TERRY PITTS #677873 v. TEXAS DEPARTMENT OF CRIMINAL JUSTICE, ET AL.--Appeal from 156th District Court of Bee County

NUMBER 13-01-151-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

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  TERRY PITTS, Appellant,

v.

  TEXAS DEPARTMENT OF CRIMINAL JUSTICE, ET AL., Appellees.

___________________________________________________________________

On appeal from the 156th District Court

of Bee County, Texas.

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O P I N I O N

Before Chief Justice Valdez and Justices Dorsey and Rodriguez

Opinion by Justice Rodriguez

Appellant, Terry Pitts, brings this appeal following an order dismissing with prejudice his pro se, in forma pauperis suit. By three points of error, appellant generally contends the trial court erred by dismissing his suit. We modify the judgment and affirm as modified.

Appellant is an inmate at the Wynne Unit of the Texas Department of Criminal JusticeBInstitutional Division. Appellant filed a lawsuit against appellees[1] alleging they negligently and intentionally lost his personal property during a unit transfer. Appellees answered and filed a motion to dismiss pursuant to chapter fourteen of the Texas Civil Practice and Remedies Code contending appellant failed to comply with chapter fourteen, and that his claim was frivolous. See Tex. Civ. Prac. & Rem. Code Ann. '' 14.004, 14.005 (Vernon 2002). Without a hearing, the trial court dismissed appellant=s suit with prejudice. This appeal ensued.

I. Standard

We apply an abuse of discretion standard of review in the dismissal of an action under chapter fourteen of the Texas Civil Practice and Remedies Code. Allen v. State, 80 S.W.3d 681, 682 (Tex. App.BHouston [1st Dist.] 2002, pet. denied). To establish an abuse of discretion, appellant must show that the trial court=s action was arbitrary or unreasonable in light of all the circumstances in the case; i.e., whether the trial court acted without reference to any guiding rules and principles. Thomas v. Knight, 52 S.W.3d 292, 294 (Tex. App.BCorpus Christi 2002, pet. denied). Where the trial court has not specified the grounds for dismissal in its dispositive order, as in this instance, the order will be affirmed if any of the theories advanced in the motion to dismiss supports the dismissal. Walker v. Gonzales County Sheriff=s Dep=t, 35 S.W.3d 157, 162 (Tex. App.BCorpus Christi 2000, pet. denied).

II. Dismissal and Hearing

By his second point of error, appellant contends the trial court erred in dismissing his suit on the basis that it did not comply with the requirements of sections 14.004 and 14.005 of the civil practice and remedies code. See Tex. Civ. Prac. & Rem. Code Ann. '' 14.004, 14.005.

Section 14.004 provides that:

(a) An inmate who files an affidavit or unsworn declaration to pay costs shall file a separate affidavit or declaration:

(1) identifying each suit, other than a suit under the Family Code, previously brought by the person and in which the person was not represented by an attorney, without regard to whether the person was an inmate at the time the suit was brought; and

(2) describing each suit that was previously brought by:

(A) stating the operative facts for which relief was sought;

(B) listing the case name, cause number, and the court in which the suit was brought;

(C) identifying each party named in the suit; and

(D) stating the result of the suit, including whether the suit was dismissed as frivolous or malicious under Section 13.001 or Section 14.003 or otherwise.

Id. ' 14.004(a) (Vernon 2002). The filing requirements of section 14.004 are designed to assist the trial court in curbing the flow of frivolous suits, and are an essential part of the process by which trial courts accomplish this goal. Hickson v. Moya, 926 S.W.2d 397, 399 (Tex. App.BWaco 1996, no writ). Where the inmate fails to comply with the filing requirement detailed in section 14.004, the trial court is entitled to assume that the suit is substantially similar to one previously filed by the inmate, and is frivolous. Jackson v. Tex. Dep=t of Crim. Justice Inst. Div., 28 S.W.3d 811, 814 (Tex. App.BCorpus Christi 2000, pet. denied). The failure to submit an affidavit or declaration complying with section 14.004 is sufficient grounds for a trial court=s dismissal of the suit. See Thomas, 52 S.W.3d at 295; Clark v. J.W. Estelle Unit, 23 S.W.3d 420, 422 (Tex. App.BHouston [1st Dist.] 2000, pet. denied).

