### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-09-00205- CV

Joe P ena, Sr., Ind ividu ally and on Behal f of

his Decease d Daugh ter , Kim berly Elizabeth P ena, Appellan t

v. P atric ia Stewart-F oulk s, M.D., Appellee

F ROM TH E DISTRI CT COURT O F B ELL COUNTY , 146 TH JUDICI AL DISTRICT NO. 235 ,377 -B , H ONO RAB LE RICK MO RRIS, J UDGE P RESIDING

M E M O R A N D U M O P I N I O N

J oe Pena, Sr., an inmate in the Texas Depa rtment of Criminal J ustice—Corre ctional I nstitut ions Division, appea ls the order of the trial court dismiss ing his pro se petition ag ainst Patricia Stewart-F oulks, M.D. (“D efe ndant”)

. Pena’s petition was filed on Marc h 26, 2009. Be fore service of proce ss on the Def

endant a nd without a fac t-finding hear ing, the trial court on Ma rch 27, 2009, dismiss ed the petition afte r finding i t failed to comply with chapter

14 of t he Tex as C ivil Practice and Remedies Code and that P en a’s suit was frivolous and malicious beca use it had no arg uable basis in law or fac t. See Tex. Civ. Prac. & R em . C ode Ann. §§ 14.001-.014 (West 2002). The dismiss al order does not specify the basis for the court’s finding that the claims wer e frivolous. For

rea sons set forth below, w e af firm the cour

t’s dismiss al orde r.STANDARD OF REVIEW We revie w a trial court’s chapter 14 dism i s s al of an indige nt inmate’s claim under

an abuse- of-discr etion stan d ar d

. Samuels v. Strain , 11 S.W .3d 404, 406 (Tex. App.—Houston [ 1 s t Di s t.] 2000, no pet.); Thomas v. W ichita Gen. Hosp. , 952 S.W .2d 936, 939 (T ex . App.—For

t Worth 1997, writ denied)

. A trial court abuses its discretion if it acts arbitra rily , unrea sonably , without re gard to g uiding leg al principles, or without supporting evidenc e. KMart Corp. v. Honey cutt , 24 S.W .3d 357, 360 (Tex. 2000); Bocque t v. Herring , 972 S.W .2d 19, 20 (Tex. 1998).
DISCUSSIO N

Section 14.003 of the Texas Civil Practice and Remedies Code provides multipl e g rounds for dismiss ing an indige nt inmate’s claim. S ee Tex. Civ. Prac. & Rem. Code Ann. § 14.003(a)

. Section 14.003(a) (2) provides that a court may dismiss a cla im, either bef ore or afte r service of proce ss, if the court finds that the claim is frivolous or malicious. Id. When a court dismiss es a c laim without a fac t-finding hear ing, the court c ould not have de termined that the suit had no arg uable basis in fac t. Harrison v. Texas Dep’ t of Crim. Justice , 915 S.W .2d 882, 887 (Tex. Ap p . —Houston [1st Dist.] 1995, no writ) (citing Hec tor v. Thaler , 862 S.W .2d 176, 178 (Tex. App.—Houston [1st Dist.] 1993, no writ)). We, there fore , interpre t the trial court’s action as
a findi n g t h at P ena’ s claims lack an arg uable basis in law. See Tex. Civ. Prac. & Rem. C o d e § 14.003(a) , (b); Retzlaff v. Texas Dep’ t of Crim. Justice , 94 S.W .3d 650, 653 (Tex. App.—Houston [14t h Dist.] 2002, pet. denied) ; Gill v. Boyd Distrib. Ctr. , 64 S.W .3d 601, 603 (Tex. App.—Texarkana 2 001, pet. denied) ; McD onald v. Houston Dairy , 813 S.W .2d 238, 239 2(Tex. App.—Houston [1s t Dist.] 1991, no writ). We must deter

mine whether the trial court proper ly found there is no arg uable basis in law for Pena’s claims. Jo h n s on v. Lynaugh , 796 S.W .2d 705, 706 (Tex. 1990). Whil e the dismiss al of inmate l i t igation under chapte r 14 is g ener ally revie wed for an abuse of discretion, whether there was an arg uable basis in law for an inmate’s claims is a question of law that we revie w de novo. Minix v. Gonzalez , 162 S.W .3d 635, 637 (Tex. App.—Houston [14t h Dist.] 2005, no pet.); Gill , 64 S. W

