Opinion
No. 04-03-00520-CV
Delivered and Filed: April 21, 2004.
Appeal from the 258th Judicial District Court, Polk County, Texas, Trial Court No. CIV20,558, Honorable Robert H. Trapp, Judge Presiding.
Affirmed As Modified.
Sitting: Sarah B. DUNCAN, Justice, Sandee Bryan MARION, Justice, Phylis J. SPEEDLIN, Justice
MEMORANDUM OPINION
James Carl Hollis ("Hollis") filed a pro se civil rights action against three employees of the Texas Department of Criminal Justice-Institutional Division. The trial court dismissed his complaint with prejudice and assessed court costs in the amount of $160.00 against him. On appeal, Hollis contends the trial court erred in: 1) dismissing his complaint as frivolous; 2) dismissing his complaint with prejudice; and 3) assessing court costs against him. We modify the judgment to provide that the dismissal is without prejudice, and affirm the judgment as modified.
Standard of Review
The dismissal of a suit brought by an inmate who has filed an affidavit or declaration of inability to pay costs is reviewed under an abuse of discretion standard. Walker v. Gonzales County Sheriff's Dep't, 35 S.W.3d 157, 161 (Tex. App.-Corpus Christi 2000, pet. denied). In establishing that the trial court abused its discretion, the complaining party must show that the trial court acted without reference to any guiding rules and principles. Id.
Analysis
In his first issue, Hollis contends the trial court erred in dismissing his complaint as frivolous pursuant to section 14.003(b)(4) of the Texas Civil Practice and Remedies Code. When an inmate files suit with an affidavit or unsworn declaration of inability to pay costs, he must comply with the filing requirements of Chapter 14 of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. Rem. Code Ann. § 14.001, et al. (Vernon 2002). Section 14.003 authorizes dismissal of an inmate's claim if the court finds: 1) the allegation of poverty in the affidavit or unsworn declaration is false; 2) the claim is frivolous or malicious; or 3) the inmate filed an affidavit or unsworn declaration required by this chapter that the inmate knew was false. Tex. Civ. Prac. Rem. Code Ann. § 14.003.
In evaluating whether a claim should be dismissed as frivolous, section 14.003(b)(4) permits the court to consider whether the present claim is substantially similar to a previous claim filed by the inmate because it arises out of the same operative facts. See Tex. Civ. Prac. Rem. Code Ann. § 14.003(b)(4). When an inmate files suit under Chapter 14, he is required to file a separate affidavit identifying each previous suit and describing the "operative facts" for which relief was sought, the case name, number and court, the identity of each party named in the suit, and the result of the suit. Tex. Civ. Prac. Rem. Code Ann. § 14.004(a). Subsection (c) of section 14.004 requires the affidavit to be accompanied by a certified copy of the inmate's trust account statement required by section 14.006(f). Tex. Civ. Prac. Rem. Code Ann. § 14.004(c). When an inmate does not comply with the affidavit requirements of section 14.004, the trial court is entitled to assume the suit is substantially similar to one previously filed by the inmate, and therefore, frivolous. Walker, 35 S.W.3d at 161; see also Bell v. Texas Dep't of Criminal Justice-Institutional Div., 962 S.W.2d 156, 158 (Tex. App.-Houston [14th Dist.] 1998, pet. denied).
Here, the trial court found that Hollis failed to attach the certified copy of his trust account statement as required by section 14.004(c). Based on his failure to comply with the affidavit requirements of section 14.004, the trial court was entitled to assume Hollis's current complaint is substantially similar to a previous suit and to dismiss it as frivolous under section 14.003(b)(4). See Walker, 35 S.W.3d at 161. Therefore, because the trial court did not abuse its discretion in dismissing Hollis's claim, we overrule Hollis' first issue.
In his second issue, Hollis contends the trial court improperly dismissed his suit with prejudice. We agree. Dismissal of a suit for failure to comply with the requirements of section 14.004 is not an adjudication on the merits; therefore, a dismissal "with prejudice" is not appropriate. Denton v. Hernandez, 504 U.S. 25 (1992); see Hickman v. Adams, 35 S.W.3d 120, 124 (Tex. App.-Houston [14th Dist.] 2000, no pet.). Because the trial court abused its discretion in dismissing the case "with prejudice," we sustain Hollis' second issue and order the judgment modified to reflect a dismissal without prejudice.
In his third issue, Hollis contends the trial court erred in assessing court costs against him. Section 14.006(a) permits a trial court to order an inmate to pay court fees, court costs, and other costs associated with a claim. Tex. Civ. Prac. Rem. Code Ann. § 14.006(a). Having determined that Hollis' claim was frivolous, the record indicates that the trial court properly assessed costs in the amount of $160.00 under section 14.006. See id. Accordingly, we overrule Hollis' third issue.
We modify the judgment of the trial court to reflect dismissal of Hollis' claims without prejudice. As modified, we affirm the judgment.