Opinion issued October 15, 2015.




                                     In The

                             Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                             NO. 01-15-00036-CV
                           ———————————
                          RUSSELL HAM, Appellant
                                       V.
                 WILLIAM STEPHENS, OLIVER J. BELL,
                    & ROBIN SULLIVAN, Appellees


                   On Appeal from the 411th District Court
                             Polk County, Texas
                       Trial Court Case No. CIV28800


                         MEMORANDUM OPINION

      Russell Ham, an inmate at a Texas correctional facility, appeals the trial

court’s dismissal of his lawsuit “as frivolous” under Chapter 14 of the Civil

Practice and Remedies Code. In his sole issue, Ham argues that the trial court

should have allowed him thirty days to amend his pleadings. We affirm.
                                   Background

        Russell Ham alleges that during a “shakedown”—a search for contraband

during which each inmate must bring all of his possessions to a room for

inspection—correctional officer R. Sullivan illegally confiscated some of his

property: namely, a Bible, three Dungeons and Dragons books, twenty-six other

books, some photo albums, and legal papers that included Ham’s grandmother’s

will.

        Ham complied with the administrative procedures to complain about a

correctional officer’s conduct but could only prove ownership of four books. The

Texas Department of Criminal Justice found no evidence that Sullivan violated

department policies or engaged in misconduct but did replace the four books.

        Ham filed this lawsuit alleging causes of action for theft of property and

conversion. Because he is an indigent inmate, he brought the suit under Chapter 14

of the Civil Practice and Remedies Code, which provides for inmate litigation “in

which an affidavit or unsworn declaration of inability to pay costs is filed by the

inmate.” TEX. CIV. PRAC. & REM. CODE ANN. § 14.002 (West 2002). This Chapter

also provides for summary dismissal of frivolous suits. Id. §14.003 (West 2002).

        Sullivan filed a motion to dismiss, arguing that this lawsuit is frivolous

because (1) Sullivan is entitled to immunity and (2) Ham cannot prove he owned

the property Sullivan allegedly stole from him. Two days later, without any notice


                                         2
that the trial court would consider the matter, the trial court entered a final

judgment that dismissed Ham’s lawsuit “as frivolous.”

      Twelve days after the final judgment, Ham moved for leave to file amended

pleadings to “add claims [for violations] of Due Process of Law (Procedural),

Religious Land Use and [Institutionalized Persons] Act of 2000, and . . . [the] right

to worship.” In that amended petition, Ham references the motion to dismiss but

does not address the arguments in the motion. The trial court did not expressly rule

on the motion. Ham appeals the trial court’s order dismissing his lawsuit.

                  Right to Notice and to Amend the Pleadings

      Ham raises a single issue on appeal, arguing that the trial court abused its

discretion by dismissing his case without “allowing him 30 days to cure the defects

of his pleadings” under the election-of-remedies provision of the Texas Tort

Claims Act. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(f) (West 2011).

      Sullivan responds that the trial court “did not abuse its discretion in

dismissing Appellant’s suit because section 101.106(f) was not the sole reason for

dismissal.”

A.    The trial court dismissed Ham’s lawsuit under Chapter 14

      Because Ham filed this lawsuit as an indigent inmate, this lawsuit is

governed by Chapter 14 of the Civil Practice and Remedies Code. Chapter 14

provides:


                                         3
      (a) A court may dismiss a claim, either before or after service of
      process, if the court finds that:
             ...
             (2) the claim is frivolous or malicious . . . .
      (b) In determining whether a claim is frivolous or malicious, the court
      may consider whether:
             (1) the claim’s realistic chance of ultimate success is slight;
             (2) the claim has no arguable basis in law or in fact;
             (3) it is clear that the party cannot prove facts in support of the
             claim; or
             (4) the claim is substantially similar to a previous claim filed by
             the inmate because the claim arises from the same operative
             facts.

TEX. CIV. PRAC. & REM. CODE ANN. § 14.003.

      Sullivan argued that dismissal was appropriate because Ham could not

support the causes of action he raised in his pleadings: she argued Ham “provided

no proof of ownership for any of the . . . items [he] claims were improperly

confiscated,” “failed to demonstrate a possessory right to the allegedly converted

property,” and “was not authorized to have the items.” Based on these arguments,

the trial court dismissed Ham’s lawsuit as frivolous under Chapter 14, not under

Section 101.106 of the Civil Practices and Remedies Code as Ham argues.1 Ham

does not challenge the merits of this ruling. Rather, he argues that the trial court

committed a procedural error by not granting him 30 days to amend his pleadings.




