NO. 07-08-0415-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

AUGUST 6, 2009

______________________________

JAMES ISHMAEL TIBBS, APPELLANT

V.

WARDEN SAVERS, ET AL., APPELLEES

_________________________________

FROM THE 69TH DISTRICT COURT OF HARTLEY COUNTY;

NO. 4315H; HONORABLE RON ENNS, JUDGE

_______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION

          Appellant, James Ishmael Tibbs, proceeding pro se and in forma pauperis, appeals from the trial court’s order dismissing his suit against Warden Savers, et al., for alleged civil rights violations. By a sole issue, Tibbs asserts the trial court abused its discretion in denying his Motion for Judgment Nihil Dicit and Motion to Prosecute. Although inartfully drafted, Tibbs complains of the trial court’s dismissal of his suit. Appellees contend the trial court correctly dismissed Tibbs’s suit for failure to comply with the requirements of chapter 14 of the Texas Civil Practice Code. We agree with Appellees and affirm.

Background Facts

          According to the clerk’s record, Tibbs filed grievances against Appellees, employees at the Dalhart Unit of the Texas Department of Criminal Justice. He alleged that certain Department employees were censoring his letters to newspapers and other organizations. The clerk’s record reflects that disciplinary action was taken against Tibbs for the content of the letters. Tibbs filed grievances against Department officials for being punished for the content of the letters. After the grievance procedures, he filed a civil rights complaint against Appellees. He also filed an affidavit declaring his indigence. As such, he was required to file an Affidavit Relating to Previous Filings required by section 14.004 of the Texas Civil Practice and Remedies Code.

          The affidavit filed by Tibbs entitled simply “Affidavit,” provides as follows:

I’ve filed several civil action suits and have been sancioned [sic] by the 5th Circuit Court of Appeals, I’ve no means to fully apprize this Court of all the civil claims I’ve filed, however; this is an original first time for this issue I’m very confident of success due to the fact that stare decissions [sic] . . . .

 

          Appellees filed a Motion to Dismiss Tibbs’s suit for failure to comply with sections 14.004 (requiring an affidavit relating to previous filings) and 14.005 (requiring an affidavit of exhaustion of administrative remedies) of the Texas Civil Practice and Remedies Code. Tibbs filed an objection to the motion and attempted to remedy his failure to comply with the requirements of section 14.004 by asserting:

Cause No. 1; cv00546 MAC KFG Document #;2 1 filed 09/15/2008 page 2 Tibbs v. Martin, No5;96cv354 (EDTex. Feb. 3, 1997) (dismissed as frivolous) aff’d No97 40182 (5th cir. April 8th, 1998) (appeal dismissed as frivolous); Tibbs v. TDCJ ID No.5; 96cv321 (E.D.Tex. Dec. 20, 1997) dismissed as frivolous, aff’d 97 40079 (5th Cir. Oct. 23, 1997) (appeal dismissed as frivolous)

This information just came from UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS 211W. Ferguson Tyler Texas 75702 However the 69th Judicial Dis. Crt, Has waived this Issue and can not barr [sic] under Section 14.004.

 

          The trial court signed an order dismissing Tibbs’s suit against Appellees “without prejudice due to his failure to comply with the requirement of Section 14.004(a)(2) of the TEXAS CIVIL PRACTICE AND REMEDIES CODE.”

          We review the dismissal of an in forma pauperis suit filed by an inmate for abuse of discretion. Hickson v. Moya, 926 S.W.2d 397, 398 (Tex.App.–Waco 1996, no writ). A trial court abuses its discretion when its ruling is arbitrary, unreasonable, or without reference to any guiding rules or legal principles. K-Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). We are mindful that pro se pleadings are evaluated by less stringent standards than those applied to formal pleadings filed by attorneys.  Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct.594, 30 L.Ed.2d 652 (1972).

          The statutory scheme for inmate litigation is contained in chapter 14 of the Texas Civil Practice and Remedies Code Annotated (Vernon 2002). The purpose of chapter 14 is to assist the trial court in determining whether a suit is malicious or frivolous under section 14.003(a). Hickson, 926 S.W.2d at 399.

