Inmate filed a suit against prison officials

Texas Case Law

WALKER v. O’GUIN, 10-05-00368-CV (Tex.App. [10th Dist.]
1-10-2007) FREDDIE LEE WALKER, Appellant v. JANICE O’GUIN,
E. FRANCO, AND VICTORIA DODSON, Appellee. No.
10-05-00368-CV Court of Appeals of Texas, Tenth District,
Waco. Opinion Delivered and Filed: January 10, 2007.

Appeal from the 12th District Court Walker County, Texas
Trial Court No. 22046.

Before Chief Justice GRAY, Justice VANCE, and Justice
REYNA.

FELIPE REYNA, Justice.

MEMORANDUM OPINION

The trial court dismissed inmate Freddie Lee Walker’s suit
against various prison officials as frivolous under Chapter
14 of the Civil Practice and Remedies Code. Walker contends
in five issues that the court erred by: (1) requiring that
the entire filing fee be paid from his inmate trust
account; (2) failing to state in the dismissal order the
precise statutory basis for dismissal; (3) dismissing his
suit without providing an opportunity to amend his
pleadings; (4) failing to hold a hearing on his motion for
the Attorney General to show authority to represent the
defendants under Rule of Civil Procedure 12; and (5)
failing to rule on his motion to disqualify or recuse. We
will affirm.

Background

Walker’s original petition stated a claim for declaratory
and injunctive relief and named only Janice O’Guin as a
defendant. His claims relate to the alleged revocation of
his status as a trusty with outside work privileges. The
original petition was accompanied by a request for issuance
of summons, an affidavit of inability to pay costs, an
affidavit regarding prior lawsuits, and a letter stating
that prison officials would not provide a copy of his
inmate trust account statement without a court order.

The court ordered the district clerk to prepare a bill of
costs and send a certified copy to Walker and to the
Department of Criminal Justice Trust Fund along with an
order requiring that twenty percent of the funds in
Walker’s inmate account be withdrawn for payment of the
filing fee for his lawsuit and that ten percent of monthly
deposits thereafter be withdrawn for payment of the fee
until the total fee was paid or Walker was released from
prison.

The court also signed an order requiring the Attorney
General to: (1) review the pleadings and documents on file
for compliance with Chapter 14 and “file as amicus curiae
an advisory with the Court as to whether the inmate
plaintiff has satisfied all of the statutory requirements”;
and (2) obtain authority to represent the defendants and
answer on their behalf within 60 days.

Walker subsequently filed an amended petition, adding
additional allegations and naming E. Franco and Victoria
Dodson as additional defendants. Walker’s amended petition
was accompanied by a request for summonses for Franco and
Dodson. He contemporaneously filed a request for production
and interrogatories.

Walker filed an objection to the court’s order to the
Attorney General on the primary ground that he had sued the
named defendants in their individual capacities and not as
representatives of the State. Walker also requested that
the Attorney General show authority to represent the
defendants under Rule of Civil Procedure 12.

Walker next filed an amended or supplemental objection to
this order. In this document, Walker renewed his objections
to the order and also asked the trial judge to disqualify
or recuse himself because he had “already abused his
discretion in issuing an unduly vague ORDER for the Texas
Attorney General to show authority to represent the
Respondent’s.”

The Attorney General filed its amicus advisory about one
month after the court ordered same. In this advisory, the
Attorney General stated its opinion that Walker had failed
to comply with the requirements of sections 14.004 and
14.006 of the Civil Practice and Remedies Code and that the
court could dismiss Walker’s suit for these reasons without
a hearing.

The court later signed an order of dismissal without
conducting a hearing.

Payment of Court Costs

Walker contends in his first issue that the court erred by
requiring that the entire filing fee be paid from his
inmate trust account. Walker relies on the Supreme Court’s
decision in Bonds v. Texas Department of Criminal Justice,
953 S.W.2d 233 (Tex. 1997) (per curiam). However, Bonds is
distinguishable.

