                                  IN THE
                          TENTH COURT OF APPEALS

                                  No. 10-09-00393-CV

DONALD FOSTER,
                                                              Appellant
v.

RICK THALER,
                                                              Appellee



                           From the 278th District Court
                              Walker County, Texas
                              Trial Court No. 24,769


                           MEMORANDUM OPINION


       Donald Foster appeals the dismissal of his lawsuit as frivolous under Chapter 14

of the Civil Practice and Remedies Code. He contends in two issues that the court erred

because: (1) his pending recusal motion should have first been addressed; and (2) his

lawsuit is not frivolous. We will affirm.

       Rule of Civil Procedure 18a(b) states in pertinent part, “On the day the motion

[to recuse] is filed, copies shall be served on all other parties or their counsel of record,

together with a notice that movant expects the motion to be presented to the judge three
days after the filing of such motion unless otherwise ordered by the judge.” TEX. R. CIV.

P. 18a(b). If a party fails to provide this notice, he waives the right to complain of a

judge’s failure to recuse himself. Carson v. Serrano, 96 S.W.3d 697, 698 (Tex. App.—

Texarkana 2003, pet. denied). Because Foster failed to provide this notice, he waived

the right to complain of the judge’s failure to recuse himself. Id. Thus, we overrule his

first issue.

          Chapter 14 of the Civil Practice and Remedies Code applies to suits filed by an

inmate and accompanied by an affidavit or unsworn declaration of inability to pay

costs.1    TEX. CIV. PRAC. & REM. CODE ANN. § 14.002(a) (Vernon 2002); Hamilton v.

Williams, 298 S.W.3d 334, 339 (Tex. App.—Fort Worth 2009, pet. denied). The trial court

may dismiss such a suit if the inmate fails to comply with the requirements of Chapter

14. See Hamilton, 298 S.W.3d at 339.

          Section 14.004 requires the inmate to file an affidavit or unsworn declaration

listing each suit (other than suits under the Family Code) the inmate previously filed.

TEX. CIV. PRAC. & REM. CODE ANN. § 14.004 (Vernon 2002). Because Foster did not

comply with section 14.004, the court did not abuse its discretion by dismissing his suit.

See Hamilton, 298 S.W.3d at 339. Thus, we overrule his second issue.

          We affirm the judgment.



                                                            FELIPE REYNA
                                                            Justice

1
       Chapter 14 does not apply to suits filed under the Family Code. TEX. CIV. PRAC. & REM. CODE
ANN. § 14.002(b) (Vernon 2002).


Foster v. Thaler                                                                           Page 2
Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Affirmed
Opinion delivered and filed October 13, 2010
[CV06]




Foster v. Thaler                               Page 3
