Cooper v. TDCJ (Tex.App.- Houston [14th Dist.] May 12, 2009)(Frost)
prisoner inmate IFP suit dismissal with prejudice affirmed)
AFFIRMED: Opinion by Justice Frost  
Before Justices Frost, Brown and Boyce
14-07-00741-CV Steven P. Cooper v. Texas Department of Criminal Justice Et Al
Appeal from 412th District Court of Brazoria County
Trial Court Judge: W. Edwin Denman  

Affirmed and Memorandum Opinion filed May 12, 2009

In The

Fourteenth Court of Appeals


NO. 14-07-00741-CV





On Appeal from the 412th District Court

Brazoria County, Texas

Trial Court Cause No. 43680

M E M O R A N D U M   O P I N I O N

Appellant/plaintiff Steven P. Cooper appeals the trial court=s dismissal of his claims.  We affirm.

I.  Factual and Procedural Background

Cooper is an inmate in the Texas Department of Criminal Justice, Institutional Division (hereinafter
ATDCJ@).  On July 19, 2007, Cooper filed a pro se, in forma pauperis lawsuit against numerous TDCJ
employees alleging violation of Title 42, section 1983 of the United States Code.  On July 31, 2007,
without a hearing, the trial court dismissed Cooper=s claims with prejudice.  The trial court=s order
provides, AOn this date the Court reviewed the pleadings in the above referenced cause.  It appearing
that the Plaintiff has failed to state a cause of action as a matter of law, it is ORDERED that this cause is
dismissed with prejudice to the rights of the Plaintiff to refile the same.@  

II.  Issue and Analysis

On appeal, Cooper challenges the trial court=s ruling by arguing that dismissal was improper under
Chapter 14[1] of the Texas Civil Practice and Remedies Code, which governs suits filed by inmates.  See
Tex. Civ. Prac. & Rem. Code Ann. ' 14.002(a) (Vernon 2002); see also Hickman v. Adams, 35 S.W.3d
120, 123 (Tex. App.CHouston [14th Dist.] 2000, no pet.).  The trial court, however, did not dismiss under
this statute; rather, the trial court dismissed on the merits of the claims asserted.  Any dispute as to the
nature of the dismissal is resolved by looking to the language of the trial court=s order.

As with other rules of interpretation for written instruments, when construing a trial court=s order, our
primary concern is to give effect to the intention of the trial court.  See Lone Star Cement Corp. v. J. Roll
Fair, District Judge, 467 S.W.2d 402, 404B05 (Tex. 1971).  When, as in this case, a trial court=s order is
unambiguous, we construe the order as a whole and declare its intent in light of the literal language used,
without considering matters extrinsic to the order.  See Reiss v. Reiss, 118 S.W.3d 439, 441B42 (Tex.
2003) (holding that unambiguous decree must be enforced literally, without consideration of matters
extrinsic to the decree); Gulf Ins. Co. v. Burns Motors, Inc., 22 S.W.3d 417, 422 (Tex. 2000) (holding that
language of unambiguous judgment must be enforced without consideration of extrinsic evidence as to its
meaning).  It is clear from the unambiguous language of the dismissal order that the trial court dismissed
Cooper=s claim on the merits, stating that Athe Plaintiff has failed to state a cause of action as a matter of
law.@  The trial court made no mention of Chapter 14 nor did it otherwise indicate that the dismissal was
based on any failure to comply with that statute.

Even though the trial court clearly dismissed his claims on the merits, Cooper has not attacked the
merits-based dismissal, nor has he briefed this issue.  The trial court=s dismissal of Cooper=s claims was
Awith prejudice;@ yet, the only basis upon which Cooper has challenged the trial court=s order is under
Chapter 14, in which dismissals of claims for failure to comply with sections 14.003 and 14.004 should be
Awithout prejudice.@  See Hickman, 35 S.W.3d at 124B25.  Because the trial court, in an unambiguous
order, did not dismiss Cooper=s claims under Chapter 14, and because Cooper does not attack the trial
court=s dismissal on the merits on any other grounds, his challenge necessarily fails and we can affirm on
this basis alone.

