in Re Alvie Robinson ( 2015 )


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  •                                  IN THE
    TENTH COURT OF APPEALS
    No. 10-14-00102-CV
    EX PARTE N.C.
    _____________
    From the 12th District Court
    Walker County
    Trial Court No. 26744
    ________________________________________________________________
    No. 10-14-00153-CV
    IN RE ALVIE ROBINSON
    _____________
    Original Proceeding
    ________________________________________________________________
    No. 10-14-00191-CV
    BRENT ALAN MCLEAN,                                      Appellant
    v.
    BRAD LIVINGSTON, ET AL,                                 Appellee
    From the 18th District Court
    Johnson County, Texas
    Trial Court No. C201400101
    OPINION ON REHEARING
    A motion for rehearing has been filed in each of these three proceedings. Each
    person who filed each of the three proceedings is an indigent inmate representing
    himself in the proceeding. Each proceeding was summarily dismissed because the
    inmate failed to comply with the basic requirements of Texas Civil Practice and
    Remedies Code Chapter 14 to file the proceeding. In this opinion on rehearing, we
    address the issue of whether we should reinstate each proceeding and thus circumvent
    the purpose of the statute. We deny each motion for rehearing.
    In a special session in 2011, the legislature passed, and the Governor signed, a
    bill with the caption: “AN ACT relating to fiscal and other matters necessary for
    implementation of the judiciary budget as enacted by H.B. No. 1, Acts of the 82nd
    Legislature, Regular Session, 2011, and to the operation and administration of, and
    practice and procedures in courts in, the judicial branch of state government.” Acts
    2011, 82nd Leg., 1st C.S., ch. 3 (H.B. 79), § 12.01 (effective January 1, 2012). As indicated
    by the caption, the bill included provisions that were designed to have an impact on the
    cost of operating the judicial branch. Included in that bill was a provision that clearly
    and specifically added proceedings filed in the appellate courts to the litigation being
    filed by inmates which would be summarily dismissed by the appellate court if the
    inmate failed to comply with the requirements of Chapter 14 of the Texas Civil Practice
    and Remedies Code. The bill became effective on January 1, 2012. See Acts 2011, 82nd
    Leg., 1st C.S., ch. 3 (H.B. 79), § 12.01 (effective January 1, 2012).
    After the change in the statute occurred but prior to its effective date, we
    endeavored to warn the inmate population of this statutory change. See Altschul v.
    TDCJ - Inmate Trust Fund Div., No. 10-11-00084-CV, 2012 Tex. App. LEXIS 2025, *3 (Tex.
    Ex parte N.C., In re Robinson, and McLean v. Livingston                                Page 2
    App.—Waco Mar. 14, 2012, pet. denied) (mem. op.) ("Section 14.002 has also been
    amended to make clear that such an affidavit is also required if the new action is filed in
    a court of appeals."). After a period of time, we began to dismiss proceedings without
    notice and opportunity to cure the defect, see Douglass v. Turner, 
    441 S.W.3d 337
    (Tex.
    App.—Waco 2013, no pet.); but later added a footnote explaining that a motion for
    rehearing or a petition for review could be filed and specified the timetable for doing
    either. See Reed v. Ford, No. 10-13-00279-CV, 2013 Tex. App. LEXIS 11888 (Tex. App.—
    Waco Sept. 19, 2013, no pet.) (mem. op.). During this extended time period, we would
    grant the motion for rehearing and reinstate the appeal if the inmate corrected the
    deficiency at the time the motion for rehearing was filed. See e.g. Atkins v. Herrera, Nos.
    10-13-00283-CV & 10-13-00284-CV, 2013 Tex. App. LEXIS 12385 (Tex. App.—Waco Oct.
    3, 2013) (mem. op.) (withdrawn by order issued Feb. 6, 2014) (not designated for
    publication).
    We took these steps during the first three years of implementing this statutory
    amendment to allow news of the change to be more widely disseminated within the
    inmate population. Maybe we were wrong to be so lax when the purpose of the
    amended legislation was to prevent the expenditure of scarce judicial resources on
    frivolous proceedings filed by inmates, thus allowing the appellate courts to focus
    limited resources on proceedings that merited review, including those filed by other
    inmates who had fulfilled the minimal statutory requirements to file a proceeding in the
    appellate court.
    Ex parte N.C., In re Robinson, and McLean v. Livingston                              Page 3
    We have expended judicial resources during this lengthy implementation period
    that were not required to be expended under a straight forward application of the
    statute.   The statute is not difficult for an inmate to comply with.     These same
    procedures have been required in trial courts since 1995.      Nevertheless, failure to
    comply with this same statute in proceedings filed in trial courts continues to be a
    common reason for those cases to be dismissed—years after the statute was made
    applicable to inmate filings in the trial courts.
    It is now over three years after the effective date of the statutory amendments
    that added these requirements to actions filed in the appellate courts. The number of
    deficient inmate filings, nevertheless, seems to be increasing rather than decreasing.
    These three proceedings are examples of the problem as each suffers from the same
    deficiency: failure to comply with the simple requirements of the statute to file the
    proceeding. Maybe we were overly optimistic in our initial assessment that inmates
    would learn of the minimum requirement to file appellate proceedings as indigent
    inmates representing themselves.
    Additionally, our experience in those proceedings in which a motion for
    rehearing was granted has confirmed the need for a more rigorous application of the
    statute as written and interpreted by case law. For example, a case was dismissed in
    October of 2013 and reinstated after a motion for rehearing was granted in March of
    2014. After three months of the inmate insisting that a reporter’s record be filed, and
    after numerous hours of court resources being expended, the Court discovered that the
    Ex parte N.C., In re Robinson, and McLean v. Livingston                          Page 4
    inmate had requested the reporter’s records for hearings held in 1988, 1989, and 1990
    that were no longer available and had not requested a reporter’s record from any
    hearing pertaining to the order at issue in the appeal. The inmate finally submitted a
    brief on the clerk’s record alone in October of 2014, a full year after the case was
    originally and properly dismissed, and the case remains pending, awaiting a brief filed
    by the State. See Keeter v. State, No. 10-13-00310-CV.
    Three years of education about the statutory requirements is long enough. The
    statute clearly authorizes this Court to summarily dismiss a proceeding that does not
    comply with the statute when it is filed. If the intended benefits of the statute are to be
    realized, we must be willing to require the inmate to comply with the statute or suffer
    the consequences of the failure to comply. Accordingly, we deny the motions for
    rehearing.
    TOM GRAY
    Chief Justice
    Before Chief Justice Gray,
    Justice Davis, and
    Justice Scoggins
    (Justice Davis dissenting)
    Motions denied
    Order issued and filed January 22, 2015
    Ex parte N.C., In re Robinson, and McLean v. Livingston                              Page 5
    

Document Info

Docket Number: 10-14-00153-CV

Filed Date: 1/22/2015

Precedential Status: Precedential

Modified Date: 9/28/2016