Opinion issued October 2, 2003
In The
Court of Appeals
For The
First District of Texas
NO. 01-02-01083-CV
LAWRENCE EDWARD THOMPSON, Appellant
V.
JERRY SILVAS, Appellee
On Appeal from the County Court of Law
Walker County, Texas
Trial Court Cause No. 5077
MEMORANDUM OPINION
Appellant, Lawrence Edward Thompson, an inmate of the Texas Department of Criminal Justice-Institutional Division (TDCJ-ID), proceeding pro se and in forma pauperis, challenges the trial court’s order dismissing, as frivolous, his lawsuit against appellee, Jerry Silvas, a prison guard at the Eastham Unit, where appellant was incarcerated. In his sole issue, appellant contends that the trial court abused its discretion in dismissing his lawsuit under chapter 14 of the Texas Civil Practice and Remedies Code. We affirm.
Background
Appellant contends that Officer Jerry Silvas dropped and damaged appellant’s typewriter during a cell search. According to appellant’s pleadings, he filed a “Step 1” internal grievance on May 3, 1999, which was denied. Appellant contends he then filed a “Step 2” grievance in June 1999.
In January 2000, appellant originally brought suit seeking $150 for damage to his typewriter. Appellant subsequently filed an amended petition, submitting his trust account affidavit to the court and increasing his requested damages from $150 to $5,000. In response, Silvas filed an original answer, a plea to the jurisdiction, and a motion to dismiss. The trial court granted the motion to dismiss.
Standard of Review
We review a trial court’s dismissal of a suit brought by an inmate under chapter 14 for an abuse of discretion. Moreland v. Johnson, 95 S.W.3d 392, 394 (Tex. App.—Houston [1st Dist.] 2002, no pet.). A trial court abuses its discretion if it acts without reference to guiding rules or principles. Brewer v. Collins, 857 S.W.2d. 819, 822 (Tex. App.—Houston [1st Dist.] 1993, no writ).
Analysis
Appellant argues that the trial court abused its discretion in dismissing his lawsuit because: (1) he gave the trial court an explanation for the absence of documents from his pleadings; (2) the trial court should have given him more opportunity to correct deficiencies in his pleadings; and (3) appellee’s motion to dismiss was “an unauthorized procedural device.”
An indigent inmate must file a separate affidavit or declaration identifying and describing each suit he has previously brought, a statement providing the date of the final order affirming the dismissal if the suit was dismissed as frivolous or malicious, and a certified copy of the trust account statement required by section 14.006(f). Tex. Civ. Prac. & Rem. Code Ann. § 14.004 (Vernon 2002).
Here, appellant’s petition was accompanied by an affidavit of his inability to pay costs, an “Affidavit of Grievance System Decision and Exhaustion of Administrative Remedies,” and an affidavit of his previous filings. However, while appellant’s affidavit describing his previous lawsuits listed six causes he previously filed in both state and federal courts, it also admitted there were other causes he had filed that were not detailed. Regarding the latter cases, appellant simply stated that “because of the passage of time and not having the records of these causes, Affiant is unable to give the court any relevant information concerning these causes.” In her motion to dismiss appellant’s petition as frivolous, Silvas alleged, among other things, that appellant had not complied with the filing requirement of chapter 14 because appellant failed to file the affidavit of previous filings required by section 14.004.
The purpose of the statute requiring an inmate bringing suit to file an affidavit relating to his previous filings is to curb the flood of “constant, often duplicative,” inmate litigation by requiring inmates to notify the trial court of previous litigation and the outcome. Clark v. Unit, 23 S.W.3d 420, 422 (Tex. App.—Houston [1st Dist.] 2000, pet. denied.). From this information, the trial court can determine whether the suit is frivolous or duplicative. Id. When an inmate does not comply with the statutory requirements in filing an affidavit or unsworn statement of his inability to pay costs, the trial court is entitled to assume that the suit is substantially similar to one previously filed by the inmate, and is therefore frivolous. Bell v. Tex. Dep’t of Criminal Justice-Institutional Div., 962 S.W.2d 156, 158 (Tex. App.—Houston [14th Dist.] 1998, pet. denied). Because appellant failed to comply with the statutory requirements for inmate litigation, the trial court did not err in dismissing his case.
Appellant contends it is “unfair” that the Texas Attorney General’s Office is the “only” entity allowed to utilize a motion to dismiss, but inmates are forbidden from exercising the motion. While it is true that the Texas Rules of Civil Procedure contain no provisions analogous to Federal Rule of Civil Procedure 12(b) dismissal motions, this discrepancy does not violate any federal law or infringe upon the rights of Texas citizens. Statutes governing procedural requirements of civil inmate litigation do not violate the Supremacy Clause of the United States Constitution, as they do not operate as an obstacle to carrying out valid objectives of federal law, and inmates’ meritorious federal claims can still be adjudicated. Thomas v. Wichita Gen. Hosp., 952 S.W.2d. 936, 939–40 (Tex. App.—Fort Worth 1997, writ denied). Instead, such statutes merely impose neutral procedural requirements on pro se, indigent inmates who file civil claims in state court, which enable trial courts to discern whether the case is frivolous. Id. at 940. Further, the statutes do not mandate that a trial court dismiss an inmate’s claim if the required affidavits are not filed, nor does it authorize a trial court to refuse to consider merits of a valid claim. Id. Accordingly, the inability of an inmate to utilize a dismissal motion does not deny the inmate access to the courts, nor does it impair an inmate from filing a meritorious suit.
Finally, we note that the trial court dismissed appellant’s suit “with prejudice.” Dismissal with prejudice constitutes an adjudication on the merits and operates as if the case had been fully tried and decided. See Ritchey v. Vasquez, 986 S.W.2d 611, 612 (Tex. 1999); Mossler v. Shields, 818 S.W.2d 752, 754 (Tex. 1991). The trial court’s order should have recited that appellant’s suit was dismissed “without prejudice.” See Thompson v. Texas Dep’t of Criminal Justice-Institutional Div., 33 S.W.3d 412, 415 (Tex. App.—Houston [1st Dist.] 2000, pet. denied); Lentworth v. Trahan, 981 S.W.2d 720, 722 (Tex. App.—Houston [1st Dist.] 1998, no pet.). Thus, we reform the trial court’s order to state that appellant’s lawsuit is dismissed without prejudice.
Conclusion
We affirm the order as reformed. All pending motions are denied.
George C. Hanks, Jr.
Justice
Panel consists of Justices Taft, Jennings, and Hanks.