          Section 14.004(a)(1) requires an inmate who files an affidavit of inability to pay costs to file a separate affidavit of every suit filed pro se, without regard to whether he was an inmate at the time, other than suits filed under the Texas Family Code. Pursuant to subsection (a)(2), the affidavit shall describe each suit and (A) state the operative facts, (B) list the case name, cause number, and court in which suit was filed, (C) identify each party, and (D) state the result of the suit, including whether it was dismissed as frivolous or malicious. Under subsection (b), an inmate must declare the date of the final order affirming the dismissal of a previous suit if it was dismissed as frivolous or malicious. Finally, subsection (c) requires that the affidavit be accompanied by a certified copy of the inmate’s trust account statement.

          The original affidavit filed by Tibbs was deficient in all the requirements of section 14.004(a)(2). He substantially complied with subsection (b) and did file a certified copy of his trust account as required by subsection (c). Notwithstanding the amendment to his affidavit contained in his objection to the motion to dismiss, it still lacked the information necessary to remedy his original affidavit and was of no assistance to the trial court in determining whether the underlying suit was frivolous or malicious. Thus, we conclude the trial court did not abuse its discretion in dismissing Tibbs’s suit against Appellees. Tibbs’s sole contention is overruled.

          Accordingly, the trial court’s judgment is affirmed.

                                                                           Patrick A. Pirtle

                                                                                 Justice

Times New Roman"> We disagree that error is shown. First, the record to which appellant refers does not support an inference that the colloquies in question took place during a "custodial interrogation." Neither does it show that appellant had "unambiguously" invoked her right to counsel at the time in question. However, appellant argues that her right to counsel during any questioning had been invoked on her behalf by her father. She cites Janecka v. State, 739 S.W.2d 813 (Tex. Crim. App. 1987), for the proposition that an accused person's attorney may invoke a defendant's right to counsel. The Janecka court did indeed opine that "[u]nder certain circumstances . . . an accused's attorney can speak for the accused in invoking Fifth Amendment protections." Id. at 828. The court, however, went on to explain those "circumstances." It explained that an attorney may speak for his client in invoking the Fifth Amendment rights if 1) the attorney-client relationship exists, 2) the attorney invokes the Fifth Amendment right to counsel in the presence of the accused or after conferring with the accused, 3) the accused does nothing to contradict his attorney, and 4) the officers agree not to question the accused in the attorney's absence. ⁽²⁾ Id. As applied here, the teaching of the case is that if appellant's father was actually representing her as an attorney at the time in question, the questioning amounted to "custodial interrogation," and the officers had clearly been informed by the attorney not to question her, then the attorney's invocation of her rights would be sufficient. However, under this record, the trial judge would be justified in concluding that the questions were directed to pre-arrest conduct and were not the result of custodial interrogation. Moreover, he could reasonably have concluded that the record was not sufficient to clearly show that either appellant's father, assuming he was acting as her attorney at the time, or appellant had invoked her Fifth Amendment right or her Sixth Amendment right to counsel. Moreover, the record does not show appellant made any objection to the questions.

Additionally, during appellant's cross-examination, and prior to the first colloquy, appellant was asked, without objection, whether she called the police when she got to her boyfriend's house after the occurrence, to which she replied that she did not. She was then asked, again without objection, why she did not call the police and her reply was that she did not think they would be involved. Subsequently, without objection, she admitted she had never called the police after the incident and admitted that the first time anyone got to hear her story was at the time of the trial. The record shows that testimony about appellant's silence was received on several occasions without objection. Thus, the question was not properly preserved for appellate review.

For the reasons we have set out, the record does not show reversible error. Accordingly, appellant's point is overruled, and the judgment of the trial court is affirmed.

John T. Boyd

Senior Justice

Do not publish.

1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't Code Ann. 75.002(a)(1) (Vernon Supp. 2003).

2. However, in footnote 6 on page 828, the court qualified that fourth condition by noting that if an accused or his attorney has stated a desire to talk to the police only in the presence of counsel, that request must be honored "whether or not police officers agree."