NUMBER 13-18-00104-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
SALVADOR ZAVALA, Appellant,
v.
JANET SALLES, JENNIFER SMITH,
AND SHARON RUIZ, Appellees.
On appeal from the 343rd District Court
of Bee County, Texas.
MEMORANDUM OPINION
Before Justices Contreras, Longoria, and Hinojosa
Memorandum Opinion by Justice Contreras
Appellant, Salvador Zavala, appeals the trial court’s order dismissing with
prejudice the underlying lawsuit against appellees Janet Salles, Jennifer Smith, and
Sharon Ruiz for failure to comply with chapter 14 of the Texas Civil Practice and
Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. § 14.010(a) (West, Westlaw
through 2017 1st C.S.). In one issue, Zavala contends that the trial court improperly
dismissed Zavala’s claims with prejudice prior to service of process and without holding
a hearing. We affirm.
I. BACKGROUND
Zavala is a Texas Department of Criminal Justice inmate at the McConnell Unit in
Beeville, Texas. On June 29, 2017, he sued appellees regarding an incident where
Zavala alleges he mailed 144 photos to a civilian who refused delivery of them, and the
photos were seized upon their April 5, 2017 return to the McConnell Unit. Zavala brought
claims of fraud, breach of contract, theft, conversion, and a violation of his Fourteenth
Amendment right to Equal Protection, and he attached a declaration of his inability to pay
costs. On August 24, 2017, the Office of the Attorney General filed an Amicus Curiae
Motion to Dismiss. On February 6, 2018, the trial court dismissed this case for failure to
comply with Chapter 14. This appeal followed.
II. DISCUSSION
In Zavala’s sole issue, he contends that the trial court improperly dismissed
Zavala’s claims with prejudice prior to service of process and without holding a hearing.
A. Applicable Law and Standard of Review
We review a trial court’s dismissal of a claim pursuant to chapter 14 under an
abuse of discretion standard. Wanzer v. Garcia, 299 S.W.3d 821, 827 (Tex. App.—San
Antonio 2009, pet. denied); Scott v. Menchaca, 185 S.W.3d 543, 545 (Tex. App.—Corpus
Christi 2006, no pet.). The trial court abuses its discretion if it acts arbitrarily,
unreasonably, or without reference to any guiding rules and principles. Downer v.
Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985); McClain v. Terry, 320
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S.W.3d 394, 397 (Tex. App.—El Paso 2010, no pet.). “The mere fact that a trial judge
may decide a matter within his discretionary authority in a different manner than an
appellate judge in a similar circumstance does not demonstrate that an abuse of
discretion has occurred.” Downer, 701 S.W.3d at 242; see Hickson v. Moya, 926 S.W.2d
397, 399 (Tex. App.—Waco 1996, no writ). “Because the trial court did not specify the
grounds for dismissal, we will affirm the decision if any theory is meritorious.” McClain,
320 S.W.3d at 398.
Chapter 14 of the Texas Civil Practice and Remedies Code governs lawsuits
brought by an inmate in which the inmate has filed an affidavit or unsworn declaration of
inability to pay costs. See TEX. CIV. PRAC. & REM. CODE ANN. § 14.002(a) (West, Westlaw
through 2017 1st C.S.); Donaldson v. Tex. Dep’t of Crim. Justice-Corr. Inst. Div., 355
S.W.3d 722, 724 (Tex. App.—Tyler 2011, pet. denied); In re Simmonds, 271 S.W.3d 874,
876 (Tex. App.—Waco 2008, orig. proceeding). A trial court has the discretion to dismiss
an inmate’s lawsuit if the allegation of poverty in the indigence affidavit is false. TEX. CIV.
PRAC. & REM. CODE ANN. § 14.003(a)(1) (West, Westlaw through 2017 1st C.S.).
To enable the trial court to determine whether an inmate is indigent, the inmate is
required to file a certified copy of his inmate trust account “reflect[ing] 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. § 14.006(f) (West, Westlaw through
2017 1st C.S.). An inmate at the TDCJ–ID “who has no money or property is considered
indigent.” Donaldson, 355 S.W.3d at 725; McClain, 320 S.W.3d at 397. “However, ‘[a]n
inmate who has funds in his trust account is not indigent.’” Donaldson, 355 S.W.3d at
725 (quoting McClain, 320 S.W.3d at 397); but see Leachman v. Stephens, No. 02-13-
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00357-CV, 2016 WL 6648747, at *12 (Tex. App.—Fort Worth Nov. 10, 2016, pet. denied)
(noting that “[c]omplete destitution is not a prerequisite to establishing indigence” and
rejecting appellees’ argument that “only inmates with no money are considered indigent”).
