawsuit is substantially similar to previous litigation and is, therefore, frivolous. Bell v. Tex. Dep’t of Criminal Justice–Inst. Div., 962 S.W.2d 156, 158 (Tex. App.—Houston [14th Dist.] 1998, pet. denied).
In his first issue, appellant argues that he is not in violation of the requirements of section 14.004(a) because he “sent in an unsworn declaration at the time of filing the suit and the [trial] court granted his in forma pauperis [sic] and therefore on its face did not find any violation . . . .” However, although the record reflects that the trial court did permit appellant to proceed in forma pauperis in this lawsuit, there is no indication that appellant filed a separate affidavit detailing his previous litigation history, if any, as required by section 14.004(a).
Appellant also argues that the trial court’s dismissal of his claims was improper because appellant has never filed any previous lawsuits. In support of this assertion, appellant has attached to his brief an “Affidavit of No Suit,” in which he states, in part, that he has “never filed and [sic] other lawsuit, this is my first time filing a suit.” However, the record indicates that this affidavit was not presented to the trial court, and we cannot consider documents attached to briefs that do not appear in the trial court record. Till v. Thomas, 10 S.W.3d 730, 733 (Tex. App.—Houston [1st Dist.] 1999, no pet.).
Finally, appellant argues that, because he is “a neophyte in the law,” he should not be held to the same standards as a licensed attorney. We note that pro se litigants are held to the same standards as attorneys and must comply with all applicable and mandatory rules of procedure. See, e.g., Kindley v. State, 879 S.W.2d 261, 264 (Tex. App.—Houston [14th Dist.] 1994, no pet.).
Accordingly, we hold that the trial court did not abuse its discretion in dismissing appellant’s suit. We overrule appellant’s first issue. Because of our disposition of this issue, we need not consider the merits of appelant’s second issue.
Conclusion
We affirm the judgment of the trial court. All pending motions are denied.
Terry Jennings
Justice
Panel consists of Justices Taft, Jennings, and Hanks.