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Civil Litigation No. 06-02-00171-CV, 5/28/2003. Click here for the full text of this decision FACTS: Luke Clyde Teixeira appeals from the dismissal of his suit against John Hall M.D. Teixeira filed a medical malpractice lawsuit against Hall on April 9, 2002. At that time, he also filed an application to proceed as an indigent, asserting he was unable to pay the fee for the proceedings. On May 7, 2002, the trial court signed an order drafted by Teixeira which specifically granted his request to have citation issued and “this cause to proceed before all fees have been paid.” The trial court thereby ordered citation to be accomplished, but did not make an explicit finding on indigence. Under the requirements of the specific medical malpractice statute, Teixeira was required, not later than 90 days after the date of filing his claim, to either file a separate $5,000 cost bond for each physician, or file an expert report. Texas Revised Civil Statutes article 4590i �13.01(a), (b). Teixeira did neither. Hall then filed a motion that Teixeira be ordered to file the $7,500 bond required if a plaintiff fails to file the lower bond or an expert’s report. The trial court granted Hall’s motion and ordered the higher bond. Teixeira filed a motion to reconsider in which he argued that, because he was unable to afford to file a cost bond, and because he had filed an application to proceed as an indigent with his petition as required by Texas Civil Practice and Remedies Code �14.003, the requirements of Article 4590i �13.01(o) were met, and he was not required to file a bond. Teixeira did not file a bond, and the trial court dismissed his suit because of that failure. HOLDING: Reversed and remanded. Teixeira contends that, because he had requested and received free service, and because he had filed an application to proceed as a pauper, he had adequately met the requirements of the medical malpractice statute to proceed as an indigent. Therefore, he argues the trial court erred by dismissing his suit. Subsection (o) states: “Notwithstanding any other provision of this section, a claimant who is proceeding without an attorney and who is unable to afford a cost bond or cash deposit may, in lieu of a cost bond or cash deposit, file an affidavit in the same form required for an affidavit in lieu of security for costs under the Texas Rules of Civil Procedure.” Subsection (o) allows indigent pro se claimants to file an affidavit of their inability to post security for costs instead of posting a cost bond or depositing cash into escrow. The statute also requires the affidavit be filed in the form required by Texas Rule of Civil Procedure 145. Teixeira did not file an affidavit, but instead filed an application to proceed as a pauper that was a declaration of indigency. Hall focuses his response not on the factual statements made in that declaration, but instead on a claim that it is inadequate to act as an affidavit. Specifically, he argues the document is inadequate to act as an affidavit because it was not notarized and does not recite necessary language stating, “I am unable to pay the court costs,” and, “I verify that the statements made in this affidavit are true and correct,” as set out in rule 145(2). This argument does not take into account, however, chapter 132 of the Texas Civil Practice and Remedies Code. That statute allows prison inmates to file unsworn declarations if they meet certain requirements. Hall argues that the declaration is inadequate because it has additional terms in the closing sentence rather than simply stating the statement is true. The application does not contain the precise language of Rule 145. Teixeira stated in his concluding sentence “[B]ecause of my poverty I am unable to pay in advance the filing fee for said proceedings or to give security for the filing fee. . . . . I declare under penalty of perjury and pursuant to 28 U.S.C. � 1746 that the above and foregoing is true to the best of my knowledge.” The language in the declaration is required to substantially comply with the statute to be found adequate. Smith v. McCorkle, 895 S.W.2d 692 (Tex. 1995). Section 132.002 requires the declaration be subscribed by the person making the declaration as true under penalty of perjury. This declaration contains that language, although with reference to the parallel federal statute instead of the controlling state authority. Section 132.003 then provides a form for the declaration. Teixeira’s declaration varies from federal and state requirements, Even though rule 145 contains specific language to be used in affidavits, cases have not held that those magic words are the keystone of this review, but instead appraise whether the affirmation is such as to show that the statements are based on the affiant’s personal knowledge and whether the statement is so positive as to allow perjury to lie. The court sees no reason to apply a stricter rule to declarations made under �132.001 by a prison inmate. Thus, the court focuses review not on Teixeira’s closing statement, but instead on the basic question of whether, if he lied, perjury could be assigned to this declaration. Teixeira declared that his statements about his financial resources were true and stated specific facts about the money given to him, the money currently in banking accounts, and his lack of any ownership of other items. He then went on to acknowledge he had made those declarations under penalty of perjury, before stating the declarations were true to the best of his knowledge. The court finds the declaration to substantially comply with Chapter 132 of the Civil Practice and Remedies Code. Under these facts, the court finds that Teixeira’s affidavit was sufficient to subject him to perjury charges if found untrue and that Hall’s argument that Teixeira’s affidavit was deficient because he swore only that his statements were “true to the best of my knowledge” is without merit. Hall also takes the position that the granting of indigency status by the trial court’s order was limited only to filing fees and that the court did not allow indigency generally and, thus, the order does not apply to the medical malpractice statute. The court notes that the statute does not require such an order. All that is necessary to avoid the 90-day time frame in which an expert report must be filed is to file the affidavit. The court also notes, of course, that even indigent plaintiffs are still required to file an expert’s report within 180 days of filing suit-or nonsuit the action. The court concludes the trial court acted outside the bounds of its discretion by dismissing Teixeira’s suit in light of his declaration of indigency. OPINION: Carter, J.; Morriss, C.J., Ross and Carter, JJ.

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