Ralph O. Douglas v. Government Employees Insurance Company, Unity National Bank, JPMorgan Chase Bank, N.A., as Acquirer of Certain Assets and Liabilities of Washington Mutual Bank, the Honorable Randy Roll, Dick Deguerin, and the Texas Court of Criminal Appeals
Order issued January 31, 2013
In The
Court of Appeals
For The
First District of Texas
NO. 01-12-00129-CV
____________
RALPH O. DOUGLAS, Appellant
V.
GOVERNMENT EMPLOYEES INSURANCE COMPANY, UNITY
NATIONAL BANK, JPMORGAN CHASE BANK, N.A., AS ACQUIRER OF
CERTAIN ASSETS AND LIABILITIES OF WASHINGTON MUTUAL
BANK, HONORABLE RANDY ROLL, DICK DEGUERIN, AND THE
TEXAS COURT OF CRIMINAL APPEALS, Appellees
On Appeal from the 125th District Court
Harris County, Texas
Trial Court Cause No. 2010-53065
MEMORANDUM ORDER
Appellant Ralph O. Douglas, an inmate, appeals an order dismissing his suit
against appellees, Government Employees Insurance Company, Unity National
Bank, JPMorgan Chase Bank, N.A., as Acquirer of Certain Assets and Liabilities of
Washington Mutual Bank, Honorable Randy Roll, Dick Deguerin, and the Texas
Court of Criminal Appeals, for failure to comply with Texas Civil Practice and
Remedies Code section 11.103(b) requiring appellant, who has been declared a
vexatious litigant, to obtain permission to file a lawsuit from the local
administrative judge. Appellant filed a notice of appeal and an affidavit of
indigence for appellate costs. Appellant challenges the trial court’s order sustaining
a contest to his indigence claim for appellate costs. See In re Arroyo, 988 S.W.2d
737, 739 (Tex. 1998).
We affirm the trial court’s order.
Standard of Review and Principles of Law
Texas Rule of Appellate Procedure 20.1 allows a party to proceed on appeal
without advance payment of costs1 if (1) the party files an affidavit of indigence in
compliance with the rule, (2) the indigence claim is either not contestable, is not
1
Rule 20.1(n) defines “costs” as the filing fee and the charges for preparing the
appellate record. TEX. R. APP. P. 20.1(n).
contested, or, if contested, the contest is not sustained by written order, and (3) the
party timely files a notice of appeal. See TEX. R. APP. P. 20.1(a)(2).2
Generally, the appellant must file the affidavit of indigence in the trial court
“with or before the notice of appeal.” TEX. R. APP. P. 20.1(c)(1). The affidavit
must identify the party filing the affidavit, state the amount of costs the party can
pay, if any, and present complete information about the party’s financial condition.
See TEX. R. APP. P. 20.1(b).
The trial court clerk, court reporter, or any interested party may file a contest
to the affidavit of indigence, but must do so within 10 days after the date the
affidavit is filed. TEX. R. APP. P. 20.1(e). Within 10 days after a contest is filed, the
trial court must either conduct a hearing or sign an order extending the time for the
hearing no more than 20 days from the date of the order. TEX. R. APP. P. 20.1(i)(2).
At the hearing on the contest, the appellant bears the burden to prove his
indigence by a preponderance of the evidence. Higgins v. Randall Cnty. Sheriff's
Office, 257 S.W.3d 684, 686 (Tex. 2008); see TEX. R. APP. P. 20.1(g); Arevalo v.
Millan, 983 S.W.2d 803, 804 (Tex. App.—Houston [1st Dist.] 1998, no pet.). If the
2
Civil Practice and Remedies Code section 13.003, “Free Transcript of Statement of Facts
on Appeal,” also establishes requirements for the provision of an appellate record without
cost to an appellant. See TEX. CIV. PRAC. & REM. CODE ANN. § 13.003 (West 2002).
