                              NO. 07-02-0514-CV

                         IN THE COURT OF APPEALS

                   FOR THE SEVENTH DISTRICT OF TEXAS

                                AT AMARILLO

                                  PANEL E

                             NOVEMBER 5, 2003

                      ______________________________


                    RICKY STARKS, #733678, APPELLANT

                                      V.

          THE TEXAS DEPARTMENT OF CRIMINAL JUSTICE, APPELLEE


                    _________________________________

           FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;

              NO. 089812-00-E; HONORABLE ABE LOPEZ, JUDGE

                     _______________________________

Before REAVIS and CAMPBELL, JJ., and BOYD, S.J.1


                            Memorandum Opinion




      1
      John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by
assignment. Tex. Gov’t Code Ann. §75.002(a)(1) (Vernon Supp. 2003).
       Appellant Ricky Starks appeals from an order dismissing his pro se, in forma

pauperis suit under Chapter 14 of the Texas Civil Practice and Remedies Code (the Code).

We affirm the judgment of the trial court.


                                    Procedural History


       Appellant is an inmate at the Clements Unit of the Texas Department of Criminal

Justice, Institutional Division (the Department). On April 29, 2002, he filed suit against the

Department alleging he had sustained mental and physical suffering as a result of being

obliged to sit on a concrete floor because of a lack of adequate seating in the penitentiary

day room. On June 19, 2002, the Department filed its answer and, incident to that answer,

filed a special exception seeking a dismissal of the suit on the basis that appellant had not

filed an affidavit sufficient to satisfy section 14.004 of the Code and, in particular, that

appellant had failed to include the operative facts about previous suits filed by him.


       On June 20, 2002, the trial court entered an order sustaining the exception and

allowing appellant ten days to “re-plead his cause of action against Defendant in

conformity with this order.” In response to that order, appellant filed a sequence of

pleadings in which he asserted that his failure to meet the requirements of the statute were

because Chapter 14 was not included in the copy of the Code in the prison library, that the

trial court should take judicial notice of his prior suits which were dismissed on a “time

barred basis,” and that the “insufficient issues in his present affidavit are the result of

prejudice caused to him by the defendant.” On October 17, 2002, the trial court executed


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the order dismissing appellant’s suit on the basis that it was “FRIVOLOUS for failure to

comply with Chapter 14 of the Texas Civil Practices [sic] and Remedies Code.”


       In presenting his appeal, and in various issues directed at the same question,

appellant contends the trial court reversibly erred in dismissing his suit because of a failure

to comply with Chapter 14 of the Code. In his reply brief, he focalizes his challenge to be

the “controlling error is his [appellant’s] allegation of being deprived of total access to the

only information relevant to the issue upon which his lawsuit was dismissed, during the

relevant time period he was required to prepare and file the action.”


                                         Discussion


       As an inmate, appellant’s suit is governed by Chapter 14 of the Texas Civil Practice

and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. §§ 14.001-014 (Vernon

2002); Thompson v. Henderson, 927 S.W.2d 323, 324 n.1 (Tex. App.–Houston [1st Dist.]

1996, no writ). Chapter 14 was designed to control the flood of frivolous lawsuits being

filed in the courts of this state by prison inmates that consume valuable judicial resources

with little offsetting benefits. Hickson v. Moya, 926 S.W.2d 397, 399 (Tex. App.–Waco

1996, no writ). Under this chapter, a trial court has broad discretion to dismiss an inmate’s

suit if it finds that the claim is frivolous or malicious. Hickman v. Adams, 35 S.W.3d 120,

123 (Tex. App.–Houston [14th Dist.] 2000, no pet.).




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        A trial court’s dismissal of a suit such as this one in which the inmate has filed an

affidavit or declaration of inability to pay costs is reviewed under an abuse of discretion

test. Barnum v. Munson, 998 S.W.2d 284, 286 (Tex. App.–Dallas 1999, pet. denied);

McCollum v. Mt. Ararat Baptist Church, Inc., 980 S.W.2d 535, 536 (Tex. App.–Houston

[14th Dist.] 1998, no pet.); Hickson v. Moya, 926 S.W.2d at 398-99. A court abuses its

discretion if it acts without reference to guiding rules or principles. Clark v. J. W. Estelle

Unit, 23 S.W.3d 420, 421 (Tex. App.–Houston [1st Dist.] 2000, pet. denied).               It is

discretionary with the court to conduct a hearing to determine whether an inmate’s suit

should be dismissed. Thomas v. Wichita General Hosp., 952 S.W.2d 936, 938 (Tex.

App.– Fort Worth 1997, pet. denied).


       Section 14.003 of the Code provides that a trial court may dismiss a claim if the

court finds the claim to be frivolous or malicious. Tex. Civ. Prac. & Rem. Code Ann. §

14.03(a)(2) (Vernon 2002). In determining whether a suit is frivolous or malicious, the

court may consider, inter alia, whether the claim is substantially similar to a previous claim

filed by the inmate because the claim arises from the same operative facts. Id. §

14.003(b)(4).


       In this case, even though he was given a specific opportunity to do so, other than

additional general allegations, appellant failed to amend his affidavit to allege the specific

operative facts of his prior suits. Under this record, we cannot say that the trial court erred

in its dismissal of this inmate suit.



                                              4
       Accordingly, all of appellant’s points are overruled, and the judgment of the trial

court is affirmed.



                                                John T. Boyd
                                                Senior Justice




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