Earnest J. Matthews v. Sherell Randall

COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS AT HOUSTON

ORDER

Appellate case name: Earnest J. Matthews v. Sherell Randall Appellate case number: 01-21-00019-CV Trial court case number: 19-DCV-264316 Trial court: 240th District Court of Fort Bend County

Appellant Earnest J. Matthews, an inmate, filed a pro se appeal from the trial court’s order signed December 17, 2020 dismissing his suit for want of prosecution. On February 24, 2021, appellant filed an application to proceed in forma pauperis on appeal. The application was not completed on the proper form and did not supply the information required by the Texas Supreme Court to obtain indigency status. On April 22, 2021, this Court forwarded the Texas Supreme Court’s Statement of Inability to Afford Costs and instructed appellant that, should he file a Statement of Inability in compliance with Rule 145 in the trial court and should the trial court grant his request, he must request the preparation and filing of a supplemental clerk’s record. The supplemental clerk’s record filed on May 12, 2021 contained the same non-compliant form that appellant previously filed in this Court. If appellant claims he is unable to afford payment of costs for the appellate record, he must comply with Texas Rule of Civil Procedure 145(a) and complete and file the attached Statement of Inability to Afford Costs with the trial court clerk.1 See TEX. R. CIV. P. 145(a). If granted, appellant also must request the preparation and filing of a supplemental clerk’s record within twenty-one days of the date of the trial court’s order, containing the Statement of Inability. If appellant claims an inability to afford payment of filing fees and other fees assessed

1 Rule 145 requires a declarant to use the attached form Statement of Inability to Afford Payment of Court Costs, which has been approved by the Texas Supreme Court. See TEX. R. CIV. P. 145(a)–(b). In the alternative, the declarant may provide all the information required by the Texas Supreme Court’s form: his full legal name, his address, phone number, email, date of birth, dependents, whether he is represented by Legal Aid or asked for a Legal Aid provider; whether he receives public benefits and if so, which ones; his monthly income and income sources; the value of any property he owns; his monthly expenses; and his debts, all of which must be stated under penalty of perjury. The affidavit of indigence filed by appellant in this Court on February 22, 2021 and in the trial court do not comply with Rule 145.

by the appellate court, he must also complete and file the attached Statement of Inability to Afford Costs with this Court. See TEX. R. APP. P. 20.1, comment. In addition, Appellant has not complied with the requirements of Chapter 14 of the Texas Civil Practices and Remedies Code governing inmate litigation. Section 14.004 of the Texas Civil Practice and Remedies Code provides that an inmate who files a statement or unsworn declaration of inability to pay costs must file an additional affidavit or declaration in the trial court identifying each prior lawsuit, other than an action under the Family Code, filed by the inmate without legal representation. TEX. CIV. PRAC. & REM. CODE § 14.004(a). As to each prior lawsuit, the affidavit or declaration must specify the operative facts, the case name or style, the cause number, the court in which it was brought, the names of the parties, and the result of the suit. Id. If a previous action or claim was dismissed as frivolous or malicious, the affidavit or unsworn declaration of previous filings must state the date of any final judgment or order affirming the dismissal. TEX. CIV. PRAC. & REM. CODE § 14.004(b). If there are no prior lawsuits, the affidavit must say that. Additionally, the affidavit or unsworn declaration of previous filings must be accompanied by a certified copy of the inmate’s trust account statement reflecting the balance of the account at the time the appeal was filed and all account activity during the six months preceding the date the appeal was filed. TEX. CIV. PRAC. & REM. CODE §§ 14.004(c); 14.006(f); see Douglas v. Moffett, 418 S.W.3d 336, 339 (Tex. App.—Houston [14th Dist.] 2013, no pet.). Appellant did not file an additional affidavit or declaration relating to previous filings in the trial court although he did attach a six-month history of his inmate trust account. Finally, we note that Appellant prematurely filed a brief on April 16, 2021, before the reporter’s record had been filed. The brief does not comply with the relevant rules in that it does not: • contain citations to the record, see TEX. R. APP. P. 38.1(d), (f)-(k); • contain the identity of parties and counsel, see TEX. R. APP. P. 38.1(a); and • contain an appendix, see TEX. R. APP. P. 38.1(k).