Chapter 13 does not, however, apply to suits brought under Texas Civil Practice and
Remedies Code Chapter 14. See id. § 13.004. As of January 1, 2012, Chapter 14 applies
to an appeal brought by an inmate, in which the inmate has filed an affidavit of indigence,
as here. See TEX. CIV. PRAC. & REM. CODE ANN. § 14.002 (West Supp. 2012).
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party seeking to be declared indigent is incarcerated at the time of the hearing, as
here, the affidavit must be considered evidence and is sufficient to meet the indigent
party’s burden to present evidence without the party attending the hearing. TEX. R.
APP. P. 20.1(g)(1). The party contesting the affidavit then has the burden to offer
evidence to rebut what was established. See Griffin Indus., Inc. v. Hon. Thirteenth
Court of Appeals, 934 S.W.2d 349, 352 (Tex. 1996). “The test for determining
indigence is straightforward: ‘Does the record as a whole show by a preponderance
of the evidence that the applicant would be unable to pay the costs, or a part thereof,
or give security therefor, if he really wanted to and made a good-faith effort to do
so?’” In re C.H.C., 331 S.W.3d 426, 429 (Tex. 2011) (citing Higgins, 257 S.W.3d
at 686). Rule 20.1 is to be interpreted “liberally in favor of preserving appellate
rights.” See Higgins, 257 S.W.3d at 686.
Unless, within the period set for the hearing, the trial court signs an order
sustaining the contest, the affidavit’s allegations will be deemed true and the party
will be allowed to proceed without advance payment of costs. TEX. R. APP. P.
20.1(i)(4); see C.H.C., 331 S.W.3d at 429; Higgins, 257 S.W.3d at 688. When the
trial court sustains the contest to the appellant’s affidavit, the appellant may obtain
the record pertaining to the trial court’s ruling and may challenge that ruling as part
of his appeal. See Arroyo, 988 S.W.2d at 738–39.
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In addition to the requirements in Rule 20.1, Texas Civil Practice and
Remedies Code Chapter 14 imposes certain procedural requisites in an action
brought by a pro se inmate who has filed an affidavit or unsworn declaration of
inability to pay costs. See TEX. CIV. PRAC. & REM. CODE ANN. § 14.002 (West
Supp. 2012); Garrett v. Borden, 283 S.W.3d 852, 853 (Tex. 2009). Chapter 14, as
amended, applies to an appeal brought by an inmate. See TEX. CIV. PRAC. & REM.
CODE ANN. §.14.002 (defining scope of Chapter 14 as applying to “an action,
including an appeal or original proceeding, brought by an inmate in a district,
county, justice of the peace, or small claims court or an appellate court, including
the supreme court or the court of criminal appeals, in which an affidavit or unsworn
declaration of inability to pay costs is filed by the inmate.”).3
Section 14.004 requires an inmate who wishes to bring an action, now
defined as including an appeal, without paying a filing fee, to file an affidavit or
declaration identifying each suit he has previously brought, other than a suit under
the Family Code, in which he was not represented by an attorney. TEX. CIV. PRAC.
& REM. CODE ANN. § 14.004(a). For each suit, the inmate must state the operative
facts for which relief was sought, set forth the case name, cause number, and the
3
Prior to its amendment, effective for actions filed on or after January 1, 2012, Chapter 14
did not apply to appeals. See e.g., Jackson v. Tex. Bd. of Pardons & Paroles, 178 S.W.3d
272, 277 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (holding that appellant is not
required to comply with section 14.004(a)(1) to appeal); Nabelek v. Garrett, 94 S.W.3d
648, 649 (Tex. App.—Houston [14th Dist.] 2002, pet. dism’d w.o.j.) (holding that chapter
14 does not apply to appellate courts).
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court in which the suit was brought, identify each party named in the suit, and state
the result of the suit. Id. In determining whether a claim is frivolous or malicious, a
trial court may consider whether the claim is substantially similar to a previous
claim brought by the inmate that arises out of the “same operative facts.” TEX. CIV.