1
      Sullivan argued in the alternative that dismissal was proper under the Texas Tort
      Claims Act election-of-remedies provision but that is not the basis relied on by the
      trial court to dismiss Ham’s lawsuit.
                                           4
We construe his argument to be that he was entitled to notice and a 30-day

opportunity to respond before the trial court ruled. We reject this contention.

B.    Standard of review

      The court of appeals reviews a Chapter 14 dismissal for an abuse of

discretion. Hamilton v. Pechacek, 319 S.W.3d 801, 809 (Tex. App.—Fort Worth

2010, no pet.). The trial court may dismiss an inmate’s claim under Chapter 14 if it

finds the claim to be frivolous or malicious. TEX. CIV. PRAC. & REM. CODE ANN.

§ 14.003(a)(2) (West 2002); Comeaux v. Tex. Dep’t of Criminal Justice, 193

S.W.3d 83, 86 (Tex. App.—Houston [1st Dist.] 2006, pet. denied). A claim is

frivolous if it has no basis in law or fact. Comeaux, 193 S.W.3d at 86.

C.    The trial court did not abuse its discretion

      “The legislature enacted chapter 14 . . . to control the flood of frivolous

lawsuits being filed in Texas courts by prison inmates because these suits consume

many valuable judicial resources with little offsetting benefits.” Hamilton, 319

S.W.3d at 809. A trial court may dismiss a lawsuit without notice to the inmate

under Chapter 14. TEX. CIV. PRAC. & REM. CODE ANN. § 14.003(a) (“court may

dismiss a claim . . . before . . . service of process”); Hamilton v. Williams, 298

S.W.3d 334, 340 (Tex. App.—Fort Worth 2009, pet. denied) (“an inmate who

brings a claim falling within the scope of chapter fourteen has no right to notice of

a motion to dismiss, nor to a mandatory hearing”); Hughes v. Massey, 65 S.W.3d


                                          5
743, 745 (Tex. App.—Beaumont 2001, no pet.) (“the inmate had no right to notice

of a motion to dismiss or to an opportunity to amend”); see Bohannan v. Tex. Bd.

of Criminal Justice, 942 S.W.2d 113, 116 (Tex. App.—Austin 1997, writ denied)

(holding similar language in Chapter 13 of Civil Practice and Remedies Code

provides indigent plaintiffs “no right to notice of a motion to dismiss or to an

opportunity to amend”); Kendrick v. Lynaugh, 804 S.W.2d 153, 156 (Tex. App.—

Houston [14th Dist.] 1990, no writ) (same). Thus, Ham was not entitled to notice

before dismissal, and the trial court did not abuse its discretion by dismissing the

lawsuit.

      In its order dismissing Ham’s lawsuit, the trial court does not express

whether it dismissed the lawsuit with or without prejudice. Although we cannot

locate any authority discussing whether dismissal under Chapter 14 is with

prejudice in a dismissal order that is silent on the issue, the default rule under Rule

of Civil Procedure 165a assumes that a case is dismissed without prejudice if the

order does not explicitly state that dismissal is with prejudice. See Graves v.

Atkins, No. 01-04-00423-CV, 2006 WL 3751612, at *1, n.1 (Tex. App.—Houston

[1st Dist.] Dec. 21, 2006, no pet.) (mem. op.) (“Though not stated expressly in the

trial court’s order, we presume that the order of dismissal was without prejudice”);

Greenwood v. Tillamook Country Smoker, Inc., 857 S.W.2d 654, 656 (Tex. App.—

Houston [1st Dist.] 1993, no pet.) (“Because the order does not state the case is


                                          6
dismissed with prejudice, it is presumed the dismissal is without prejudice . . . .”);

Coleman v. Hughes Blanton, Inc., 599 S.W.2d 643, 645 (Tex. App.—Texarkana

1980, no writ) (same). We see no reason that this default rule would not apply

equally here. Thus, to the extent Ham complains that he was not given an

opportunity to replead, we note that his dismissal is without prejudice.

                                    Conclusion

      We affirm the judgment of the trial court. All pending motions are dismissed

as moot.




                                              Harvey Brown
                                              Justice

Panel consists of Justices Jennings, Higley, and Brown.




                                          7
