NO. 12-04-00087-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

LESLIE RAY FOSTER,                                    §     APPEAL FROM THE 87TH

APPELLANT

V.                                                                         §     JUDICIAL DISTRICT COURT OF

T.D.C.J.–I.D., ET AL.,                                       §     ANDERSON COUNTY, TEXAS

APPELLEES

MEMORANDUM OPINION

            Appellant Leslie Ray Foster, an inmate proceeding pro se, appeals the trial court’s dismissal with prejudice of his lawsuit against the Texas Department of Criminal Justice-Institutional Division (“TDCJ”) and the Texas Board of Pardon and Paroles Division (the “Board”). Foster raises one issue on appeal. We affirm.

Background

            On December 11, 2003, Foster filed suit against TDCJ and the Board. In his original petition, Foster challenged an administrative directive that defendants retroactively applied to all inmates sentenced after September 1, 1987, including Foster, who had begun their second sentence. Foster alleged that the defendants’ action violated the separation of powers doctrine and both the Ex Post Facto Clause and the Equal Protection Clause of the federal and state constitutions. Thus, he requested the trial court issue a declaratory judgment against defendants. On January 12, 2004, without conducting a hearing, the trial court found that Foster’s suit was frivolous or malicious and dismissed it with prejudice pursuant to Chapter 14 of the Texas Civil Practice and Remedies Code.

Order of Dismissal

            In his sole issue, Foster argues that the trial court erred by dismissing his civil action under the Texas Family Code. Foster contends the trial court and the district clerk of the court failed to correct or consider the civil action as properly filed and, therefore, refused to take any action. However, the order of dismissal stated as follows:

On this 11th day of December ,2003, Plaintiff filed his Original Petition with the District Clerk of Anderson County, Texas. It is obvious to the Court that this civil action is not brought under the Family Code and is a cause of action governed by Chapter 14 of the Texas Civil Practice and Remedies Code. The Court finds that the claim is frivolous or malicious.

Accordingly and pursuant to Chapter 14 of the Texas Civil Practice and Remedies Code, the petition as filed is ordered dismissed. It is hereby, ORDERED, ADJUDGED AND DECREED that the action of Plaintiff against Defendant(s) be dismissed with prejudice.

            According to the plain language of the order, the trial court stated that Foster’s claim was not brought under the Family Code. Instead, the trial court found that his claim was governed by Chapter 14 of the Texas Civil Practice and Remedies Code and that the claim was frivolous or malicious. Accordingly, the trial court dismissed his suit. See Tex. Civ. Prac. & Rem. Code Ann. § 14.003(a)(Vernon 2002). Contrary to Foster’s contentions, the trial court did not dismiss Foster’s claim pursuant to the Family Code, nor did the trial court state that Foster’s claim was improperly filed. Accordingly, Foster’s sole issue is overruled.

Disposition

            The judgment of the trial court is affirmed.

                                                                                                     JAMES T. WORTHEN

                                                                                                                 Chief Justice

Opinion delivered September 30, 2005.

Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.

(PUBLISH)