A dismissal with prejudice is a ruling on the merits and is therefore improper if the
trial court’s dismissal is based on procedural defects that the inmate can remedy. See
Garrett v. Williams, 250 S.W.3d 154, 160 (Tex. App.—Fort Worth 2008, no pet.); Hickman
v. Adams, 35 S.W.3d 120, 125 (Tex. App.—Houston [14th Dist.] 2000, no pet.) (holding
that dismissal under section 14.004 is not dismissal on the merits and thus trial court
abuses its discretion if it dismisses with prejudice a claim where procedural defect can be
remedied). However, if the trial court’s dismissal is based on the conclusion that the
inmate’s claim has no arguable basis in law, then a dismissal with prejudice is proper.
See Nabelek v. Dist. Att’y of Harris Cnty., 290 S.W.3d 222, 233 (Tex. App.—Houston
[14th Dist.] 2005, pet. denied).
B. Analysis
In this case, Zavala’s account statement shows total deposits of $607.80 over the
last six months, a six-month average balance of $40.76, and six-month average monthly
deposits of $101.30, with a final balance of $56.44 at the time suit was filed. Accordingly,
since Zavala had funds in his trust account, the trial court did not abuse its discretion in
dismissing Zavala’s lawsuit on the basis that his indigence affidavit contained a false
statement of poverty. See Donaldson, 355 S.W.3d at 725 (holding no abuse of discretion
in dismissing inmate claim for false allegation of poverty where average monthly balance
was $63.42 and deposits in six-month period totaled $1,020.00); see also Zavala v.
Matthew, No. 13-17-00009-CV, 2018 WL 286257, at *2 (Tex. App.—Corpus Christi Jan.
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4, 2018, pet. denied) (mem. op.) (holding same where account had zero balance as of
date of account statement, but six-month average balance was $33 and six-month
average monthly deposits were $75.33); Whitmire v. Guerra, No. 04–13–00477–CV, 2014
WL 235210, at *2 (Tex. App.—San Antonio Jan. 22, 2014, pet. denied) (mem. op.)
(holding same where account had $20.34 when the underlying cause was filed, the six-
month average monthly balance was $43.64, the six-month average monthly amount
deposited was $77.59, and a total of $465.51 had been deposited into the account in the
six months preceding suit); Skinner v. Tex. Dep’t of Crim. Justice Corr. Inst. Div., No. 12–
12-00091-CV, 2013 WL 543452, at *2–3 (Tex. App.—Tyler Feb.13, 2013, no pet.) (mem.
op.) (holding same where account had average balance of $21.36 in six months
preceding suit and $440.00 had been deposited into account during prior six months);
Estrada v. Angleton Bail Bonds, No. 14–04–00166–CV, 2004 WL 1631125, at *2 (Tex.
App.—Houston [14th Dist.] July 22, 2004, no pet.) (mem. op.) (holding same where
$350.00 had been deposited into account over prior six-month period).
The Texas Tort Claims Act (TTCA) provides:
If a suit is filed against an employee of a governmental unit based on
conduct within the general scope of that employee’s employment and if
it could have been brought under this chapter against the governmental
unit, the suit is considered to be against the employee in the employee’s
official capacity only. On the employee’s motion, the suit against the
employee shall be dismissed unless the plaintiff files amended pleadings
dismissing the employee and naming the governmental unit as defendant
on or before the 30th day after the date the motion is filed.
TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(f) (West, Westlaw through 2017 1st C.S.).
The claims set forth in Zavala’s petition, taken as true, are based only on the conduct of
appellees that was within the general scope of their employment with TDCJ. See id.
Further, his claims “could have been brought under [the TTCA] against” TDCJ. See
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Franka v. Velasquez, 332 S.W.3d 367, 370 (Tex. 2011); Mission Consol. Indep. Sch. Dist.
v. Garcia, 253 S.W.3d 653, 659 (Tex. 2008) (“Because the [TTCA] is the only, albeit
limited, avenue for common-law recovery against the government, all tort theories alleged
against a governmental unit, whether it is sued alone or together with its employees, are
assumed to be ‘under [the TTCA]’ for purposes of section 101.106.”). Accordingly, upon
motion filed by any appellee, the trial court would be required to dismiss Zavala’s suit,
unless he filed amended pleadings dismissing appellees as parties. See TEX. CIV. PRAC.
& REM. CODE ANN. § 101.106(f). Either way, due to application of TTCA section
101.106(f), Zavala’s claims had no arguable basis in law. See id. § 14.003(b)(2).
Therefore, the trial court did not err in dismissing those claims with prejudice. See
Nabelek, 290 S.W.3d at 233.
We overrule Zavala’s sole issue.
III. CONCLUSION
The trial court’s order is affirmed.
DORI CONTRERAS
Justice
Delivered and filed the
12th day of July, 2018.
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