                                    NO. 07-03-0220-CV

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL D

                                 DECEMBER 18, 2003
                           ______________________________

                                      DAN THOMAS,

                                                         Appellant

                                              v.

                         TEXAS DEPT. OF CRIMINAL JUSTICE-
                           INST. DIV. & RICHARD MCKEE,

                                                Appellees
                        _________________________________

               FROM THE 258TH DISTRICT COURT OF POLK COUNTY;

              NO. CIV20,089; HON. ELIZABETH E. COKER, PRESIDING
                       _______________________________

                                 Memorandum Opinion
                           _______________________________

Before QUINN, REAVIS, and CAMPBELL, JJ.

       Appellant Dan Thomas (Thomas), an inmate with the Texas Department of Criminal

Justice (TDCJ) appeals from an order dismissing, without prejudice, his suit against the

TDCJ and Richard McKee (McKee). Through two issues, he contends that the trial court

erred in dismissing his suit 1) prior to service and 2) because it had arguable basis in fact.

We affirm the dismissal.
                                           Applicable Law

        The trial court dismissed the suit in accordance with §14.003(b)(4) of the Texas Civil

Practice and Remedies Code. The provision states that a trial court may consider whether

a claim is substantially similar to a prior claim in determining whether it is frivolous. TEX .

CIV . PRAC . & REM . CODE ANN . §14.003(b)(4) (Vernon 2002). Statute further provides that

if the claim is held to be frivolous, it may be dismissed either before or after service of

process upon the defendant. Id. at §14.003(a)(2). Next, should the plaintiff fail to comply

with §14.004 of the same Code, the trial court may then assume that the action is similar

to another previously filed and, therefore, frivolous.1 Thomas v. Knight, 52 S.W.3d 292,

295 (Tex. App.–Corpus Christi 2001, pet. denied); Samuels v. Strain, 11 S.W.3d 404, 406-

07 (Tex. App.–Houston [1st Dist.] 2000, no pet.). Finally, the provisions of §14.001 et seq.,

apply when an inmate sues as a pauper. TEX . CIV . PRAC . & REM . CODE §14.002(2).

                                        Application of Law

        Issue One – Dismissal Before Service

        Thomas initially complains of the trial court dismissing the cause before the TDCJ

and McKee were served. We overrule the point.

        It is clear that Thomas was an inmate when the suit was initiated. Similarly clear

is that he sought to prosecute the matter as a pauper. Consequently, the provisions of

§14.001 et seq., of the Civil Practice and Remedies Code apply to him.


        1
         Section 14.004 obligates an inmate to identify (by affidavit or declaration) each suit previously
brought by him and describe the operative facts, parties, cause number, court, and result. TEX. CIV. PRAC.
& REM. CODE ANN. §14.004(a)(1) & (2) (Vernon 2002).

                                                    2
         Next, and as previously stated, §14.003(a) grants the trial court authority to dismiss

a suit “either before or after service.” (Emphasis added). Given that dismissal may occur

“before” service, we reject Thomas’ contention that the trial court must have first caused

the defendants to be served before it could dismiss the action.

         Issue Two – Arguable Claim

         In his second and last issue, Thomas asserts that the trial court erred in dismissing

his suit because his claim had an arguable basis in fact and law. We again overrule the

issue.

         It is clear that the trial court dismissed the suit, without prejudice, because it

deemed the matter frivolous per §14.003(b)(4). Similarly clear is that it deemed the matter

frivolous because Thomas did not comply with §14.004 of the Civil Practice and Remedies

Code.2 That is, because he did not file an affidavit or declaration satisfying §14.004, the

trial court could have 1) reasonably assumed that the pending action was substantially

similar to a previous claim and 2) therefore dismissed the action. Given this, we conclude

that the trial court did not abuse its discretion in dismissing the cause without prejudice.

Thomas v. Knight, supra; Samuels v. Strain, supra.

         Accordingly, we affirm the order of dismissal.



                                                        Brian Quinn
                                                          Justice




         2
         Moreover, Thomas does not assert here that such an affidavit or declaration was filed. Nor do we
find one in the appellate record.

                                                   3
