NUMBER 13-17-00009-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
SALVADOR ZAVALA, Appellant,
v.
M. MATTHEW, ET AL, Appellees.
On appeal from the 36th District Court
of Bee County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Longoria, and Hinojosa
Memorandum Opinion by Justice Hinojosa
Appellant Salvador Zavala appeals the trial court’s order dismissing with prejudice
the underlying lawsuit against appellees M. Matthew, C. Furr, Barry J. Thomas, and
Kristine M. Zambrano, 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 complains that the trial court
abused its discretion in dismissing his lawsuit. We affirm.
I. BACKGROUND 1
Zavala, an inmate, filed an in forma pauperis lawsuit against four employees of the
Texas Department of Criminal Justice—Institutional Division (TDCJ-ID). Zavala alleged
that one of the employees stole his headphones, the other three employees “failed to
correct said harm and committed fraud”, and all of the employees engaged in a conspiracy
to steal the headphones. Zavala asserted claims for theft, referencing the Texas Theft
Liability Act, see id. § 134.003 (West, Westlaw through 2017 1st C.S.), fraud, and
conspiracy to commit fraud. The Office of the Attorney General filed an amicus curiae
motion to dismiss, arguing that Zavala’s claims were frivolous and that Zavala filed a false
declaration of indigency. The trial court dismissed Zavala’s lawsuit with prejudice without
specifying the reasons for its ruling. This appeal followed.
II. DISCUSSION
A. 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.
1 Because this is a memorandum opinion and the parties are familiar with the facts, we will not
recite them here except as necessary to advise the parties of the Court’s decision and the basic reasons
for it. See TEX. R. APP. P. 47.4.
2
Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985); McClain v. Terry, 320
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.
B. Applicable Law
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. Donaldson v. Tex. Dep’t of Crim. Justice—Correctional 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.).
The test for determining entitlement to proceed in forma pauperis is whether the appellant
would be unable to pay the costs of his suit if he wanted to and made a good faith effort
to do so. Griffin Indus. v. Hon. Thirteenth Court of Appeals, 934 S.W.2d 349, 351 (Tex.
1996) (quoting Allred v. Lowry, 597 S.W.2d 353, 355 (Tex. Crim. App. 1980)); Donaldson,
355 S.W.3d at 725.
To enable the trial court to determine whether an inmate is indigent, the inmate is
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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.” TEX. CIV. PRAC. & REM. CODE ANN.
§ 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).
C. Analysis
Zavala’s sole issue complains that the trial court abused its discretion in dismissing
his lawsuit. In this case, Zavala had a balance in his trust account of $27.24 when the
underlying cause was filed, and the average monthly balance in his account for the six-
month period preceding the suit was $61.92. The average monthly amount deposited
into his account during that same period was $162.50, and a total of $975.00 had been
deposited into his account in the six months preceding suit. Accordingly, because
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
allegation 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 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-
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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 Correctional 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).
We overrule Zavala’s sole issue.
III. CONCLUSION
The trial court’s order is affirmed.
LETICIA HINOJOSA
Justice
Delivered and filed the
4th day of January, 2018.
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Salvador Zavala v. M. Matthew
Combined Opinion