In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-18-00008-CV
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CHARLES ANTHONY ALLEN SR., Appellant
V.
TRESEA JEFFERSON, YOLANDA TAMEZ, VIRGLE MILLER JR.,
LAQUITHA MARTIN, TRACI MAYS AND PATRICIA YOUNG, Appellees
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On Appeal from the 411th District Court
Polk County, Texas
Trial Cause No. CIV31300
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MEMORANDUM OPINION
Charles Anthony Allen Sr. filed a suit for damages under the Texas Theft
Liability Act against six employees of the Texas Department of Criminal Justice,
Correctional Institutions Division 1 for confiscating and destroying Allen’s personal
property during a “shake-down” at the Polunsky Unit. See generally Tex. Civ. Prac.
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The trial court dismissed the suit prior to service; consequently, the
defendants, Tresea Jefferson, Yolanda Tamez, Virgle Miller Jr., Laquitha Martin,
Traci Mays and Patricia Young, did not appear in the trial court or in this Court.
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& Rem. Code Ann. §§ 134.001–.005 (West 2011 & Supp. 2017). Finding Allen
failed to file a separate affidavit or declaration identifying each suit previously
brought by Allen, the trial court dismissed his suit without prejudice. See Tex. Civ.
Prac. & Rem. Code Ann. § 14.003 (West 2017). Allen filed a motion to reinstate,
which the trial court denied in a written order. The two issues Allen presents in his
appeal brief complain the trial court abused its discretion by failing to conduct an
oral hearing on his motion to reinstate and by invoking its inherent authority to
dismiss the suit under Rule 165a of the Texas Rules of Civil Procedure. See generally
Tex. R. Civ. P. 165a. We address the issues in reverse order and affirm the trial
court’s judgment.
In issue two, Allen contends the trial court abused its discretion by invoking
its inherent authority to dismiss the suit under Texas Rule of Civil Procedure 165a.
See id. Allen concedes he failed to disclose all of his previously filed suits when he
filed his original petition, but he argues the error was unintentional and could have
been cured in a hearing on his motion to reinstate.
Allen filed an unsworn declaration of indigence with his petition. Because
Allen is an inmate, he had to identify his previously-filed lawsuits in a separate
affidavit or declaration. See Tex. Civ. Prac. & Rem. Code Ann. § 14.004 (West
2017). Rule 165a does not apply to a dismissal for failure to comply with the
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procedural requirements for pro se in forma pauperis inmate lawsuits. Stone v.
Schull, No. 12-08-00102-CV, 2008 WL 5235575, at *3 (Tex. App.—Tyler Dec. 17,
2008, no pet.) (mem. op.).
Furthermore, when he filed his original petition, Allen also filed a three-page
document titled “Previous Lawsuits,” but the document was neither signed by Allen
nor made by him under penalty of perjury. “When an inmate does not comply with
the affidavit requirements of Section 14.004, the trial court is entitled to assume the
suit is substantially similar to one previously filed by the inmate, and therefore,
frivolous.” Hall v. Treon, 39 S.W.3d 722, 724 (Tex. App.—Beaumont 2001, no
pet.). When an inmate fails to comply with section 14.004, the trial court may in its
discretion dismiss the suit without prejudice under section 14.003 without first
conducting an evidentiary hearing. Id.
In his motion to reinstate, Allen alleged his original suit included a three-page
section titled “Previous Lawsuits,” and he identified an additional lawsuit that had
been dismissed for non-exhaustion of administrative remedies and stated that the
case involved the identical issue but different defendants. Given Allen’s admission
that his declaration of previous lawsuits was a three-page document, the trial court
could conclude Allen had not inadvertently omitted a page that contained a signature
and a declaration under penalty of perjury. We overrule issue two.
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In his first issue, Allen argues the trial court abused its discretion by denying
his motion to reinstate without holding an oral hearing. Allen requested a telephone
hearing on his motion to reinstate.
Generally, a plaintiff is entitled to a hearing upon request on his motion to
reinstate a case that has been dismissed for want of prosecution. Abraham v. Acton,
539 S.W.3d 521, 524 (Tex. App.—El Paso 2018, no pet.). Although Allen filed a
motion to reinstate and requested a hearing, Rule 165a did not apply because the trial
court did not dismiss the lawsuit for want of prosecution. See generally Tex. R. Civ.
P. 165a. “[T]he procedures set out in Rule 165a(3) for reinstatement only apply when
proceedings are dismissed for want of prosecution.” Morris v. Tarlton, No. 11-13-
00199-CV, 2015 WL 4523531, at *1 (Tex. App.—Eastland July 23, 2015, pet.
denied) (mem. op.). We overrule issue one and affirm the trial court’s judgment.
AFFIRMED.
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CHARLES KREGER
Justice
Submitted on September 14, 2018
Opinion Delivered September 20, 2018
Before Kreger, Horton, and Johnson, JJ.
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