                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                               NO. 2-07-308-CV


MICHAEL LOU GARRETT                                                  APPELLANT

                                        V.

E.C. WILLIAMS AND F.L. HAYNES                                        APPELLEES

                                    ------------

         FROM THE 30TH DISTRICT COURT OF WICHITA COUNTY

                                    ------------

                                   OPINION

                                    ------------

                                  Introduction

      Appellant Michael Lou Garrett appeals the trial court’s dismissal of his pro

se petition for writ of mandamus. Appellant argues that the trial court erred

and abused its discretion by dismissing his petition for writ of mandamus with

prejudice in accordance with Texas Civil Practice and Remedies Code chapter

14. We affirm as modified.
                                Background Facts

      On September 15, 2006, appellant, an inmate in the Allred Unit of the

Texas Department of Criminal Justice, filed a petition for writ of mandamus in

the 30th District Court of Wichita County and asked the trial court to order

appellees, Warden E.C. Williams and law library supervisor F.L. Haynes, to (1)

provide him with the identities of the mail room and law library staff, (2) return

eight pages of his drafted lawsuit which he claims were stolen, and (3) stop

obstructing his attempts to file a lawsuit against them by depriving him of

supplies such as paper and legal materials. On that same day, appellant also

filed a motion to proceed in forma pauperis, an affidavit of poverty, and a

declaration of inability to pay costs.

      On July 12, 2007, appellees filed a motion to dismiss under chapter 14

of the civil practice and remedies code on the grounds that (1) the trial court

lacked subject matter jurisdiction and (2) appellant was not entitled to

mandamus relief because appellees did not have a nondiscretionary, ministerial

duty to provide him with the names and materials he requested.1


      1
         In their brief, appellees list appellant’s history of instigating extensive
litigation in state and federal courts seeking mandamus relief for similar claims.
They state that appellant has filed at least seventeen actions in state court over
the past three years and twenty actions in federal court over the past six years.
However, appellees did not request dismissal of appellant’s petition on this
ground, nor does the record show that they brought any of those suits to the

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      On August 15, 2007, the trial court signed an order granting the motion

to dismiss with prejudice because the petition was “not in compliance with the

requirements set forth in Texas Civil Practices and Remedies Code, Chapter

14.” Appellant timely filed a notice of appeal.

              Chapter 14 of the Civil Practice and Remedies Code

      Inmate litigation (except suits brought under the family code) in which an

inmate files an affidavit or unsworn declaration of inability to pay costs is

governed by special procedural rules set out in chapter 14 of the civil practice

and remedies code. See T EX. C IV. P RAC. & R EM. C ODE A NN. §§ 14.001-14.014

(Vernon 2002); Bishop v. Lawson, 131 S.W.3d 571, 574 (Tex. App.—Fort

Worth 2004, pet. denied); Thomas v. Knight, 52 S.W.3d 292, 294 (Tex.

App.—Corpus Christi 2001, pet. denied), cert denied, 537 U.S. 890 (2002).

The legislature enacted this statute 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. Bishop, 131

S.W.3d at 574; Knight, 52 S.W.3d 294. The purpose of chapter 14 is not to

punish inmates for filing claims, but to aid the court in determining whether an




trial court’s attention.

                                       3
inmate’s claim is frivolous. Thomas v. Wichita Gen. Hosp., 952 S.W.2d 936,

941 (Tex. App.—Fort Worth 1997, pet. denied).

      Section 14.004 requires an inmate who files an affidavit or unsworn

declaration of inability to pay costs to file a separate affidavit “related to

previous filings” in which the inmate must detail all previous suits filed pro se,

other than a suit under the family code. T EX. C IV. P RAC . & R EM. C ODE A NN.

§ 14.004(a); Amir-Sharif v. Mason, No. 05-06-01089-CV, 2008 WL 171219,

at *2 (Tex. App.—Dallas Jan. 22, 2008, no pet. h.). Additionally, section

14.004 requires the inmate to file a certified copy of the inmate’s trust account

statement that “reflect[s] the balance of the account at the time the claim is

filed and activity in the account during the six months preceding the date on

which the claim is filed.” T EX. C IV . P RAC. & R EM. C ODE A NN. §§ 14.004(c),

14.006(f); Amir-Sharif, 2008 WL 171219, at *2.

