Donald Foster v. Rick Thaler ( 2010 )

IN THE
TENTH COURT OF APPEALS
No. 10-09-00393-CV
DONALD FOSTER,
Appellant
v.
RICK THALER,
Appellee
From the 278th District Court
Walker County, Texas
Trial Court No. 24,769
MEMORANDUM OPINION
Donald Foster appeals the dismissal of his lawsuit as frivolous under Chapter 14
of the Civil Practice and Remedies Code. He contends in two issues that the court erred
because: (1) his pending recusal motion should have first been addressed; and (2) his
lawsuit is not frivolous. We will affirm.
Rule of Civil Procedure 18a(b) states in pertinent part, “On the day the motion
[to recuse] is filed, copies shall be served on all other parties or their counsel of record,
together with a notice that movant expects the motion to be presented to the judge three
days after the filing of such motion unless otherwise ordered by the judge.” TEX. R. CIV.
P. 18a(b). If a party fails to provide this notice, he waives the right to complain of a
judge’s failure to recuse himself. Carson v. Serrano, 96 S.W.3d 697, 698 (Tex. App.—
Texarkana 2003, pet. denied). Because Foster failed to provide this notice, he waived
the right to complain of the judge’s failure to recuse himself. Id. Thus, we overrule his
first issue.
Chapter 14 of the Civil Practice and Remedies Code applies to suits filed by an
inmate and accompanied by an affidavit or unsworn declaration of inability to pay
costs.1 TEX. CIV. PRAC. & REM. CODE ANN. § 14.002(a) (Vernon 2002); Hamilton v.
Williams, 298 S.W.3d 334, 339 (Tex. App.—Fort Worth 2009, pet. denied). The trial court
may dismiss such a suit if the inmate fails to comply with the requirements of Chapter
14. See Hamilton, 298 S.W.3d at 339.
Section 14.004 requires the inmate to file an affidavit or unsworn declaration
listing each suit (other than suits under the Family Code) the inmate previously filed.
TEX. CIV. PRAC. & REM. CODE ANN. § 14.004 (Vernon 2002). Because Foster did not
comply with section 14.004, the court did not abuse its discretion by dismissing his suit.
See Hamilton, 298 S.W.3d at 339. Thus, we overrule his second issue.
We affirm the judgment.
FELIPE REYNA
Justice
1
Chapter 14 does not apply to suits filed under the Family Code. TEX. CIV. PRAC. & REM. CODE
ANN. § 14.002(b) (Vernon 2002).
Foster v. Thaler Page 2
Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
Affirmed
Opinion delivered and filed October 13, 2010
[CV06]
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