NO. 07-03-0220 -CV IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L D DECEM BER 18, 2003

______________________________

DAN THOMAS, Appellant
v. TEXAS DEPT. OF CR IMINAL JUSTIC EINST. DIV . & RICH ARD M CKEE , Appellees

_________________________________ FROM THE 258 TH DISTRICT COURT OF POLK COUNTY; NO. CIV20,089; HON. ELIZABETH E. COKER, PRES IDING

_______________________________ Memor andum Opi

nion

_______________________________ Before QUINN, REAVIS, and CAMPB ELL, JJ. Appellant Dan Thom as (Thom as), an inma te with the Tex as Departm ent of Crim inal Justice (TD CJ ) ap pea ls froman o rde r dis m iss ing, w itho ut p rej udic e, h is suit agai nst the TDCJ and Rich ard McKee (McKee). Through two issues, he conten ds that the trial co urt erred in dismissing his suit 1) prior to service and 2) because it had arguable basis in fact. We affir m thedism iss al.1 Section 14 .0 04ob lig at es an in mat e t o i de nt ify

( by affidavit or

de clar atio n) e ach su it pr

eviou sly brought by him and describe the oper ati v e f act s, pa rt ie s, c ause number, co urt, an d res ult. T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. §14.0 04(a) (1) & (2 ) (Vern on 20 02). 2 Applicable Law The trial court dismissed the suit in accordance with §14.003(b)(4) of th e Tex as C ivil Practice and Rem edies Code. The provision states that a trial court may consider whether
a claim is substantially similar to a prior claim in determ ining whether it is frivolous. T EX . C IV . P RAC . & R EM . C ODE A NN . §14.003(b)(4) (Vernon 2002). S tatute further provides that if the claim is held to b e frivolous , it m ay be dis m issed eithe r before or after s ervice o f process upon the defendant. Id. at §14.003(a)(2). Nex t, should the plain tiff

fail to com ply with §14.004 of the sam e Code, the trial court ma y then assum e that the action is sim ilar to another pre viousl y filed and, therefor e, frivol ous. 1 Thomas v. Kni ght , 52 S.W.3d 292, 295 (Tex. Ap p.–Corpus Christi 2001, pet. denied); Samuels v. Str ain , 11 S.W.3d 404, 406- 07 (Tex. Ap p.–Houston [1 stDist.] 2000, no pet.). Finally, the provisions of §14.001 et s eq. , apply when an inm ate sues as a pauper. T EX . C IV . P RAC . & R EM . C ODE §14.002(2). Application of Law Issue One – Dismissal Before Service Thomasinitially com plains of th e trial court dism issing the cause b efore the TDCJ and McKe e were served. We overrul e the point. Itis clear that Thomas

was an inmate w hen the suit w as in itiated. Sim ilarly clear is that he sought to p rosecute the m atter as a pauper. Co nsequently, the p rovisions of §14.001 et seq., of the Civil Practice and Rem edies Code apply to him

.2 Moreover, Thomas does not assert here thatsuch an affi dav it or decl aration was fil ed. Nor do we

fi nd one in the appellat e record. 3 Next, and as previously stated, §14.003(a) g rants the tri al court aut hority to di smiss
a suit “either before

or a fte r se rvice.” (E m pha sis added). Given that dism issal may occ ur “before” service, we rej ect Thom as’ contention that the trial court must ha ve first caused the defendants to be s erved before it could dismiss t he action. Is su e T wo – Ar

gu ab le Cla im In his second and last issue, Thom as asserts that the trial court erred in dismissing his suit becaus e hisclai m had an arguable basis in fact and law. W e again overrule the issue. Itis clear that the trial court d ismissed th e su it, witho ut p rej udic e, b eca useit deeme d the m atter

frivolous per

§14.003(b)(4). Sim ilarly clear i s that it deem ed the m atter frivolous because Thomas did not com ply with §14.004 of the Civil Practice and Rem edies Code. 2 Tha t is , be cau se h e did not file an a ffid avit

or declaration satisfying §14.004, the tri al cou rt could hav e 1)rea son ably ass um ed t hat

thepen ding act ion w

as s ubs tan tially similar to a pre vious claimand 2) t hereforedismissed theaction. Given this, we conclude tha t th e tr ial c our

t did not abuse its discretion in dismissing the cause w ithout prejudice. Thomas v. Kni

ght , supra ; Sam ue ls v . St ra in , supra . Ac cor ding ly, w e af

firm theord er o f dis m iss al.

Brian Quinn Justice