Accordingly, the brief is stricken. Appellant must file a corrected brief in compliance with Texas Rule of Appellate Procedure 38. The deadline for filing the corrected brief is thirty days after the date the reporter’s record is filed. TEX. R. APP. P. 38.6(a).

It is so ORDERED.

Judge’s signature: /s/ Veronica Rivas-Molloy Acting individually

Date: July 27, 2021

NOTICE: THIS DOCUMENT CONTAINS SENSITIVE DATA Cause Number: (The Clerk’s office will fill in the Cause Number when you file this form) Plaintiff: In the (check one): (Print first and last name of the person filing the lawsuit.) District Court Court County Court / County Court at Law And Number Justice Court Defendant: Texas (Print first and last name of the person being sued.) County

Statement of Inability to Afford Payment of Court Costs or an Appeal Bond in Justice Court 1. Your Information My full legal name is: My date of birth is: / / First Middle Last Month/Day/Year

My address is: (Home) (Mailing) ___________________________________________________________________________________

My phone number: My email:

About my dependents: “The people who depend on me financially are listed below. Name Age Relationship to Me 1 2 3 4 5 6

2. Are you represented by Legal Aid? I am being represented in this case for free by an attorney who works for a legal aid provider or who received my case through a legal aid provider. I have attached the certificate the legal aid provider gave me as ‘Exhibit: Legal Aid Certificate. -or- I asked a legal-aid provider to represent me, and the provider determined that I am financially eligible for representation, but the provider could not take my case. I have attached documentation from legal aid stating this. or- I am not represented by legal aid. I did not apply for representation by legal aid.

3. Do you receive public benefits? I do not receive needs-based public benefits. - or - I receive these public benefits/government entitlements that are based on indigency: (Check ALL boxes that apply and attach proof to this form, such as a copy of an eligibility form or check) Food stamps/SNAP TANF Medicaid CHIP SSI WIC AABD Public Housing or Section 8 Housing Low-Income Energy Assistance Emergency Assistance Telephone Lifeline Community Care via DADS LIS in Medicare (“Extra Help”) Needs-based VA Pension Child Care Assistance under Child Care and Development Block Grant County Assistance, County Health Care, or General Assistance (GA) Other:

© Form Approved by the Supreme Court of Texas by order in Misc. Docket No. 16-9122 Statement of Inability to Afford Payment of Court Costs Page 1 of 2

4. What is your monthly income and income sources? “I get this monthly income: $ in monthly wages. I work as a for . Your job title Your employer $ in monthly unemployment. I have been unemployed since (date) . $ in public benefits per month. $ from other people in my household each month: (List only if other members contribute to your household income.) $ from Retirement/Pension Tips, bonuses Disability Worker’s Comp Social Security Military Housing Dividends, interest, royalties Child/spousal support My spouse’s income or income from another member of my household (If available) $ from other jobs/sources of income. (Describe) $ is my total monthly income.

5. What is the value of your property? 6. What are your monthly expenses? “My property includes: Value* “My monthly expenses are: Amount Cash $ Rent/house payments/maintenance $ Bank accounts, other financial assets Food and household supplies $ $ Utilities and telephone $ $ Clothing and laundry $ $ Medical and dental expenses $ Vehicles (cars, boats) (make and year) Insurance (life, health, auto, etc.) $ $ School and child care $ $ Transportation, auto repair, gas $ $ Child / spousal support $ Other property (like jewelry, stocks, land, Wages withheld by court order another house, etc.) $ $ Debt payments paid to: (List) $ $ $ $ $ Total value of property → $ Total Monthly Expenses → $ *The value is the amount the item would sell for less the amount you still owe on it, if anything.

7. Are there debts or other facts explaining your financial situation? “My debts include: (List debt and amount owed)

“ (If you want the court to consider other facts, such as unusual medical expenses, family emergencies, etc., attach another page to this form labeled “Exhibit: Additional Supporting Facts.”) Check here if you attach another page.

8. Declaration I declare under penalty of perjury that the foregoing is true and correct. I further swear: I cannot afford to pay court costs. I cannot furnish an appeal bond or pay a cash deposit to appeal a justice court decision. My name is . My date of birth is : / / . My address is Street City State Zip Code Country

signed on / / in County, Signature Month/Day/Year county name State

© Form Approved by the Supreme Court of Texas by order in Misc. Docket No. 16-9122 Statement of Inability to Afford Payment of Court Costs Page 2 of 2