Dan Thomas v. J. Frerichs & T. Brooks
This text of Dan Thomas v. J. Frerichs & T. Brooks (Dan Thomas v. J. Frerichs & T. Brooks) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
IN THE
TENTH COURT OF APPEALS
No. 10-00-330-CV
DAN THOMAS,
Appellant
v.
J. FRERICHS AND T. BROOKS,
Appellees
From the 411th District Court
Polk County, Texas
Trial Court # CIV 18102
O P I N I O N
Appellant Thomas appeals an order of the trial court dismissing his pro-se informa-pauperis lawsuit as frivolous.
Appellant, an inmate at the Terrell Unit of the Institutional Division of the Texas Department of Criminal Justice in Polk County, filed suit against Jarrold Frerichs and Tasha Brooks, correctional officers at the Terrell Unit. Appellant alleged that he was a Muslim and that Appellees denied him the right to participate in the Muslim Jumah prayer services. He alleged his First Amendment right to free exercise of religion was violated, and that because he was denied the opportunity to attend worship services, he experienced headaches, elevated high blood pressure and suffered humiliation and emotional distress. Appellant sought actual and punitive damages.
Appellees filed an answer and then filed a motion to dismiss pursuant to Chapter 14 of the Texas Civil Practice and Remedies Code. The trial court granted the motion to dismiss.
Appellant appeals presenting two issues.
In issue one, Appellant contends that the State’s failure to file special exceptions or a plea in abatement to Appellant’s pleadings waived their right to complain about defects in those pleadings.
Chapter 14 of the Texas Civil Practice and Remedies Code applies to suits brought by an inmate who has filed an “affidavit or unsworn declaration of inability to pay costs.” Section 14.003 allows a court to dismiss a suit before or after process is served if the court finds: 1) that the allegation of poverty is false, or 2) the claim is frivolous or malicious.
Section 14.004 requires the inmate to file a separate affidavit or declaration identifying each prior suit brought by the inmate, specifying the operative facts, the cause number, the case name, the court in which it was brought, the names of the parties, and the result of the suit.
Our review of a dismissal under Chapter 14 is controlled by the abuse of discretion standard. Abuse of discretion is determined by whether the court acted without reference to any guiding principles. Craddock v. Sunshine Bus Lines, 133 S.W.2d 124, 126 (Tex. 1939). Stated another way: Was the act of the court arbitrary or unreasonable? Smithson v. Cessna Aircraft Co., 665 S.W.2d 439, 443 (Tex. 1994).
Appellant’s petition was not accompanied by an affidavit or unsworn declaration as required by Chapter 14. Thus, there was no abuse of discretion in the trial court’s dismissal of Appellant’s case. Hickson v. State, 926 S.W.2d 397, 398 (Tex. App.—Waco 1996, no writ).
Appellant argues that the failure of the State to file a special exception or plea in abatement to Appellant’s pleadings waived his pleadings’ defects.
It is true that Rule 90, Tex. R. Civ. P., (promulgated by the Supreme Court) provides:
that every defect, omission or fault in a pleading, either of form or of substance, which is not specifically pointed out by exception in writing and brought to the attention of the trial court before judgment is signed, shall be waived.
But the foregoing does not help Appellant because Section 14.014 of Chapter 14, entitled Conflict with Texas Rules of Civil Procedure provides that “this chapter may not be modified or repealed by rule of the Supreme Court.”
Appellant’s first issue is overruled.
In his second issue, Appellant contends that Section 14.004 is violative of the Texas Constitution. Specifically, Appellant contends that Section 14.004 violates Sections 3, 3A, 15 and 19 of Article 1 and Section 56, Article 3.
Section 3, Article 1, provides that all free men have equal rights and that no man is entitled to exclusive privilege, but in consideration of public service.
Section 3A, Article 1, provides that equality under the law shall not be denied because of race, color and/or national origin.
Section 15, Article 1, provides that the right of trial by jury shall remain inviolate.
Section 19, Article 1, provides that no person shall be deprived of life, liberty, property, privileges or immunities except by due course of the law of the land.
We have previously held that Chapter 13 (predecessor to Chapter 14) does not violate Section 19, Article 1 of the Texas Constitution. Spellman v. State, 819 S.W.2d 909, 910 (Tex. App.—Waco 1991, no writ). We now hold that Sections 3, 3A, and 15 of Article 1 are not violated by Section 14.004 of the Texas Civil Practice and Remedies Code.
Section 56, Article 3, of the Texas Constitution provides in relevant part, that where a general law can be made applicable, no special law shall be enacted.
Appellant contends that Section 14.004, Chapter 14, Texas Civil Practice and Remedies Code is a special law, and is thus, violative of Section 56, Article 3 of the Texas Constitution.
The primary and ultimate test of whether a law is general or special is whether there is a reasonable basis for the classification made by the law, and whether the law operates equally on all within the class. Rodriquez v. Gonzales, 227 S.W.2d 791, 793 (Tex. 1950); Maple Run v. Monaghan, 931 S.W.2d 941, 945 (Tex. 1996).
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