      Chapter 14 applies “only to a suit brought by an inmate in district court,

justice of the peace, or small claims court in which an affidavit or unsworn

declaration of inability to pay costs is filed by the inmate.” T EX. C IV. P RAC. &

R EM. C ODE A NN. § 14.002(a); Bishop, 131 S.W.3d at 574. A trial court may

dismiss a suit filed under chapter 14 if it finds that: “(1) the allegation of

poverty in the affidavit or unsworn declaration is false; (2) the claim is frivolous;

or (3) the inmate filed an affidavit or unsworn declaration required by this

                                         4
chapter that the inmate knew was false.” T EX. C IV. P RAC. & R EM . C ODE A NN.

§ 14.003(a); Amir-Sharif, 2008 WL 171219, at *2. A trial court has broad

discretion to dismiss a lawsuit brought under chapter 14 as frivolous or

malicious. T EX. C IV. P RAC. & R EM. C ODE A NN. § 14.003(b); Knight, 52 S.W.3d

at 294. In determining whether a claim is frivolous or malicious, the trial 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 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.” T EX. C IV. P RAC. & R EM. C ODE A NN. § 14.003(b); Knight,

52 S.W.3d at 294.

                               Standard of Review

      We review a trial court’s dismissal of an inmate’s claim under chapter 14

under an abuse of discretion standard. Bishop, 131 S.W.3d at 574. A court

abuses its discretion if it acts arbitrarily, capriciously, and without reference to

guiding rules or principles. See Downer v. Aquamarine Operators, Inc., 701

S.W.2d 238, 241–42 (Tex. 1985), cert. denied, 476 U.S. 1159 (1986);

Bishop, 131 S.W.3d at 574; Martinez v. Thaler, 931 S.W.2d 45, 46 (Tex.

App.—Houston [14th Dist.] 1996, writ denied).




                                         5
                                     Analysis

      Appellant challenges the trial court’s dismissal order on the following

grounds: (1) that chapter 14 does not apply to original proceedings filed in

district courts; (2) that the trial court had jurisdiction to order mandamus relief;

thus, it could not have dismissed on that basis; (3) that appellant would prevail

on the merits of his petition for writ of mandamus; thus, the trial court could

not have properly determined that the proceeding is frivolous; and (4) that a

dismissal with prejudice was improper.

Applicability of Texas Civil Practice and Remedies Code Chapter 14

      Appellant first argues that his petition for writ of mandamus does not fall

within the scope of chapter 14 and should not have been dismissed for

noncompliance with it. Chapter 14 applies “only to a suit brought by an inmate

in a district court, justice of the peace, or small claims court in which an

affidavit or unsworn declaration of inability to pay costs is filed by the inmate.”

T EX. C IV. P RAC. & R EM. C ODE A NN. § 14.002(a) (emphasis added); Bishop, 131

S.W.3d at 574. Chapter 14 applies to all civil causes of action other than those

brought under the family code. T EX. C IV. P RAC. & R EM. C ODE A NN. § 14.002(b).

Section 14.001(1) of chapter 14 defines a claim as “a cause of action governed

by this chapter.” Id. at § 14.001(1). Thus, any claim brought by an inmate in

a suit in a district court, justice of the peace, or small claims court and

                                         6
accompanied by a declaration of inability to pay costs is governed by chapter

14. Id. at § 14.002(a); see Carson v. Serrano, 96 S.W.3d 697, 699 (Tex.

App.—Texarkana 2003, pet. denied).

      Appellant contends that an original proceeding is not a “suit” for purposes

of chapter 14. Black’s Law Dictionary defines a “suit” as “any proceeding by

a party or parties against another in a court of law.” B LACK ’S L AW D ICTIONARY

1475 (8th ed. 2004). An action for writ of mandamus initiated in the trial court

is a civil action subject to appeal as any other lawsuit. Anderson v. City of

Seven Points, 806 S.W.2d 791, 792 n.1 (Tex. 1991).             Thus, an original

proceeding is a suit for purposes of chapter 14.2

      Appellant, an inmate, brought this suit in district court, seeking to

proceed in forma pauperis. Thus, chapter 14 applies if the claims in appellant’s

suit are for civil causes of action that do not arise under the family code. T EX.

