
   NO. 12-03-00422-CV


IN THE COURT OF APPEALS


TWELFTH COURT OF APPEALS DISTRICT


TYLER, TEXAS

ROBERT KING CONWAY, JR.,§
		APPEAL FROM THE 369TH
APPELLANT

V.§
		JUDICIAL DISTRICT COURT OF

RICHARD THOMPSON, ET AL,
APPELLEES§
		ANDERSON COUNTY, TEXAS
 
MEMORANDUM OPINION

	Robert King Conway, Jr. ("Conway"), an inmate in the Texas Department of Criminal
Justice-Institutional Division ("TDCJ"), proceeding pro se, filed an in forma pauperis suit against
Richard Thompson, III ("Thompson"), Leslie Hazelwood ("Hazelwood"), and Martina Cordell
("Cordell").  Conway appeals the trial court's order dismissing his suit pursuant to Texas Civil
Practice and Remedies Code, section 14.003.  Conway raises two issues on appeal.  We modify and,
as modified, affirm.

Background
	Conway is an inmate serving a life sentence for a capital murder conviction.  While
incarcerated, Conway filed a civil suit against Thompson, a TDCJ assistant warden, and TDCJ
correctional officers, Hazelwood and Cordell (collectively "Appellees").  In his lawsuit, Conway
alleges that by breaking his word processor and confiscating his cowboy boots during a search of his
cell, Appellees are liable for depriving Conway of his property without a fair hearing in
contravention of his rights under the Fourteenth Amendment of the United States Constitution.  In
conjunction with his original petition, Conway also filed a declaration of previous lawsuits, in which
he designated two previously-filed actions and one pending action.  Along with each designation,
Conway set forth generally the legal theories raised in each suit, but did not describe in detail the
facts giving rise to each of the suits.
	On November 10, 2003, without conducting a hearing, the trial court found that Conway's
suit was frivolous or malicious and dismissed it with prejudice pursuant to Texas Civil Practice and
Remedies Code, section 14.003.  This appeal followed.

Dismissal Pursuant to Texas Civil
Practice and Remedies Code Chapter 14

	In his first issue, Conway argues that the trial court's dismissal was improper. We review the
trial court's dismissal of an in forma pauperis suit under an abuse of discretion standard.  Hickson
v. Moya, 926 S.W.2d 397, 398 (Tex. App.-Waco 1996, no writ).  A trial court abuses its discretion
if it acts arbitrarily, capriciously and without reference to any guiding rules or principles.  Lentworth
v. Trahan, 981 S.W.2d 720, 722 (Tex. App.-Houston [1st Dist.] 1998, no pet.).  We will affirm a
dismissal if it was proper under any legal theory.  Johnson v. Lynaugh, 796 S.W.2d 705, 706-07
(Tex. 1990); Birdo v. Ament, 814 S.W.2d 808, 810 (Tex. App.-Waco 1991, writ denied).  The trial
courts are given broad discretion to determine whether a case should be dismissed because:  (1)
prisoners have a strong incentive to litigate; (2) the government bears the cost of an in forma
pauperis suit; (3) sanctions are not effective; and (4) the dismissal of unmeritorious claims accrues
to the benefit of state officials, courts, and meritorious claimants.  See Montana v. Patterson, 894
S.W.2d 812, 814-15 (Tex. App.-Tyler 1994, no writ).
	Chapter 14 of the Texas Civil Practice and Remedies Code controls suits brought by an
inmate in which the inmate has filed an affidavit or unsworn declaration of inability to pay costs. (1)
Tex. Civ. Prac. & Rem. Code Ann. § 14.002(a) (Vernon 2002); Hickson, 926 S.W.2d at 398.
Section 14.003 provides that a trial court may dismiss a claim before or after service of process if
the court finds that the claim is frivolous or malicious.  See Tex. Civ. Prac. & Rem. Code Ann.
§ 14.003(a)(2) (Vernon 2002).  In determining whether a claim is frivolous or malicious, a trial court
may consider whether the claim is substantially similar to a previous claim filed by the inmate
because the claim arises out of the "same operative facts."  Id. at § 14.003(b)(4).  To enable a trial
court to determine whether the suit is substantially similar to a previous one, an inmate is required
to file a separate affidavit or unsworn declaration describing all other suits the inmate has brought
and stating the "operative facts" upon which relief was sought.  Id. at § 14.004(a)(2)(A).
	In the case at hand, the record contains no affidavits or unsworn declarations in compliance
with Texas Civil Practice and Remedies Code, section 14.004.  Conway filed a declaration listing
previous lawsuits filed, but failed to sufficiently set forth in detail the "operative facts" upon which
relief was sought in each suit.  Rather, Conway did little more than address what legal theories were
raised in his previous suits.  Without a more detailed description of the operative facts surrounding
Conway's previous lawsuits, the trial court was unable to consider whether Conway's current claim
was substantially similar to his previous claims.  See Bell v. Texas Dep't of Criminal Justice--Inst.
Div., 962 S.W.2d 156, 158 (Tex. App.-Houston [14th Dist.] 1998, pet. denied).
	The Beaumont Court of Appeals addressed this very issue in White v. State, 37 S.W.3d 562
(Tex. App.-Beaumont 2001, no writ).  In White, the court held that "White's description of the
'operative facts' in each prior suit is, in effect, a designation of a legal theory, not a statement of the
'operative facts' of the case."  Id. at 564.  The court continued, "[B]ased on the listing [White] has
submitted, it is impossible for the trial court to determine for example, whether the five suits labeled
as 'due process violations' are duplicative of the present case."  Here, as in White, Conway's
classification of his three previous suits as a "§ 1983 action," a "28 USCA § 2254 action," or  a
"§ 1983 and tort claim" respectively, do little to enable the trial court to determine, in each case, if
his present action is substantially similar to his previous lawsuits. (2)
	When an inmate files an affidavit or declaration which fails to comply with the requirements
of section 14.004, "the trial court is entitled to assume that the suit is substantially similar to one
previously filed by the inmate, and therefore, frivolous."  Bell, 962 S.W.2d at 158.  Accordingly, we
hold that the trial court did not abuse its discretion when it dismissed Conway's suit.  Id.  Conway's
first issue is overruled.

