                              NO. 12-08-00345-CV

                       IN THE COURT OF APPEALS

          TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS
DASHUN HATCHER,                               '              APPEAL FROM THE 87TH
APPELLANT

V.
                                              '              JUDICIAL DISTRICT COURT OF
TEXAS DEPARTMENT OF
CRIMINAL JUSTICE –
INSTITUTIONAL DIVISION,
APPELLEE                                     '               ANDERSON COUNTY, TEXAS
                                  MEMORANDUM OPINION
       DaShun Hatcher appeals the trial court’s order dismissing his civil suit against the Texas
Department of Criminal Justice – Institutional Division (TDCJ-ID) pursuant to Chapter Fourteen
of the Texas Civil Practice and Remedies Code. We reverse and remand to the trial court for
further proceedings.

                                          BACKGROUND
       Hatcher is an inmate in TDCJ-ID. While incarcerated, Hatcher filed an in forma pauperis
civil suit against TDCJ-ID seeking judicial review of an adverse agency decision. He alleged
that his constitutional rights to due process and due course of law were violated when he was
wrongfully found guilty of participating in a riot. The petition was supported by an affidavit of
previous filings filed the same day as the petition. Hatcher filed another affidavit of previous
filings a few weeks later. Soon thereafter, the trial court dismissed the suit without prejudice
pursuant to Section 14.004(a)(2) of the Texas Civil Practice and Remedies Code on the basis that
Hatcher’s affidavit identifying previous filings did not describe the suits by stating the operative
facts for which relief was sought. Hatcher then filed a motion for reinstatement supported by a
third affidavit of previous filings. The trial court denied the motion for reinstatement. This
appeal followed.


                                AFFIDAVIT OF PREVIOUS FILINGS
       In his sole issue, Hatcher contends the trial court abused its discretion by dismissing his
suit under Section 14.004(a)(2). He argues that he included all necessary information in his three
affidavits, thus adequately notifying the trial court of previously filed suits.          From that
information, he contends the trial court should have been able to determine that this suit is not
frivolous or merely duplicative of previously filed suits.
Standard of Review
       We review the trial court’s dismissal of an in forma pauperis suit under an abuse of
discretion standard. Hickson v. Moya, 926 S.W.2d 397, 398 (Tex. App.–Waco 1996, no writ).
A trial court abuses its discretion if it acts arbitrarily, capriciously, and without reference to any
guiding rules or principles. Lentworth v. Trahan, 981 S.W.2d 720, 722 (Tex. App.–Houston
[1st Dist.] 1998, no pet.). The trial courts are given broad discretion to determine whether a case
should be dismissed because 1) prisoners have a strong incentive to litigate; 2) the government
bears the cost of an in forma pauperis suit; 3) sanctions are not effective; and 4) the dismissal of
unmeritorious claims accrues to the benefit of state officials, courts, and meritorious claimants.
See Montana v. Patterson, 894 S.W.2d 812, 814-15 (Tex. App.–Tyler 1994, no writ).
Chapter Fourteen
       Chapter Fourteen of the Texas Civil Practice and Remedies Code controls suits brought
by an inmate, except for suits brought under the family code, in which the inmate has filed an
affidavit or unsworn declaration of inability to pay costs. TEX. CIV. PRAC. & REM. CODE ANN.
§ 14.002 (Vernon 2002). Section 14.003 provides that a trial court may dismiss a claim before or
after service of process if the court finds that the claim is frivolous or malicious. TEX. CIV.
PRAC. & REM. CODE ANN. § 14.003(a)(2)(Vernon 2002). In determining whether a claim is
frivolous or malicious, the trial court may consider whether the claim is substantially similar to a
previous claim filed by the inmate because the claim arises out of the same operative facts. Id.
§ 14.003(b)(4).
       To enable the trial court to determine whether the suit is substantially similar to a
previous one, an inmate is required to file an affidavit or declaration identifying each suit, other

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than a suit under the family code, previously brought by the person and in which the person was
not represented by an attorney; describing each suit the inmate previously brought by stating the
operative facts for which relief was sought; listing the case name, cause number, and the court in
which the suit was brought; identifying each party named in the suit; and stating the result of the
suit. TEX. CIV. PRAC. & REM. CODE ANN. § 14.004(a) (Vernon 2002). The declaration must be
in writing and subscribed by the person making the declaration as true under penalty of perjury.
TEX. CIV. PRAC. & REM. CODE ANN. § 132.002 (Vernon 2005).


                                            DISCUSSION
       In his affidavits, Hatcher identified two previous lawsuits, stating the operative facts for
which relief was sought, listing the case names, cause numbers, and the courts in which the suits
were brought, identifying each party named in the suits, and stating the result of each suit. Each
affidavit was in writing and subscribed by Hatcher as true under penalty of perjury. One of the
previously filed lawsuits named was actually Hatcher’s first attempt to sue TDCJ-ID for its
alleged unconstitutional acts with regard to finding him guilty of participating in the riot, the
same cause presently before us. The first time Hatcher brought this suit, the trial court dismissed
it because Hatcher failed to file an affidavit of exhaustion of administrative remedies. The
dismissal was not an adjudication on the merits. The error that led to the dismissal was one that
could be remedied. See Thomas v. Skinner, 54 S.W.3d 845, 847 (Tex. App.–Corpus Christi
2001, pet. denied) (Dismissal with prejudice is inappropriate where inmate’s failure to comply
with Chapter Fourteen could have been remedied through amendment.). Hatcher filed the instant
suit in response to the first dismissal. Therefore, although this suit is duplicative, dismissal is not
warranted.
       We conclude that Hatcher complied with the statutory requirements that his affidavit
identify previously filed suits and describe the suits by stating the operative facts for which relief
was sought. Accordingly, the trial court abused its discretion in dismissing Hatcher’s suit for
failure to comply with Section 14.004(a)(2). We sustain Hatcher’s sole issue.


                                            DISPOSITION
       We reverse the trial court’s judgment and remand the cause to the trial court for further
proceedings consistent with this opinion.

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                                                                SAM GRIFFITH
                                                                   Justice



Opinion delivered January 6, 2010.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                    (PUBLISH)




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