. 3 d at 6 0 3

. Fo r a claim to have no arg uable basis in law, it must be based on “‘a n indisputably meritless leg al theory ’” or wholly incre dible or irrational fac tual alleg ations. Gi l l , 64 S.W .3d at 603 (quoting Neitzke v. W illiams , 490 U.S. 319, 327 (1989), and citing Denton v. Hernande

z , 504 U.S. 25, 33 (1992))

. Acc ording ly , we examine Pena’s petition to decide whether , as a ma tter of law , it stated a ca use of a ction that would authorize relief

. Factual A llegations

Pena’s petition contained the following alleg ations. On September 23, 1993, Pena, his wife, and daug hter Kimberly wer e involved in a motor vehicle acc ident. Pena’s wife was killed, and Kimberly was ejec ted from the truck. Ki m b erly was transporte d by ambulance to Rockdale Memorial Hospital wher e the doctors diag nosed her with vomiti ng , bruises to the rig ht side of her hea d , an d abra sions to her posterior. L ater that same day she was transporte d to Scott and Whit e Hospital in Temple, wher e Def endant place d her in the intensive car e unit. Be fore rele asing her on September 29, 1993, Def endant made a last evalua tion of Kimberly

. Pena allege d De fendant’s assessment of Kimberly was the following : “A 21-month-old who was fortunate to ha ve survived

a ca r ac cident, with possibilit y of re nal trauma .”

3O n D e c e mber 16, 1993, Kimberly was taken to the family pediatric ian w h o d ia g n o s e d

her with pneumonia. Howeve r, afte r x -ra y s, a clot showed up and Kimberly was sent to Br acke nridg e Hospital in Austin. At Br acke nridg e, Kimberly was diag nosed with having a cra cked rib and a blood clot under he r lung

. Twenty -five months afte r Defenda nt’s las t evalua tion of Kim berly , she di ed of her injuries. Kimberly

was thre e y ear s and seve n-months-old. Cause of Action

Pena pleade d Def

endant was medically neg lige nt in rele asi ng Kimberly from the hospital with the possibili ty of rena l trauma and in overlooking her internal injuries that later cause d her death. He further contende d that, beca use he only lear

ned of Def

endant’ s actions afte r rec eiving medical rec ords from Scott and Whit e Hospital on J anuar y 25, 2005, his neg lige nce claims wer e not barr ed by limit ations. Section 74.251(b) of the Texas Civil Practice and Remedies Code entitled, “Statute of L imitations on Hea lth Care L iability Claims,” states the following :
A claimant must b ri n g a health car e li ability claim not later than 10 y ear s afte r the date of the act or omission that g ives rise to the claim. This subsection is inte n d ed as a statute of repose so that all claims must be broug ht within 10 y ear s or they are time barre d.

Tex. Civ. Prac. & R em . C o d e Ann. § 74.251(b) (West 2005). September 29, 1993, is the date of Def endant’ s assessment of Kimberly ’s condition, the act that alleg edly g ave rise to Pena’s claim of medical neg lige nce. Pena filed his claim o n M ar ch 2 6 , 2009, more than 10 y ear s afte r

4September 29, 1993. Pena ’s hea lth care liability claim, there fore , is tim e bar red. See id.
CONCLUSION Having deter

mined that Pena’s health car e l iability claim i s time barr ed, we aff irm the trial cour

t’s order of dismissal.

__________________________________________

David Pury ear , J ustice Be fore J ustices Patterson, Pury ear and Pember

ton Affir med Filed: Nove mber 17, 2010

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