Dismissal With Prejudice
	In his second issue, Conway contends that it was improper for the trial court to dismiss his
action with prejudice.  A dismissal with prejudice constitutes an adjudication on the merits and
operates as if the case had been fully tried and decided.  See Ritchey v. Vasquez, 986 S.W.2d 611,
612 (Tex. 1999).  Thus, orders dismissing cases with prejudice have full res judicata and collateral
estoppel effect, barring subsequent relitigation of the same causes of action or issues between the
same parties.  See Barr v. Resolution Trust Corp., 837 S.W.2d 627, 630-31 (Tex. 1992).  On the
other hand, a dismissal for failure to comply with the conditions in section 14.004 is not a dismissal
on the merits, but rather an exercise of the trial court's discretion under chapter 14 of the Civil
Practice and Remedies Code.  See Thomas v. Knight, 52 S.W.3d 292, 295 (Tex. App.-Corpus
Christi 2001, no pet.); Hickman v. Adams, 35 S.W.3d 120, 124 (Tex. App.-Houston [14th Dist.]
2000, no pet.).  Further, a dismissal with prejudice is improper if the plaintiff's failure can be
remedied.  See Hickman, 35 S.W.3d at 125.  
	The Corpus Christi Court of Appeals addressed this issue in Thomas v. Skinner, 54 S.W.3d
845 (Tex. App.-Corpus Christi 2001, pet. denied).  Thomas's lawsuit was dismissed pursuant to
chapter 14 because Thomas failed to include an affidavit or declaration describing each suit that he
had previously filed.  Id. at 846.  Holding that the dismissal with prejudice was improper, the court
stated: 

 When an appellate court reviews whether a trial court abused its discretion in dismissing an inmate's suit, it
should consider whether the suit was dismissed with prejudice and if so, determine whether the inmate's error
could be remedied through more specific pleading. (citation omitted). In the present case, we find that Thomas's
failure to comply with chapter 14 could have been remedied through amendment. Therefore, we sustain
Thomas's first issue. 


Id. at 847.  In the case at hand, Conway's error, like Thomas's, could have been remedied through
more specific pleading.  Therefore, we hold that the trial court's dismissal with prejudice was
improper.  Conway's second issue is sustained.

Conclusion
	Having sustained Conway's second issue and having overruled his first issue, we modify the
trial court's order of dismissal by deleting the words "with prejudice" and substituting in their place
the words "without prejudice."   As modified, we affirm the trial court's dismissal order and overrule
all pending motions in this court.


   DIANE DEVASTO  
									     Justice



Opinion delivered March 24, 2004.
Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.























(PUBLISH)

1.  Chapter 14 does not apply to suits brought under the Family Code.  Tex. Civ. Prac. & Rem. Code Ann.
§ 14.002(b) (Vernon 2002).
2.  The only supporting facts offered by Conway in support of his declarations are the following general
assertions:  (1) In support of his "§ 1983 claim," Conway declared, "The Plaintiff was assaulted by known gang
members while eating";  (2) In support of his 28 USCA § 2254 action," Conway stated, "The Petitioner received a
disciplinary case and appealed to the court for Judicial Review"; and (3) In support of his "§ 1983 and tort claim,"
Conway declared, "Plaintiff's property was taken and wrongfully disposed of against TDCJ-ID policy and without a
due process hearing."

