                                  NO. 07-04-0260-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL C

                                 SEPTEMBER 2, 2004

                         ______________________________


                     ELLERY CORNELIUS OLIVER, APPELLANT

                                           V.

                             ZONIA A. SCOTT, APPELLEE


                       _________________________________

          FROM THE COUNTY COURT AT LAW NO. 2 OF POTTER COUNTY;

               NO. 91,428; HONORABLE PAMELA C. SIRMON, JUDGE

                         _______________________________

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


                               MEMORANDUM OPINION


      Pending before this Court is appellant Ellery Cornelius Oliver’s motion by which he

requests we dismiss this appeal.1 Oliver, an inmate proceeding pro se and informa



      1
       Oliver requests that his case be exchanged and transferred for refiling pursuant to
Rule 330(e) of the Rules of Civil Procedure. Rule 330(e), however, does not apply.
pauperis, originally filed suit against appellee Zonia A. Scott in justice court where his claim

was dismissed pursuant to chapter 14 of the Texas Civil Practice and Remedies Code.

After his appeal to the County Court At Law No. 2 was dismissed for lack of prosecution,

he appealed to this Court.


       In his motion, Oliver indicates a desire to re-file his claim. Thus, because the

dismissal of his claim in county court was not a ruling on the merits, we dismiss this appeal

without prejudice. Cf. Hughes v. Massey, 65 S.W.3d 743, 746 (Tex.App.–Beaumont 2001,

no pet.) (holding that it was error to dismiss with prejudice an inmate’s suit for failure to

comply with the rules governing the filing of in forma pauperis suits).


       Without passing on the merits of this appeal, pursuant to Rule 42.1(a)(1) of the

Texas Rules of Appellate Procedure, we grant the motion and dismiss the appeal without

prejudice. Having dismissed the appeal at Oliver’s request no motion for rehearing will be

entertained and our mandate will issue forthwith.



                                            Don H. Reavis
                                              Justice




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