                                  NO. 07-04-0452-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                       PANEL B

                                JANUARY 13, 2005
                         ______________________________

                               DONALD RAY McCRAY,

                                                             Appellant

                                           v.

                     JEFFERSON COUNTY and PAULA S. FOY,

                                                     Appellees
                       _________________________________

             FROM THE 320TH DISTRICT COURT OF POTTER COUNTY;

               NO. 91,967-D; HON. RICHARD DAMBOLD, PRESIDING
                       _______________________________

                              Memorandum Opinion
                        _______________________________

Before JOHNSON, C.J. and QUINN and CAMPBELL, JJ.

      Donald Ray McCray (McCray) appeals from two orders dismissing his suit against

Jefferson County and Paula S. Foy as frivolous. When McCray filed suit against those two

defendants, he did so as a pauper and an inmate with the Texas Department of Criminal

Justice. Furthermore, the orders dismissing the cause were entered after Jefferson County

moved for dismissal. We affirm the judgment of the trial court.
       The allegations in McCray’s appellate brief are quite difficult to understand.

Nevertheless, we read them as his attempt to complain about the trial court’s dismissal of

his suit. Furthermore, he apparently believes the trial court acted improperly because it did

not accord him a hearing, opportunity to present evidence establishing that his claims had

merit, or opportunity to respond to the motion to dismiss.

       As to the allegation that McCray was entitled to a hearing, statute provides that the

trial court may convene such a proceeding to determine whether a claim is frivolous. TEX .

CIV . PRAC . & REM . CODE ANN . §14.003(c) (Vernon 2002). However, whether to do so is

within the discretion of the court, Thomas v. Wichita General Hospital, 952 S.W.2d 936, 938

(Tex. App.–Fort Worth 1997, pet. denied), which means that it need not do so. Thomas v.

Bilby, 40 S.W.3d 166, 168 (Tex. App.–Texarkana 2001, no pet.). Additionally, the record

does not indicate that the trial court concluded that the claim was frivolous because it

lacked any basis in fact. This is of import since a trial court is limited to deciding whether

the claim lacks basis in law, as opposed to fact, when it opts not to conduct an evidentiary

hearing. Smith v. TDCJ, 33 S.W.3d 338, 340 (Tex. App.–Texarkana 2000, pet. denied);

Gordon v. Scott, 6 S.W.3d 365, 369 (Tex. App.–Beaumont 1999, pet. denied). So, the trial

court’s decision to forego a hearing did not constitute error.

       As to the allegations about being denied opportunity to present evidence

substantiating his claim or to respond to the motion, statute also provides that the suit may

be dismissed before or after service of process upon the defendant. TEX . CIV . PRAC . &

REM . CODE ANN . §14.003(a) (Vernon 2002); Hughes v. Massey, 65 S.W.3d 743, 745 (Tex.

App.–Beaumont 2001, no pet.). Furthermore, an inmate has no right to notice of a motion

to dismiss filed under §14.003. Hughes v. Massey, 65 S.W.3d at 745; Bohannan v. Texas

                                              2
Bd. of Crim. Justice, 942 S.W.2d 113, 116 (Tex. App.–Austin 1997, writ denied). So, if an

inmate is not entitled to notice of the motion and if the suit may be dismissed either before

or after service of process on the defendant, then it logically follows that he has no right to

respond to the motion via writing or the presentation of evidence. Additionally, McCray

does not argue in his brief that the trial court substantively erred when it held his claims

frivolous, as a matter of law. Given this, we have no ground upon which to infer that

McCray possessed relevant information to bring to the trial court’s attention had a hearing

or opportunity to respond been afforded him. Thus, the record again precludes us from

holding that the trial court erred in dismissing the claim.

       In sum, each complaint of McCray asserted at bar is overruled, and the judgment

is affirmed.



                                                   Brian Quinn
                                                     Justice




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