Dan Thomas v. Texas Youth Council, et al--Appeal from 52nd District Court of Coryell County

IN THE

TENTH COURT OF APPEALS

No. 10-92-022-CV

DAN THOMAS,

Appellant

v.

TEXAS YOUTH COUNCIL, ET AL.,

Appellees

From the 52nd District Court

Coryell County, Texas

Trial Court # 26,044

O P I N I O N

This is an attempted appeal by petition for writ of error from an order of dismissal signed July 17, 1991. The trial court dismissed the cause prior to service of process, as provided by section 13.001 of the Texas Civil Practice & Remedies Code, on the basis that the claim "has no arguable basis in law or fact." See Tex. Civ. Prac. & Rem. Code Ann. 13.001(b)(2) (Vernon Supp. 1992). Because a writ of error cannot be maintained in the absence of error evident on the face of the record, we affirm the dismissal. See id. 51.013 (Vernon 1986); Tex. R. App. P. 45.

Appellant, while incarcerated in the Texas Department of Criminal Justice, Institutional Division, filed a petition in the 52nd Judicial District Court, Coryell County, alleging that he had sustained personal injuries and damages in the amount of $100,000 because the Texas Youth Council, through its employees, sold him cigarettes from November 1965 to October 1970 in violation of Texas law prohibiting the sale of cigarettes to minors. Appellant alleges that he only realized that such a practice was illegal after reading an article in a June 1991 newspaper.

To directly attack a judgment by a writ of error, the petition must: (1) be brought within six months after the judgment was signed; (2) by a party to the suit; (3) who did not participate in the actual trial; and (4) the error complained of must be apparent on the face of the record. See Tex. Civ. Prac. & Rem. Code Ann. 51.013 (Vernon 1986); Tex. R. App. P. 45; Brown v. McLennan County Children's Protective Servs., 627 S.W.2d 390, 392 (Tex. 1982).

While the record reflects that Appellant has met the first three requirements, no error appears on the face of the record. Even if Appellant had stated a legally viable cause of action, the allegations of his petition show any claim he might have asserted is barred by limitations. We affirm the trial court's dismissal order.

PER CURIAM

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed April 29, 1992

Do not publish