Richard A. Dunsmore v. Tammy Shelby

Appeal Dismissed and Memorandum Opinion filed November 17, 2015.

In The

Fourteenth Court of Appeals

NO. 14-15-00573-CV

RICHARD A. DUNSMORE, Appellant
V.
TAMMY SHELBY, ET AL, Appellee

On Appeal from the 412th District Court
Brazoria County, Texas
Trial Court Cause No. 80821-I

MEMORANDUM OPINION
Appellant Richard Dunsmore, an inmate incarcerated in the Texas
Department of Criminal Justice, challenges the trial court’s dismissal of his civil
action against appellees, Tammy Shelby et al. Because we conclude Dunsmore
failed to comply with the requirements of Chapter 14 of the Texas Civil Practice
and Remedies Code on appeal, we dismiss his appeal.

On June 17, 2015, the trial court signed a final judgment. On July 2, 2015,
Dunsmore filed a timely notice of appeal and an affidavit in support of his request
to proceed as indigent in this court. Dunsmore’s affidavit fails to comply with
section 14.004(a) of the Texas Civil Practice and Remedies Code, which states:

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 under Section 13.001 or
Section 14.003 or otherwise.
Tex. Civ. Prac. & Rem. Code Ann. § 14.004 (West Supp. 2013).

Chapter 14 of the Civil Practice and Remedies Code governs inmate
litigation when the inmate claims inability to pay costs. In its 2011 session, the
Texas Legislature amended Chapter 14; the amendments to Chapter 14 became
effective January 1, 2012. As amended, Chapter 14 now applies 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.” Id.
§ 14.002(a). “This means that the requirements of Chapter 14 apply when inmates
file an appeal or an original proceeding in the appellate court the same as when
they file actions in the district, county, and justice courts.” Douglas v. Moffett, 418
S.W.3d 336, 339 (Tex. App.—Houston [14th Dist.] 2013, no pet.).

When an inmate litigant files an affidavit or unsworn declaration of inability
to pay costs, Chapter 14 requires the inmate to file an additional affidavit or

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declaration setting forth specific details on all previous actions filed pro se, other
than a suit brought under the Texas Family Code. Tex. Civ. Prac. & Rem. Code
Ann. § 14.004(a); Moffett, 418 S.W.3d at 339. Because the inmate’s list of
previous filings may change between the time the suit and appeal are brought, we
have concluded, as other courts of appeals have, that the decisions interpreting
these requirements of Chapter 14 at the trial court stage generally apply to appeals
and original proceedings brought in an appellate court on or after January 1, 2012.
Moffett, 418 S.W.3d at 340; see Tex. Civ. Prac. & Rem. Code Ann. § 14.002(a).

Dunsmore filed his notice of appeal and an affidavit of indigence. But he did
not file on appeal the required additional affidavit or unsworn declaration of
previous filings. Tex. Civ. Prac. & Rem. Code Ann. §§ 14.002(a), 14.004(a).

On October 5, 2015, notification was transmitted to the parties of this court’s
intention to dismiss the appeal for failure to comply with Chapter 14 of the Civil
Practice and Remedies Code unless Dunsmore complied with Chapter 14 on or
before October 19, 2015. See Tex. R. App. P. 42.3(a). Dunsmore’s response does
not identify or give details about his previous pro se actions.

Because the requirements of Chapter 14 of the Texas Civil Practice and
Remedies Code now apply to inmate proceedings in appellate courts, and
Dunsmore did not comply with those requirements on appeal, we dismiss his
appeal. See Moffett, 418 S.W.3d at 341.

PER CURIAM

Panel consists of Justices Boyce, Busby, and Brown.

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