NO. 07-02-0514-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
NOVEMBER 5, 2003
______________________________
RICKY STARKS, #733678, APPELLANT
V.
THE TEXAS DEPARTMENT OF CRIMINAL JUSTICE, APPELLEE
_________________________________
FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;
NO. 089812-00-E; HONORABLE ABE LOPEZ, JUDGE
_______________________________
Before REAVIS and CAMPBELL, JJ., and BOYD, S.J.1
Memorandum Opinion
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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).
Appellant Ricky Starks appeals from an order dismissing his pro se, in forma
pauperis suit under Chapter 14 of the Texas Civil Practice and Remedies Code (the Code).
We affirm the judgment of the trial court.
Procedural History
Appellant is an inmate at the Clements Unit of the Texas Department of Criminal
Justice, Institutional Division (the Department). On April 29, 2002, he filed suit against the
Department alleging he had sustained mental and physical suffering as a result of being
obliged to sit on a concrete floor because of a lack of adequate seating in the penitentiary
day room. On June 19, 2002, the Department filed its answer and, incident to that answer,
filed a special exception seeking a dismissal of the suit on the basis that appellant had not
filed an affidavit sufficient to satisfy section 14.004 of the Code and, in particular, that
appellant had failed to include the operative facts about previous suits filed by him.
On June 20, 2002, the trial court entered an order sustaining the exception and
allowing appellant ten days to “re-plead his cause of action against Defendant in
conformity with this order.” In response to that order, appellant filed a sequence of
pleadings in which he asserted that his failure to meet the requirements of the statute were
because Chapter 14 was not included in the copy of the Code in the prison library, that the
trial court should take judicial notice of his prior suits which were dismissed on a “time
barred basis,” and that the “insufficient issues in his present affidavit are the result of
prejudice caused to him by the defendant.” On October 17, 2002, the trial court executed
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the order dismissing appellant’s suit on the basis that it was “FRIVOLOUS for failure to
comply with Chapter 14 of the Texas Civil Practices [sic] and Remedies Code.”
In presenting his appeal, and in various issues directed at the same question,
appellant contends the trial court reversibly erred in dismissing his suit because of a failure
to comply with Chapter 14 of the Code. In his reply brief, he focalizes his challenge to be
the “controlling error is his [appellant’s] allegation of being deprived of total access to the
only information relevant to the issue upon which his lawsuit was dismissed, during the
relevant time period he was required to prepare and file the action.”
Discussion
As an inmate, appellant’s suit is governed by Chapter 14 of the Texas Civil Practice
and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. §§ 14.001-014 (Vernon
2002); Thompson v. Henderson, 927 S.W.2d 323, 324 n.1 (Tex. App.–Houston [1st Dist.]
1996, no writ). Chapter 14 was designed to control the flood of frivolous lawsuits being
filed in the courts of this state by prison inmates that consume valuable judicial resources
with little offsetting benefits. Hickson v. Moya, 926 S.W.2d 397, 399 (Tex. App.–Waco
1996, no writ). Under this chapter, a trial court has broad discretion to dismiss an inmate’s
suit if it finds that the claim is frivolous or malicious. Hickman v. Adams, 35 S.W.3d 120,
123 (Tex. App.–Houston [14th Dist.] 2000, no pet.).
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A trial court’s dismissal of a suit such as this one in which the inmate has filed an
affidavit or declaration of inability to pay costs is reviewed under an abuse of discretion
test. Barnum v. Munson, 998 S.W.2d 284, 286 (Tex. App.–Dallas 1999, pet. denied);
McCollum v. Mt. Ararat Baptist Church, Inc., 980 S.W.2d 535, 536 (Tex. App.–Houston
[14th Dist.] 1998, no pet.); Hickson v. Moya, 926 S.W.2d at 398-99. A court abuses its
discretion if it acts without reference to guiding rules or principles. Clark v. J. W. Estelle
Unit, 23 S.W.3d 420, 421 (Tex. App.–Houston [1st Dist.] 2000, pet. denied). It is
discretionary with the court to conduct a hearing to determine whether an inmate’s suit
should be dismissed. Thomas v. Wichita General Hosp., 952 S.W.2d 936, 938 (Tex.
App.– Fort Worth 1997, pet. denied).
Section 14.003 of the Code provides that a trial court may dismiss a claim if the
court finds the claim to be frivolous or malicious. Tex. Civ. Prac. & Rem. Code Ann. §
14.03(a)(2) (Vernon 2002). In determining whether a suit is frivolous or malicious, the
court may consider, inter alia, whether the claim is substantially similar to a previous claim
filed by the inmate because the claim arises from the same operative facts. Id. §
14.003(b)(4).
In this case, even though he was given a specific opportunity to do so, other than
additional general allegations, appellant failed to amend his affidavit to allege the specific
operative facts of his prior suits. Under this record, we cannot say that the trial court erred
in its dismissal of this inmate suit.
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Accordingly, all of appellant’s points are overruled, and the judgment of the trial
court is affirmed.
John T. Boyd
Senior Justice
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