Richard Simmons v. Gib Lewis Ext. CB 40 ( 2003 )

In The

Court of Appeals

Ninth District of Texas at Beaumont ____________________

NO. 09-03-257 CV ____________________

RICHARD SIMMONS, Appellant

V.

GIB LEWIS EXT. CB #40, Appellee

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On Appeal from the 1-A District Court Tyler County, Texas Trial Cause No. 18,474

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MEMORANDUM OPINION ⁽¹⁾

Richard Simmons, an inmate confined in the Texas Department of Criminal Justice, Institutional Division, filed a suit in which "Gib Lewis Ext. CB #40" was the sole named defendant. The petition sought a temporary restraining order "preventing defendants from continuing to deprive plaintiff of sleep and medical/psychological treatment." Although they were not named as defendants in the petition, two Department employees, named David Bone and Robert Ott, filed a motion to dismiss the suit for failure to file an affidavit of previous filings and an inmate trust account statement with his petition, and for failure to exhaust administrative remedies. See Tex. Civ. Prac. & Rem. Code Ann. §§ 14.003, 14.004(a)(2), 14.005 (Vernon 2002). The trial court dismissed the suit, and Simmons appealed.   

The appeal was submitted on the clerk's record alone because no hearing was recorded. On October 28, 2003, we notified the parties that the appeal would be advanced without oral argument. See Tex. R. App. P. 39.9. The appeal was submitted without briefs because the appellant failed to file his brief by the August 20, 2003, due date. See Tex. R. App. P. 38.8(a)(2). ⁽²⁾ The appellant did not request an extension of time to file the brief. See Tex. R. App. P. 38.6(d).

We have reviewed the record for fundamental error, and find none. The judgment of the trial court is affirmed.

AFFIRMED.

PER CURIAM

Submitted on November 18, 2003

Opinion Delivered December 4, 2003

Before McKeithen, C.J., Burgess and Gaultney, JJ.

1. Tex. R. App. P. 47.4.

2. An inmate named Patrick Lee Mullins submitted an amicus curiae brief. The brief argues that Chapter 14 of the Civil Practice and Remedies Code does not apply to suits for injunction. As this is not an action brought under the Family Code, the Act does apply to Simmons's suit. See Tex. Civ. Prac. & Rem. Code Ann. § 14.002 (Vernon 2002). The amicus brief also suggests the trial court erred in dismissing the suit without prior notice to Simmons. Simmons was not entitled to notice and opportunity to cure prior to dismissal of his in forma pauperis suit under Section 14.003. Hughes v. Massey, 65 S.W.3d 743, 745 (Tex. App.-Beaumont 2001, no pet.).