C IV. P RAC. & R EM. C ODE A NN. § 14.002(b). Here, appellant filed a petition for

writ of mandamus, asking the district court to order appellees to obtain the

names of employees working in the mail room and law library, return drafts of


      2
       Generally, we look to the substance of a cause of action, not the label
a petitioner places on his claim to determine the applicability of chapter 14.
See Carson, 96 S.W.3d at 699 (rejecting inmate’s claim that chapter 14 did not
apply to his lawsuit because it was labeled a “bill of review”). Here, the
substance of appellant’s petition is a claim for mandamus relief, so appellant
brought his proceeding under the correct label.

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his lawsuit, and provide supplies and legal materials that he was entitled to

receive to prepare his civil lawsuit. These claims are civil in nature and do not

arise under the family code.     Thus, we conclude and hold that appellant’s

petition for writ of mandamus is subject to the requirements of chapter 14. See

Jaxson v. Morgan, No. 14-04-00785-CV, 2006 WL 914199, at *1 (Tex.

App.—Houston [14th Dist.] Apr. 6, 2006, no. pet.) (mem. op.); see also

Carson, 96 S.W.3d at 699. We overrule appellant’s first issue.

Subject Matter Jurisdiction

       In his second and third issues, appellant argues that because appellees

had a nondiscretionary, ministerial duty to provide him with the names and

materials he requested, the trial court had jurisdiction to order mandamus relief

and that his petition was not frivolous.      We will address the trial court’s

jurisdiction first.

       A district court has mandamus jurisdiction only to enforce its own

jurisdiction. T EX. C ONST. art. V, § 8; T EX. G OV’T C ODE A NN. § 24.011 (Vernon

2004); Martinez, 931 S.W.2d at 46. A district court has no constitutional or

statutory jurisdiction to exercise supervisory control over prison officials absent

an attempt by such officials to interfere with the district court’s already pending

jurisdiction. Martinez, 931 S.W.2d at 46.




                                        8
      Here, the purpose of appellant’s petition for writ of mandamus in the trial

court was not to protect the trial court’s jurisdiction, but to instigate litigation

against appellees. See Winfrey v. Chandler, 159 Tex. 220, 318 S.W.2d 59, 61

(Tex. 1958) (holding a district court must have actual jurisdiction of a matter

if it seeks to enforce its jurisdiction by its writ power); Martinez, 931 S.W.2d

at 46. Therefore, the trial court did not have subject matter jurisdiction to order

the relief requested in appellant’s petition for writ of mandamus. See T EX.

G OV’T C ODE A NN. § 24.011; Winfrey, 318 S.W.2d at 61; Martinez, 931 S.W.2d

at 46. Thus, the trial court lacked subject matter jurisdiction to order the relief

sought, and the trial court appropriately dismissed appellant’s petition for writ

of mandamus. See T EX. C IV. P RAC. & R EM. C ODE A NN. § 14.003(b).

      Moreover, even if the trial court had subject matter jurisdiction,

appellant’s petition for writ of mandamus was frivolous.            In determining

whether a claim is frivolous, a 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.; Williams v. Tex. Dep’t of Criminal

Justice-Inst. Div., 176 S.W.3d 590, 593 (Tex. App.—Tyler 2005, pet. denied).

To enable a trial court to determine whether the suit is substantially similar to

a previous one, an inmate is required to file a separate affidavit or unsworn

declaration describing all other suits the inmate has brought and stating the

                                         9
“operative facts” upon which relief was sought. T EX. C IV. P RAC. & R EM. C ODE

A NN. § 14.003(b)(4); Williams, 176 S.W.3d at 593. The affidavit must also

disclose whether the prior suits were dismissed as frivolous or malicious and

provide the dates of the final orders affirming the dismissals. T EX. C IV. P RAC.

& R EM. C ODE A NN. §§ 14.004(a)(2)(D), 14.004(b); Williams, 176 S.W.3d at

593.

