German Rodriguez v. Patricia Marshall--Appeal from 1A District Court of Tyler County

IN THE

TENTH COURT OF APPEALS

No. 10-04-00222-CV

German Rodriguez,

Appellant

v.

Patricia Marshall,

Appellee

From the 1A District Court

Tyler County, Texas

Trial Court No. 18973

MEMORANDUM Opinion

  German Rodriguez is an inmate in a Texas prison. He filed a pro se in forma pauperis suit in the district court naming two employees of the Texas Department of Criminal Justice Correctional Institutions Division, the Department itself, and the Texas Department of Public Safety as co-defendants. The district court dismissed Rodriguez s claims with prejudice under section 14.003 of the Texas Civil Practice and Remedies Code. Rodriguez appeals pro se, arguing that the trial court erred (1) in dismissing his appeal without affording him the opportunity to rebut the defendants motion to dismiss and (2) in dismissing the suit with prejudice and denying him the opportunity to amend his complaint to overcome any deficiencies.

Background

Rodriguez filed a petition for expunction of his DNA records. In his petition, he claims that the defendant employees took his blood sample against his will and without authority of law. The defendants filed a motion to dismiss, arguing that Rodriguez s petition failed to comply with the requirements of sections 14.004, 14.005, and 14.006 of the Texas Civil Practice and Remedies Code and arguing that Rodriguez s suit is barred by the statute of limitations.

Standard of Review

When an inmate plaintiff files an affidavit of inability to pay, the trial court has broad discretion to dismiss the suit as frivolous or malicious. Tex. Civ. Prac. & Rem. Code Ann. 14.003(a)(2), (b)(2) (Vernon 2002); Perales v. Kinney, 891 S.W.2d 731, 733 (Tex. App. Houston [1st Dist.] 1994, no writ). Generally the dismissal of inmate litigation under Chapter 14 is reviewed for abuse of discretion. Hickson v. Moya, 926 S.W.2d 397, 398 (Tex. App. Waco 1996, no writ.).

Rodriguez argues that the trial court erred in dismissing his suit without giving him the opportunity to reply to the defendants motion to dismiss. The trial court may dismiss a suit under Chapter 14 without affording the inmate an opportunity to amend his pleadings. Aguilar v. Chastain, 923 S.W.2d 740, 743 (Tex. App. Tyler 1996, writ denied). The trial court did not abuse its discretion in not giving Rodriguez an opportunity to respond to the motion to dismiss. We overrule this issue.

Rodriguez also argues that the trial court erred in dismissing his suit with prejudice. Dismissal with prejudice constitutes adjudication on the merits and operates as if the case had been fully tried and decided. Mossler v. Shields, 818 S.W.2d 752, 754 (Tex. 1991). Dismissal with prejudice may also be proper as a sanction for abuse of discovery, on the failure of a plaintiff to amend deficient pleadings when given that opportunity, for the violation of a pretrial order, or on agreement of the parties. Lentworth v. Trahan, 981 S.W.2d 720, 722 (Tex. App. Houston 1998, no pet.).

The record does not reveal the trial court s reasons for dismissing Rodriguez s suit. However, the order dismissing the suit states that the defendants motion to dismiss is meritorious and should be granted. In support of that motion, the defendants argued that Rodriguez s petition failed to include information required by section 14.004(a)(2), failed to comply with section 14.005, and failed to present a certified copy of his trust account statement. See Tex. Civ. Prac. & Rem. Code Ann. 14.004(a)(2), 14.005, 14.006 (Vernon 2002). Dismissal for failure to comply with procedural rules governing filing of inmate litigation is not a ruling on the merits. Hughes v. Massey, 65 S.W.3d 743, 746 (Tex. App. Beaumont 2001, no pet.). If the deficiency in the inmate s suit may be remedied in a subsequent filing, then a dismissal with prejudice is improper. Hickman v. Adams, 35 S.W.3d 120, 124 (Tex. App. Houston [14th Dist.] 2000, no pet.).

The defendants also argued (and they reassert the argument on appeal) that Rodriguez s petition has no basis in law because constitutional claims have a two-year statute of limitations period. We do not understand Rodriguez to be making a constitutional claim. Rather, his petition specifically states that he is suing for expunction under section 55.01 of the Texas Code of Criminal Procedure. Because the petition clearly fails to meet the requirements of a petition for an expunction, and because he fails to allege facts that would entitle him to an expunction order under the statute, dismissal was proper. See Tex. Code Crim. Proc. Ann. art. 55.01, 55.02 (Vernon Supp. 2004-05). However, because the merits of Rodriguez s claim do not appear to have been adjudicated, dismissal with prejudice was improper. The proper order is dismissal without prejudice.

CONCLUSION

We reform the judgment to provide that the cause is dismissed without prejudice. As reformed, the judgment is affirmed.

BILL VANCE

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Chief Justice Gray dissenting)

Reformed and affirmed

Opinion delivered and filed August 10, 1005

[CV06]