PRAC. & REM. CODE ANN. §.14.003(b)(4) (West 2002). If an inmate files an
affidavit or declaration that does not comply with the requirements of Section
14.004, “the trial court is entitled to assume that the suit is substantially similar to
one previously filed by the inmate, and therefore, frivolous.” Bell v. Tex. Dep’t of
Criminal Justice, 962 S.W.2d 156, 158 (Tex. App.—Houston [14th Dist.] 1998, pet.
denied).
Section 14.006(f), requires the inmate to file a certified copy of his inmate
trust account statement with the trial court. TEX. CIV. PRAC. & REM. CODE ANN.
§.14.006(f) (West 2002). The statement must “reflect 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.” Id.
We review the trial court’s order finding that appellant is not indigent under
an abuse of discretion standard. White v. Bayless, 40 S.W.3d 574, 576 (Tex.
App.—San Antonio 2001, pet. denied). The trial court abuses its discretion if it acts
6
without reference to any guiding rules or principles or in an arbitrary or
unreasonable manner. Id.
Discussion
The district clerk’s record on indigence reflects that appellant filed his
affidavit of indigence with his notice of appeal. See TEX. R. APP. P. 20.1(a)(2)(A),
(c)(1). In his affidavit, appellant generally addresses the factors required by Texas
Rule of Appellate Procedure 20.1(b). See TEX. R. APP. P. 20.1(b). Appellant attests
that he is “unable to pay any of the costs or give security for this action.” Appellant
avers, inter alia, that he is an inmate; has no source of income, other than an
allowance of $150 per month from his family; that he has no spousal income; owns
no property or assets; has no debt or expenses; cannot obtain a loan; and that no
attorney has agreed to pay or advance the costs of his appeal. The district clerk
timely contested appellant’s affidavit of indigence, asserting that appellant had not
complied with Rule of Appellate Procedure 20.1 or Civil Practice and Remedies
Code sections 14.004 or 14.006. See TEX. R. APP. P. 20.1(e).
We cannot conclude that the trial court abused its discretion by sustaining the
district clerk’s contest because appellant did not comply with the statutory
requirements in Chapter 14 for proceeding on appeal without costs. See TEX. CIV.
PRAC. & REM. CODE ANN. § 14.002 (defining scope of Chapter 14 as applying to an
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appeal by an inmate in which an affidavit or unsworn declaration of inability to pay
costs is filed). Appellant did not, in conjunction with filing his affidavit of
indigence, file an affidavit or declaration identifying each suit he has previously
brought, pursuant to section 14.004. See TEX. CIV. PRAC. & REM. CODE ANN.
§.14.004. Because appellant has been declared a vexatious litigant, we cannot
presume that no other suits exist. In addition, nothing before us reflects that
appellant filed a certified copy of his inmate trust account with his affidavit of
indigence. See TEX. CIV. PRAC. & REM. CODE ANN. § 14.006.
Accordingly we hold that the district court did not abuse its discretion in
sustaining the district clerk’s contest to appellant’s affidavit of indigence, in which
the district clerk complained that appellant had not complied with the statutory
requirements in sections 14.004 and 14.006. See Arevalo, 983 S.W.2d at 805.
Because appellant has not established indigence, we ORDER that, unless
appellant pays the filing fee for this appeal within 10 days from the date of this
order, the appeal will be dismissed. See TEX. R. APP. P. 5, 42.3(b), (c). In addition,
unless appellant files in this Court, no later than 30 days from the date of this order,
proof that he has paid, or has made arrangements to pay, the fee for preparing the
clerk’s record, the appeal will be dismissed. See TEX. R. APP. P. 37.3, 42.3(b), (c).
PER CURIAM
Panel consists of Justices Jennings, Bland, and Massengale.
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