Section 14.006 of the Civil Practice and Remedies Code
provides in pertinent part:

(a) A court may order an inmate who has filed a claim to
pay court fees, court costs, and other costs in accordance
with this section and Section 14.007. The clerk of the
court shall mail a copy of the court’s order and a
certified bill of costs to the department or jail, as
appropriate.

(b) On the court’s order, the inmate shall pay an amount
equal to the lesser of:

(1) 20 percent of the preceding six months’ deposits to
the inmate’s trust account; or

(2) the total amount of court fees and costs.

(c) In each month following the month in which payment is
made under Subsection (b), the inmate shall pay an amount
equal to the lesser of:

(1) 10 percent of that month’s deposits to the trust
account; or

(2) the total amount of court fees and costs that remain
unpaid.

. . . .

(f) The inmate shall file a certified copy of the
inmate’s trust account statement with the court. The
statement must reflect 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. The court may request the department or jail to
furnish the information required under this subsection.

. . . .

TEX. CIV. PRAC. & REM. CODE ANN. § 14.006(a)-(c), (f)
(Vernon 2002).

In Bonds, the defendant failed to provide a copy of his
inmate trust account statement as required by section
14.006(f). See id. § 14.006(f). In dismissing the
suit, the trial court simply taxed all court costs against
the defendant without knowing whether twenty percent of his
inmate account was a lesser sum and without limiting the
order in the manner required by section 14.006. See Bonds,
953 S.W.2d at 233.

Here, Walker, like the defendant in Bonds, did not provide
a copy of his inmate trust account statement. However, the
trial court in Walker’s case did not simply tax all court
costs against him. Rather, the court strictly followed the
percentages mandated by section 14.006. Thus, no error is
shown, and we overrule Walker’s first issue.

Adequacy of Dismissal Order

Walker contends in his second issue that the court erred by
failing to state in the dismissal order the precise
statutory basis for dismissal. The Fourteenth Court of
Appeals has rejected a similar complaint.

Chapter 14 of the Texas Civil Practice and Remedies Code
grants trial courts special power to summarily dismiss
prisoner suits, even in the absence of a hearing. Compare
TEX. CIV. PRAC. REM. CODE ANN. § 14.003 (Vernon
Supp. 2002) with Villarreal v. San Antonio Truck &
Equip., 994 S.W.2d 628, 630-31 (Tex. 1999) (dismissal
under Texas Rule of Civil Procedure 165a improper
without giving notice of intent to dismiss stating
grounds). We therefore hold the court’s failure to
specifically state the grounds for dismissal is not an
abuse of discretion.

Retzlaff v. Tex. Dep’t of Criminal Justice, 94 S.W.3d 650,
654 (Tex.App.-Houston [14th Dist.] 2002, pet. denied).

We agree with this reasoning. Accordingly, we overrule
Walker’s second issue.

Opportunity to Amend

Walker contends in his third issue that the court erred by
dismissing his suit without providing an opportunity to
amend his pleadings. However, Texas courts have
consistently held that a trial court has discretion to
dismiss a suit as frivolous under Chapters 13 and 14 of the
Civil Practice and Remedies Code without providing such an
opportunity. See Hughes v. Massey, 65 S.W.3d 743, 745
(Tex.App. — Beaumont 2001, no pet.); Bohannon v.
Tex. Bd. of Criminal Justice, 942 S.W.2d 113, 116
(Tex.App.-Austin 1997, writ denied); Aguilar v. Chastain,
923 S.W.2d 740, 745 (Tex.App.-Tyler 1996, writ denied);
Kendrick v. Lynaugh, 804 S.W.2d 153, 156 (Tex.App.-Houston
[14th Dist.] 1990, no writ). Accordingly, we overrule
Walker’s third issue.

Attorney General’s Authority

Walker contends in his fourth issue that the court erred by
failing to hold a hearing on his motion for the Attorney
General to show authority to represent the defendants under
Rule of Civil Procedure 12.

