Opinion
No. 09-03-511 CV
Submitted on October 26, 2004.
Opinion Delivered December 22, 2004.
On Appeal from the 258th District Court Polk County, Texas, Trial Court Cause No. 18060.
Affirmed.
Dan Thomas, pro se, Rosharon, TX for Appellant.
Greg Abbott, Attorney General of Texas, Austin, TX for Appellees.
Christopher J. Oddo, Assistant Attorney General, Austin, TX for Appellees.
Before McKEITHEN, C.J., BURGESS and GAULTNEY, JJ.
MEMORANDUM OPINION
Dan Thomas, a Texas prison inmate, filed suit against William Bynum and Billy Reese. Thomas alleged Bynum slandered him by calling him a "queer," and that he verbally abused him. Thomas claimed Reese, the shift lieutenant of security, never properly investigated Thomas' claims, committed fraud by filing false disciplinary charges, denied Thomas access to the disciplinary proceeding, and imposed punitive restrictions, including restriction of exercise and commissary privileges for one month. Thomas sought a declaratory judgment, injunctive relief, compensatory damages, and exemplary damages. Thomas stated he was unable to pay filing costs, and sought to proceed in forma pauperis. Bynum and Reese filed a no-evidence motion for summary judgment, which the trial court granted, dismissing all of Plaintiff's causes of action. Thomas appealed, and the Fourth Court of Appeals affirmed in part, reversed in part, and remanded the case to the trial court. See Thomas v. Bynum, No. 04-02-00036-CV, 2003 WL 553277 (Tex.App. Feb. 28, 2003, no pet.).
Thomas now appeals the trial court's subsequent order dismissing his case, which stated as follows:
BE IT REMEMBERED that on this day came to be considered Defendant Bynum and Reese's Motion to Dismiss Pursuant to Chapter 14. The Court, after considering the pleadings of the parties filed herein, is of the opinion that the following order should issue:
It is hereby ORDERED that said Motion is GRANTED. Plaintiff's cause of action is hereby DISMISSED as to all claims.
All other relief not here expressly granted is hereby DENIED.
Section 14.004(a) of the Civil Practices and Remedies Code states as follows:
(a) An inmate who files an affidavit or unsworn declaration of inability to pay costs shall file a separate affidavit or declaration:
(1) identifying each suit, other than a suit under the Family Code, previously brought by the person and in which the person was not represented by an attorney, without regard to whether the person was an inmate at the time the suit was brought; and
(2) describing each suit that was previously brought by:
(A) stating the operative facts for which relief was sought;
(B) listing the case name, cause number, and the court in which the suit was brought;
(C) identifying each party named in the suit; and
(D) stating the result of the suit, including whether the suit was dismissed as frivolous or malicious under Section 13.001 or Section 14.003 or otherwise.
See Tex. Civ. Prac. Rem. Code Ann. § 14.004 (Vernon 2002). A failure to file the required affidavit may result in a dismissal, without prejudice. See Thomas v. Skinner, 54 S.W.3d 845, 846-47 (Tex.App. 2001, pet. denied). In this appeal, Thomas asserts the doctrine of res judicata, the law of the case doctrine, lack of prior notice of the dismissal, and an objection to the presence of attorneys for the defendant other than lead counsel.
The applicability of Chapter 14.004(a) was not addressed in the prior appeal. Contrary to appellant's assertion, res judicata and the law of the case doctrine do not preclude the dismissal order. See generally Musgrave v. Owen, 67 S.W.3d 513, 519 (Tex.App. 2002, no pet.) ( res judicata applies if two claims are based on same nucleus of operative facts); see also Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex. 1986) (law of the case). Appellant also complains that the attorney at the hearing on the dismissal order was "non-designated and unauthorized under the Rules of Civil Procedure of Texas[.]" Contrary to appellant's assertion, the trial court may permit attorneys other than the attorney in charge to appear in the case. See generally Sunbeam Envtl. Servs., Inc. v. Texas Workers' Compensation Ins. Facility, 71 S.W.3d 846, 851 (Tex.App. 2002, no pet.) (holding appellants cited no authority for the proposition that documents filed by other attorneys were invalidly filed, nor did they demonstrate harm as required by Tex.R.App.P. 44.1).
Section 14.003(a) of the Civil Practices and Remedies Code states a trial court may dismiss a claim before or after service of process. See Tex. Civ. Prac. Rem. Code Ann. § 14.003(a) (Vernon 2002). We have held an inmate has no right to notice before a Section 14.003 dismissal. See Hughes v. Massey, 65 S.W.3d 743, 745 (Tex.App. 2001, no pet.). Thomas has not shown he filed the required affidavit. On this record we cannot say the trial court abused its discretion by dismissing Thomas' case. See Hickson v. Moya, 926 S.W.2d 397, 399 (Tex.App. 1996, no pet.). The order of dismissal is affirmed.