Opinion
No. 09-04-039 CV.
Submitted on April 5, 2004.
Opinion Delivered May 6, 2004.
On Appeal from the 411th District Court, Polk County, Texas, Trial Cause No. Civ 21,117.
Affirmed As Reformed.
Lloyd E. Burruss, Livingston, TX, pro se.
Before McKEITHEN, C.J., BURGESS and GAULTNEY, JJ.
MEMORANDUM OPINION
Lloyd E. Burruss, an inmate in the Texas Department of Criminal Justice, Institutional Division, filed a negligence suit against Institutional Division employees or former employees William Sherman, Richard K. Alford, Chuck Biscoe, Patricia Schultz, Pauline Luce, James Zeller, and "Unknown administrators who sign certificates of compliance to acquire federal funds." Burruss alleged that the defendants stole food from inmates and served it in the officers' dining room, and served better food in the officers' dining room than in the inmates' dining room. Burruss alleged that staff shortages and cuts in programs beneficial to inmates were attributable to the theft of food. The trial court dismissed the suit for filing a non-conforming affidavit of previous filings. Burruss does not challenge the trial court's ruling that the affidavit of previous filings did not contain the information required by statute. See TEX. CIV. PRAC. REM. CODE ANN. § 14.004 (Vernon 2002). Nor does the appellant challenge the trial court's ruling that his case is frivolous under TEX. CIV. PRAC. REM. CODE ANN. § 14.003(b)(4) (Vernon 2002). The sole point of error challenges the dismissal of the suit with prejudice to its refiling.
A dismissal for failure to comply with the rules governing the filing of in forma pauperis suits is not a ruling on the merits. Hughes v. Massey, 65 S.W.3d 743, 746 (Tex. App.-Beaumont 2001, no pet.). If the deficiency in the inmate's suit may be remedied in a subsequent filing, then a dismissal with prejudice is improper. Hickman v. Adams, 35 S.W.3d 120, 124 (Tex. App.-Houston [14th Dist.] 2000, no pet.). "The proper remedy is to modify the judgment by deleting the words `with prejudice' and by substituting the words `without prejudice.'" Hughes, 65 S.W.3d at 746 (citing TEX. R. APP. P. 43).
Point of error one is sustained. We reform the judgment to provide the cause is dismissed without prejudice. As reformed, the judgment is affirmed.