1 John T. Boyd, Chi ef Ju stice (Ret.), Sevent h Court of Appeals, s itting by

assignment . Tex. Gov ’t Code Ann. §75.002(a)(1) (Vernon Supp. 2003). NO. 07-02-0514 -CV IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L E NOVEM BER 5, 2 003

______________________________ RICKY STARKS, #733678, APPE LLANT

V. THE TEXAS DEPARTMENT OF CRIMINAL JUSTI CE, APPELLEE

_________________________________ FROM THE 108 TH DISTRICT COURT OF POTTER COUN TY; NO. 089812-00-E; H ONORAB LE ABELOPEZ, JU DGE

_______________________________ Before REAVIS and CAMPB ELL, JJ., and BOYD, S.J. 1
Mem oran dum Opini on2

Appellant Ricky Starks a ppe als from an order di smissing his pro se, in forma pa up er is suit under Chapter 14 of the Tex as Civil Pra ctice and Rem edies Cod e (the C ode). W e affirm thejudgm ent of the trial court.
Proce dural Histo ry Appellant is an inmate at the Clem en ts Unit of the Tex as Departm ent of Crim inal Justice, Institutional Division (the De partm ent). On April 29, 2002, he filed suit against the Departm entalleging he had sustained mental and phys ical suffering as a result of being obliged to sit on a concre te floor be cause of a lack of adequa te seat ing in the pe nitentiary dayroom. On June 19, 2002, the Departm ent filed its answer and, incide nt to t hat answer, filed a s pec ial ex

cep tion see king a dis m iss al of thesuit on the basis that appellant had not filed an affidavit sufficient to satisfy section 14.004 of the Code and, i n pa rtic ula r, that appellant had failed to include the operative facts about previous suits filed by him.
On J une20, 200 2, t he t rial cour t en ter ed a n or der sus tain in g the exc ep tion and allowing appellant ten days to “re-plead his cause of action against D efend ant in conform ity with this order.” In respo nse t o that o rder, appellant filed a sequence of pleadings in which he asserted t hat his failure to m eet therequirem ents of the statute w

ere because Chapter 14 was not included in the copy of the Code in the prison library, that the trial court

should take j ud i ci al no ti ce of hi s p ri or su i ts whi ch wer e d i smi ss ed on a “ ti me barred basis,” and that the “insufficient issues in his present affidavit are the result of prejudice caused to himby thedefenda nt.” On October 17 , 2002, the trial court exec uted3

the o rder d ismissing appe llan t’s suit on the basi s that it was “ FRIVOLOUS for failure to
com ply w ith Chapter 14 of the Tex as Civil Pra ctices [sic] and Rem edies Cod e.”
In presenting his appeal, and in various issues directed at the sam e qu est ion, appellant con ten ds t he t rial cour t re ver sibly err ed in dism iss ing h is suit because of a failure to com ply

with Chapter 14 of the Code. In h is reply brief, he focalizes his challenge to be the “controlling error is hi s [appellant’s] allegation of being deprived of total access to the only inf ormation relevant to t he issue upon wh ich his lawsuit was dismissed, during the relevant time period he w as required to prepare and file the action.”

Discussion
As an in m ate , ap pella nt’ s s uit is governed by Chapter 14 of the T exas Civil Practi ce and Rem edies Code. See Tex. Civ. P rac. & Rem . Code Ann. §§ 14.001-014 (Vernon 2002); Thompson v. Henderson , 927 S.W.2d 323, 324 n.1 (Tex. App.– Houston [1 stDist.] 1996, no writ). Chapter 14 was designed to control the flood of frivolous lawsuits being filed in the courts of this sta te byprison inmates th at consum e valuable judicial resources with little offsetting benefits. Hi ckson v. Mo ya , 926 S.W .2d 397, 399 (T ex. App.–W aco 1996, no writ). Under thi s chapter, a tri al court has b road discr etion to di smiss an inmate’s suit if it finds that the clai m is frivolous or malicious. Hick man v. Adams, 35 S.W.3d 120, 123 (Tex. A pp.–Houston [14 th Dist.] 2000, nopet.).4

A trial court’s dismissal of a suit such as this one in w hich the inmate has filed an aff idav itor declaration of inabili ty to pay costs is reviewed under an abus e of discretion test. Barnum v. Munson , 998 S.W.2d 284, 286 (Tex. App .–D alla s 1999, pet. de nied); McCollumv. Mt. Ararat Baptist Church, Inc. , 980 S.W.2d 535, 536 ( T ex. A pp.–Houston [14 th Dist.] 1998, no pet.); Hickson v. Moya , 926 S.W.2d at 3 98-99. A court abus es its disc ret ion if

itacts w ithout reference to guiding rules or principl es. Clark v. J. W. Estelle Un it , 23 S.W.3d 420, 4 21 (Tex. App.–Houston [ 1 stDis t.] 200 0, p et. den ied) . I t is discretiona rywith the court to conduct a hearing to de te rmi ne w het her an in m ate ’s suit sho uld be dismissed. Thomas v. Wichi ta General Hosp. , 9 52 S.W .2 d 9 36 , 9 38 (T ex. App.– Fort Worth 1997, p et. den ied).
Section 14 .003 of the Code prov ides that a trial court may dismiss a c laim if the
c ourtfinds th e claim to be frivolous or m alicious. Tex. Civ. Prac. & Rem . Code Ann. § 14.03(a)(2) (Vernon 2002). In determining whether a sui t is frivo lous orma licious, the court ma y consider, int er

alia , whether

the claim is substantially similar to a pre viou s c laim filed by theinm ate because th e claim ari se s f ro m the sam e operative facts. Id. § 14.003(b )(4).
In this case, even though he was given a specific opportunity to do so, oth er than additional general allegations, appell ant failed to am end his aff idav it toalleg e th e sp ecif ic operati ve facts of

his prior suits. Under this record, we cann ot say that the t rial court erred in its dismissal of this inmate suit.5

Accordingl y, all of appellant’s points are o verruled, a nd the jud gment of the trial court is affirmed.
John T. Boyd Senior Justice