Barry Emmett v. Utmb
10-15-00118-CV
| Tex. App. | Oct 1, 2015Background
- Barry Emmett, a prison inmate, appeals a trial court order finding him a vexatious litigant, imposing a prefiling order, and requiring security to proceed.
- Chapter 14 of the Civil Practice and Remedies Code, amended effective January 1, 2012, applies to inmate actions and appeals in appellate courts.
- Inmate litigants must file an affidavit of previous filings detailing prior pro se actions and a certified inmate trust account statement with the filing.
- Failure to file the required affidavit or account statement can lead to dismissal of the action without notice, and courts may deem related filings frivolous.
- The court dismissed Emmett’s appeal as frivolous and ordered the Clerk to write off unpaid filing fees, suspending but not eliminating the fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Chapter 14 applies to inmate appeals to the court of appeals. | Emmett argues Chapter 14 governs inmate actions and appeals. | The court applies Chapter 14 to appellate actions by inmates. | Chapter 14 applies to inmate appeals. |
| Whether failure to file affidavit of previous filings or inmate account statement justifies dismissal. | Emmett did not file the affidavit or account statement. | Noncompliance allows dismissal as frivolous. | Dismissal as frivolous permitted. |
| Whether the court could suspend but not write off unpaid filing fees. | N/A | Court can write off fees under Rule procedures. | Clerk to write off unpaid fees; fees not eliminated. |
Key Cases Cited
- Amir-Sharif v. Mason, 243 S.W.3d 854 (Tex. App.—Dallas 2008) (inmate Chapter 14 affidavit requirement applies to appellate actions)
- Hickson v. Moya, 926 S.W.2d 397 (Tex. App.—Waco 1996) (affidavit requirements are essential to review of inmate litigation)
- Altschul v. TDCJ - Inmate Trust Fund Div., 2012 Tex. App. LEXIS 2025 (Tex. App.—Waco 2012) (noncompliance may render current action substantially similar to prior frivolous filing)
- Bell v. Tex. Dep't of Criminal Justice, 962 S.W.2d 156 (Tex. App.—Houston [14th Dist.] 1998) (cases dismissing inmate litigation for failure to comply with affidavit requirements)
- Douglas v. Turner, 441 S.W.3d 337 (Tex.App.—Waco 2013) (applies Chapter 14 requirements to appellate actions)
- Jackson v. Tex. Dep't of Criminal Justice, 28 S.W.3d 811 (Tex. App.—Corpus Christi 2000) (reviewing cases dismissing inmate litigation for noncompliance)