Rule 12 provides:

A party in a suit or proceeding pending in a court of
this state may, by sworn written motion stating that he
believes the suit or proceeding is being prosecuted or
defended without authority, cause the attorney to be cited
to appear before the court and show his authority to
act. The notice of the motion shall be served upon the
challenged attorney at least ten days before the hearing
on the motion. At the hearing on the motion, the burden of
proof shall be upon the challenged attorney to show
sufficient authority to prosecute or defend the suit on
behalf of the other party. Upon his failure to show such
authority, the court shall refuse to permit the attorney
to appear in the cause, and shall strike the pleadings if
no person who is authorized to prosecute or defend
appears. The motion may be heard and determined at any
time before the parties have announced ready for trial,
but the trial shall not be unnecessarily continued or
delayed for the hearing.

TEX. R. CIV. P. 12.

Here, the Attorney General appeared as amicus curiae,[fn1]
a friend of the court, and not as the defendants’
representative. Therefore, Rule 12 does not apply, and we
overrule Walker’s fourth issue.

Disqualification or Recusal

Walker contends in his fifth issue that the court erred by
failing to rule on his motion to disqualify or recuse.

When presented with a proper motion to disqualify or recuse
himself, a trial judge must disqualify or recuse himself,
or he must request that the presiding judge of the
administrative judicial district assign another judge to
hear the motion. TEX. R. CIV. P. 18a(c); Spigener v.
Wallis, 80 S.W.3d 174, 180 (Tex.App.-Waco 2002, no pet.).
Rule 18a(a) requires that such a motion be verified. TEX.
R. CIV. P. 18a(a); Barron v. Attorney Gen. of Tex., 108
S.W.3d 379, 382 (Tex.App.-Tyler 2003, no pet.); Spigener,
80 S.W.3d at 181; Gill v. Tex. Dep’t of Criminal Justice, 8
S.W.3d 576, 579 (Tex.App.-Houston [1st Dist.] 1999, no
pet.).

Walker did not verify his motion to disqualify or recuse,
nor did he support it with an unsworn declaration as
provided by section 132.001 of the Civil Practice and
Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 132.001 (Vernon 2005). Therefore, the trial judge
did not err by failing to disqualify or recuse himself or
to refer the motion to the presiding judge of the
administrative judicial district. See Barron, 108 S.W.3d at
382-83; Spigener, 80 S.W.3d at 181; see also Gill, 3 S.W.3d
at 579 (holding inmate waived right to complain of court’s
failure to rule on recusal motion because the motion was
not verified or supported by unsworn declaration).

However, a trial judge’s disqualification cannot be
waived. Spigener, 80 S.W.3d at 180; Zarate v. Sun
Operating, Ltd., 40 S.W.3d 617, 621 (Tex.App.-San Antonio
2001, pet. denied). A trial judge may be disqualified under
either article V, section 11 of the Texas Constitution or
section 74.053 of the Government Code (applicable to
assigned judges). See Spigener, 80 S.W.3d at 179. Because
the trial judge in Walker’s case is the elected judge and
not sitting by assignment, section 74.053 does not apply.

Article V, section 11 provides in pertinent part:

No judge shall sit in any case wherein the judge may be
interested, or where either of the parties may be
connected with the judge, either by affinity or
consanguinity, within such a degree as may be prescribed
by law, or when the judge shall have been counsel in the
case.

TEX. CONST. art. V, § 11.

Walker alleged in his motion that the trial judge is
disqualified because the judge had “already abused his
discretion in issuing an unduly vague ORDER for the Texas
Attorney General to show authority to represent the
Respondent’s.” This does not constitute any of the grounds
for disqualification specified in article V, section 11.
Thus, Walker’s motion does not state a valid basis for
disqualification, and any error in the trial judge’s
failure to refer Walker’s motion to the presiding judge of
the administrative judicial district is harmless. Spigener,
80 S.W.3d at 181. Accordingly, we overrule Walker’s fifth
issue.

We affirm the judgment.

Affirmed

[fn1] Black’s Law Dictionary defines the term “amicus
curiae” as follows:

A person who is not a party to a lawsuit but who
petitions the court or is requested by the court to file a
brief in the action because that person has a strong
interest in the subject matter.

BLACK’S LAW DICTIONARY 93 (8th ed. 2004).