Even if the trial court had dismissed Cooper=s claims under Chapter 14, his arguments still would fail
because it is clear from the record that Cooper did not comply with the statute.  Because Cooper is an
inmate, his suit is governed by Chapter 14.  Tex. Civ. Prac. & Rem. Code Ann. ' 14.002(a) (Vernon 2002);
see Hickman, 35 S.W.3d at 123.  A reviewing court evaluates a trial court=s dismissal of an inmate=s
claims under this statute using an abuse-of-discretion standard.  Retzlaff v. Tex. Dep=t of Criminal
Justice, 94 S.W.3d 650, 654 (Tex. App.CHouston [14th Dist.] 2002, pet. denied).  A trial court has broad
discretion to dismiss an inmate=s suit if it finds that the claim asserted is frivolous or malicious.  See
Martinez v. Thaler, 931 S.W.2d 45, 46 (Tex. App.CHouston [14th Dist.] 1996, writ denied).  A trial court
abuses this broad discretion if it acts arbitrarily, capriciously, or without reference to any guiding rules or
principles.  See id.

Section 14.003 provides that a trial court may dismiss a claim before or after service of process if the
court finds any of the following (1) that the allegation of poverty in the affidavit or unsworn declaration is
false; (2) that the claim is frivolous or malicious; or (3) that the inmate filed an affidavit or unsworn
declaration that the inmate knew was false.  Tex. Civ. Prac. & Rem. Code Ann. ' 14.003 (Vernon 2002).  In
determining whether a suit is frivolous or malicious, the court may consider, among other things, whether
the claim is substantially similar to a previous claim filed by the inmate because the claim arises from the
same operative facts.  See id. ' 14.003(b)(4).  To enable the trial court to determine whether a claim
arises from the same operative facts as a previous claim, the legislature enacted section 14.004.  
Hickman, 35 S.W.3d at 124; see Tex. Civ. Prac. & Rem. Code Ann. ' 14.004 (Vernon 2002).

Section 14.004, entitled AAffidavit Relating to Previous Filings,@ requires an inmate who files an affidavit
or unsworn declaration of inability to pay costs to file a separate affidavit or declaration setting out the
following information:

(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.

Tex. Civ. Prac. & Rem. Code Ann. ' 14.004(a).

The record in this case contains no affidavits or unsworn declarations in compliance with section 14.004.  
Cooper filed a declaration listing previous lawsuits filed, but failed to set forth in sufficient detail the
operative facts upon which relief was sought in each suit.  See Tex. Civ. Prac. & Rem. Code Ann. '
14.004(a)(2)(A) (requiring description of operative facts of previous litigation).  Moreover, in his
declaration, Cooper does not identify the parties named in the previous suits.  See id. ' 14.004(a)(2)(C).  
Without a more detailed description of the operative facts surrounding each of Cooper=s previous
lawsuits and identification of those parties involved, the trial court would have been in no position to
evaluate whether Cooper=s current claims were substantially similar to his previous claims.  See Bell v.
Tex. Dep=t of Criminal Justice-Inst. Div., 962 S.W.2d 156, 158 (Tex. App.CHouston [14th Dist.] 1998, pet.
denied).  When, as in this case, an inmate files an affidavit or declaration that fails to comply with the
requirements of section 14.004, the trial court is entitled to presume that the suit is substantially similar to
one previously filed by the inmate, and therefore, frivolous.  Bell, 962 S.W.2d at 158.  Accordingly, a trial
court may dismiss an indigent inmate=s suit as frivolous or malicious without holding a hearing when an
inmate fails to comply with the statutory requirements of section 14.004.  See Gowan v. Tex. Dep=t of
Criminal Justice, 99 S.W.3d 319, 321 (Tex. App.CTexarkana 2003, no pet.).  For this reason, even if the
trial court had based its dismissal of Cooper=s claims on Chapter 14, we would find no error in the
dismissal of these claims.[2]

III.  Conclusion

Under the unambiguous language of the order of dismissal, the trial court dismissed Cooper=s claims on
the merits, with prejudice.  In challenging this dismissal on appeal, the only argument Cooper asserts is
that dismissal was improper under Chapter 14.  Cooper=s argument necessarily fails because it is based
on a false premise.  But even if the order could be construed as a Chapter 14 dismissal, this court could
find no abuse of discretion by the trial court because Cooper clearly failed to comply with the statute=s
requirements.  Accordingly, we overrule Cooper=s issue and affirm the trial court=s judgment.

/s/      Kem Thompson Frost


Panel consists of Justices Frost, Brown, and Boyce.


[1]  Unless otherwise stated, all references in this opinion to a section are to the corresponding section of
the Texas Civil Practice and Remedies Code.

[2]  Cooper has not argued on appeal that even if this court affirms, it should reform the judgment so that
his claims are not dismissed Awith prejudice.@