                                  NO. 07-10-0159-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL E

                                 JANUARY 3, 2011
                         ______________________________

                              RODNEY EARL WILLIAMS,

                                                                     Appellant
                                            v.

                                RICK THALER, ET AL.,

                                                                     Appellees
                       _________________________________

             FROM THE 12TH DISTRICT COURT OF WALKER COUNTY;

                 NO. 25018; HON. DONALD KRAEMER, PRESIDING
                       _______________________________

                               Memorandum Opinion
                         _______________________________

Before QUINN, C.J., and HANCOCK and BOYD, JJ.

      Rodney Earl Williams (pro se) appeals the dismissal of his lawsuit against Rick

Thaler, Cheryl Lawson, Eileen Kennedy, John P. Werner, Billy J. Reeves and Linda D.

Ebner (collectively referred to as Thaler). An inmate, Williams, sued those individuals

alleging retaliation, conspiracy, racial discrimination, harassment, and cruel and unusual

punishment. Leave was sought to prosecute his claim as an indigent. Thereafter,

Thaler moved to dismiss the suit because Williams failed to comply with §14.004 of the

Texas Civil Practice and Remedies Code; that is, Williams failed to file an affidavit
“identifying and describing each lawsuit previously filed by [him].”          The trial court

granted the motion and dismissed the cause with prejudice. Williams challenges this

dismissal. We modify the order, and as modified, affirm it.

       Section 14.004 requires an inmate seeking to prosecute claims as an indigent to

“file a separate affidavit or declaration . . . identifying each suit . . . previously brought”

pro se. TEX. CIV. PRAC. & REM. CODE ANN. §14.004(a)(1) (Vernon 2002). In the affidavit,

the inmate is obligated to describe each suit by its 1) operative facts, 2) style, cause

number, and court in which it was filed, 3) parties, and 4) outcome. Id. §14.004(a)(2)

(A)-(D). Moreover, failing to comply with §14.004 warrants the dismissal of the suit.

Carson v. Walker, 134 S.W.3d 300, 303 (Tex. App.–Amarillo 2003, pet. denied)

(dismissing suit because Carson failed to mention the operative facts underlying his

prior lawsuits).

       Williams lists two lawsuits, “Rodney Earl Williams vs. Erma Jean Martin” and

“Rodney Earl Williams v. Billie Harris and Deteta Jones, et, al.” However, he fails to

include a description of the operative facts underlying the relief sought and the cause

numbers.     Therefore, Williams failed to comply with §14.004(a), and dismissal was

warranted.

       Accordingly, the trial court did not abuse its discretion in dismissing Williams’

petition. Carson v. Walker, 134 S.W.3d at 302 (holding that the appropriate standard of

review is one of abused discretion). But, because the suit was dismissed with prejudice

and the merits of his underlying claims were not adjudicated by the trial court, we modify

the dismissal to reflect that it was without prejudice. See id. at 303 (holding that when




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the underlying merits of the suit are not adjudicated, the proceeding should be

dismissed without prejudice). As modified, the order of dismissal is affirmed.



                                                Per Curiam




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