In this instance, appellant mentions litigation in the body of his original petition that is not mentioned in his affidavit. Appellant asserts that the suit mentioned in his petition is the same one listed in his affidavit. However, the styles and cause numbers of the two cases are different. Thus, because there is a suit mentioned in his original petition that is not listed in his affidavit, appellant has failed to file an affidavit describing the nature and claims of all of his previous suits. See Tex. Civ. Prac. & Rem. Code Ann. ' 14.004(a). Appellant has failed to comply with section 14.004. See id. We find the trial court did not abuse its discretion in dismissing the suit on this basis. See Thomas, 52 S.W.3d at 295; Clark, 23 S.W.3d at 422.

Appellant also contends the trial court erred by dismissing his case without a hearing. Section 14.003 states that the trial court, in determining whether to dismiss a case, may hold a hearing. See id. ' 14.003(c) (Vernon 2002) (emphasis added). The use of the term Amay@ clearly indicates that the trial court has discretion in deciding whether to hold a hearing or not; therefore, it was not incumbent upon the court to conduct a hearing before dismissing appellant=s case. See Thomas v. Wichita Gen. Hosp., 952 S.W.2d 936, 938 (Tex. App.BFort Worth 1997, pet. denied) (finding term Amay,@ used in section 14.003(c), indicated trial court=s decision to hold hearing was discretionary). Appellant=s second point of error is overruled.[2]

III. Dismissal with Prejudice

By his third point of error, appellant contends the trial court erred by dismissing his case with prejudice.

Dismissal with prejudice functions as a final determination on the merits and operates as if the case has been fully tried and decided. Thomas, 52 S.W.3d at 295 (citing Ritchey v. Vasquez, 986 S.W.2d 611, 612 (Tex. 1999)). An order dismissing with prejudice has full res judicata and collateral estoppel effect, barring subsequent litigation of the same cause of action or issues between the same parties. Id. Dismissal with prejudice is proper in only a limited number of circumstances, and appellant=s claim does not fall under any one of the categories that are appropriate for dismissal with prejudice. See Lentworth v. Trahan, 981 S.W.2d 720, 722-23 (Tex. App.BHouston [1st Dist.] 1998, no pet.); see also Univ. of Tex. Med. Branch v. Hohman, 6 S.W.3d 767, 771 (Tex. App.BHouston [1st Dist.] 1999, pet. dism=d w.o.j.) (dismissal with prejudice on sovereign immunity grounds). Failure to comply with the conditions set out in section 14.004 does not warrant dismissal with prejudice. See Thomas, 52 S.W.3d at 295; Williams v. Brown, 33 S.W.3d 410, 412 (Tex. App.BHouston [1st Dist.] 2000, no pet.). Appellant=s third point of error is sustained.

Accordingly, we modify the trial court=s order to provide that the claim is dismissed without prejudice and affirm the judgment as modified.

NELDA V. RODRIGUEZ

Justice

Do not publish.

Tex. R. App. P.47.3.

Opinion delivered and filed

this 27th day of November, 2002.

[1]Appellees include: Wayne Scott; Gary Johnson; Douglas Dretke; Jeff Marton; Thomas Prasifka; Gilbert Cervantes; Juan Quintero; Willie Martin; Robert Dickey; and the Texas Department of Criminal JusticeBInstitutional Division.

[2]Because of the disposition of appellant=s second point of error, we need not address his first point of error. See Tex. R. App. P. 47.1; see also Walker v. Gonzales County Sheriff=s Dep=t, 35 S.W.3d 157, 162 (Tex. App.BCorpus Christi 2000, pet. denied).