       In this case, the record contains no affidavits or sworn declarations

regarding previous lawsuits filed by appellant, which are required by civil

practice and remedies code section 14.004(a). 3 Thus, even if the trial court

had jurisdiction to consider appellant’s issues, without this document, the trial

court was unable to determine whether appellant’s current claim was

substantially similar to his previous claims and the trial court was entitled to

assume that the suit was substantially similar to one previously filed by the

inmate, and therefore, frivolous. Williams, 176 S.W.3d at 593. We overrule

appellant’s second issue.4



       3
      The record reflects that appellant filed an inmate trust account statement
in compliance with civil practice and remedies code sections 14.004(c) and
14.006(f). T EX. C IV. P RAC. & R EM. C ODE A NN. §§ 14.004(c), 14.006(f).
       4
       Because we have determined that the trial court appropriately dismissed
appellant’s petition for writ of mandamus and overruled his second issue, we
need not address appellant’s third issue challenging the propriety of the
dismissal on other grounds. See T EX. R. A PP. P. 47.1; Williams v. Mooneyham,

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Dismissal with Prejudice

      In his fourth issue, appellant argues that the trial court’s dismissal should

not have been made with prejudice.

      A dismissal with prejudice constitutes an adjudication on the merits and

operates as if the case had been fully tried and decided. Ritchey v. Vasquez,

986 S.W.2d 611, 612 (Tex. 1999); Knight, 52 S.W.3d at 295; Mooneyham,

2008 WL 281525, at *3. Thus, orders dismissing cases with prejudice have

full res judicata and collateral estoppel effect, barring subsequent relitigation of

the same causes of action or issues between the same parties. See Barr v.

Resolution Trust Corp., 837 S.W.2d 627, 630-31 (Tex. 1992); see also Steger

v. Muenster Drilling Co., Inc., 134 S.W.3d 359, 368 (Tex. App.—Fort Worth

2003, pet. denied).

      A dismissal with prejudice is improper if the plaintiff’s failure to comply

with the statute’s procedural requirements can be remedied.           Mooneyham,

2008 WL 281525, at *3; see also Hickman v. Adams, 35 S.W.3d 120, 124

(Tex. App.—Houston [14th Dist.] 2000, no pet.). When reviewing whether the

trial court abused its discretion by dismissing with prejudice, this court should

consider whether the petitioner’s error could be remedied with a more specific



No. 02-06-00348-CV, 2008 WL 281525, at *4 (Tex. App.—Fort Worth Jan.
31,2008, no pet.) (mem. op.).

                                        11
pleading; if so, a dismissal with prejudice is improper. Mooneyham, 2008 WL

3203126, at *3; see also Knight, 52 S.W.3d at 294.

      Here, the trial court’s dismissal with prejudice acts as a bar to any original

proceeding brought by appellant against the same parties arising out of the

same facts. Appellant cannot remedy the trial court’s jurisdictional deficiency

by repleading, unless the trial court otherwise obtains jurisdiction over the

cause. But dismissing a claim based on lack of subject matter jurisdiction does

not operate as res judicata. See Igal v. Brightstar Info. Tech. Group, Inc., No.

04-0931, 2007 WL 4276545, at *2 (Tex. Jan. 17, 2007) (stating res judicata

does not apply when the initial tribunal lacks subject matter jurisdiction over the

claim); see also Harris County v. Sykes, 136 S.W.3d 635, 639 (Tex. 2004)

(stating a dismissal with prejudice is improper when the plaintiff is capable of

remedying the jurisdictional defect). Thus the trial court should have dismissed

without prejudice.    See Harris County, 136 S.W.3d at 639.            We sustain

appellant’s fourth issue.




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                                  Conclusion

      Having sustained appellant’s fourth issue and having overruled his other

issues, we modify the trial court’s order of dismissal by deleting the words

“with prejudice” and substituting in their place the words, “without prejudice.”

The trial court’s judgment is affirmed as modified.




                                                 TERRIE LIVINGSTON
                                                 JUSTICE

PANEL F:    LIVINGSTON, GARDNER, and WALKER, JJ.

DELIVERED: March 6, 2008




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