Court of Appeals of Texas, Second District, Fort Worth
THE 342ND DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO.
SUDDERTH, C.J.; WALKER and KERR, JJ.
MEMORANDUM OPINION 
ELIZABETH KERR JUSTICE
Larry Joe Morgan sued Benson Varghese-a former Tarrant County
Assistant Criminal District Attorney who helped prosecute
Morgan for aggravated assault with a deadly weapon-for
various torts and penal-code violations. Varghese
successfully moved to dismiss Morgan's suit under chapter
14 of the Texas Civil Practice and Remedies Code. Morgan has
appealed, asserting that the trial court abused its
discretion by (1) dismissing his suit in violation of his
constitutional rights; (2) dismissing his suit with prejudice
without giving him the opportunity to amend; and (3) denying
his request for discovery. We will affirm.
2013, a Tarrant County jury convicted Morgan of aggravated
assault with a deadly weapon, found the enhancement paragraph
alleged in the indictment true, and assessed punishment at 20
years' confinement. Morgan v. State, No.
07-13-00136-CR, 2014 WL 2553376, at *1 (Tex. App.-Amarillo
June 4, 2014, pet. ref'd) (mem. op., not designated for
publication). Morgan's conviction was affirmed on appeal.
2016, Morgan brought this suit in civil court, suing Varghese
for damages based on violations of Texas Penal Code sections
15.01-.03, 32.42, 32.46-.48, 32.51, 37.09-.10, 37.12, 38.16,
and 39.06 and claims for fraud, collusion, conspiracy,
prosecutorial vindictiveness, tampering with or fabricating
physical evidence that is not work product, tampering with
governmental records, deceptive business records, and
altering trial records. All of Morgan's claims arise from
Varghese's actions as prosecutor in Morgan's 2013
case. He claims that Varghese tampered with evidence in his
criminal trial, altered the record to cover up the lead
prosecutor's misconduct, failed to allow Morgan to review
the record from the trial, and failed to disclose exculpatory
evidence in violation of Brady v.
Maryland. Morgan further alleges that Varghese
colluded with the lead prosecutor, Morgan's trial and
appellate counsel, and the court reporter to secure his
moved to dismiss Morgan's claims under civil practice and
remedies code section 14.003, arguing that they are frivolous
or malicious because (1) they are substantially similar to
Morgan's previous claims against the lead prosecutor,
Morgan's former criminal appellate counsel, and Tarrant
County that were dismissed as frivolous or malicious, and (2)
they have no basis in law or fact because (a) they are barred
by Heck v. Humphrey,  (b) Varghese is protected by
absolute prosecutorial immunity, and (c) limitations has
expired. See Tex. Civ. Prac. & Rem Code Ann.
§ 14.003(a)(2), (b)(2), (b)(4) (West 2017). After a
nonevidentiary hearing, the trial court granted
Varghese's motion without specifying the grounds upon
which it relied and dismissed Morgan's claims with
of Frivolous or Malicious Claims under Chapter 14
14 permits a trial court to dismiss an indigent inmate's
claim if the court finds that the claim is frivolous or
malicious. See id. §§ 14.002, .003(a)(2)
(West 2017). In making this determination, the trial court
may consider whether (1) the claim's realistic chance of
ultimate success is slight, (2) the claim has no arguable
basis in law or fact, (3) it is clear that the inmate cannot
prove facts to support the claim, or (4) the claim is
substantially similar to a previous claim filed by the inmate
because it arises from the same operative facts. Id.
as here, the trial court's order dismissing an indigent
inmate's claims does not state the grounds on which the
trial court granted dismissal, the inmate must challenge all
independent bases or grounds that support the dismissal.
See Conley v. Tex. Bd. of Criminal Justice, No.
03-08-00239-CV, 2010 WL 1632972, at *1-2 (Tex. App.-Austin
Apr. 22, 2010, no pet.) (mem. op.); see also Summers v.
State of Tex. Dep't of Criminal Justice, 256 S.W.3d
752, 755 (Tex. App.-Beaumont 2008, no pet.) ("When the
trial court's order dismissing an indigent inmate's
claims does not state the grounds on which the trial court
granted the dismissal, the inmate must show on appeal that
each of the grounds alleged in the respective motion to
dismiss is insufficient to support the trial court's
order."). If an independent ground fully supports the
complained of judgment, but the inmate assigns no error to
that independent ground, we must accept the validity of that
unchallenged independent ground and affirm the dismissal.
See Conley, 2010 WL 1632972, at *1; see also
Shirley v. Butcher, No. 06-16-00089-CV, 2017 WL 1538164,
at *2-3 (Tex. App.-Texarkana Apr. 27, 2017, pet. denied)
(mem. op.); Douglas v. Porter, No. 14-10-00055-CV,
2011 WL 1601292, at *3 (Tex. App.-Houston [14th Dist.] Apr.
26, 2011, pet. denied) (mem. op); Hall v. Treon, 39
S.W.3d 722, 724 (Tex. App.-Beaumont 2001, no pet.).
of Morgan's Claims with Prejudice
first issue, Morgan asserts that the trial court's
granting Varghese's motion violated his First, Fifth,
Sixth, Seventh, Eighth, Ninth, and Fourteenth Amendment
rights. In support, Morgan reasserts some of the same
allegations made in his petition. But even liberally
construing Morgan's arguments, Morgan has failed to
challenge any of the independent grounds on which Varghese
moved to dismiss Morgan's claims-that they are frivolous
or malicious because (1)they are substantially similar to
Morgan's previous claims arising out of the same
operative facts that have been dismissed as frivolous or
malicious and (2)they have no basis in law or fact because
they are barred by Heck, Varghese's
prosecutorial immunity, and limitations. See Tex.
Civ. Prac. & Rem. Code Ann. § 14.003(a)(2), (b)(2),
(b)(4). Because Morgan has failed to challenge any of these
independent grounds for dismissal, we must accept their
validity and affirm the trial court's dismissal. See
Shirley, 2017 WL 1538164, at *2-3; Douglas,
2011 WL 1601292, at *3; Conley, 2010 WL 1632972, at
*2; Hall, 39 S.W.3d at 724. We therefore overrule
his first issue.
second issue, Morgan contends that the trial court abused its
discretion by dismissing his claims with prejudice without
first giving him the chance to amend his petition. As Morgan
points out, a trial court's dismissal with prejudice is a
ruling on the merits and is therefore improper if the
dismissal is based on chapter 14 filing defects that the
inmate can fix.See Hughes v. Massey, 65 S.W.3d
743, 746 (Tex. App.-Beaumont 2011, no pet.) (holding trial
court erred by dismissing suit with prejudice for failure to
file trust-account statement required by civil practice and
remedies code sections 14.004(c) and 14.006(f)); Thomas
v. Knight, 52 S.W.3d 292, 295-96 (Tex. App.-Corpus
Christi 2001, pet. denied) (holding trial court erred by
dismissing suit with prejudice for failure to file an
adequate affidavit of previous lawsuits required by civil
practice and remedies code section 14.004), cert.
denied, 537 U.S. 890 (2002). See generally
Peña v. McDowell, 201 S.W.3d 665, 665-66 (Tex.
2006) (stating that dismissal with prejudice inappropriate
when an inmate's failure to comply with section 14.004
could be corrected by amended pleading); Hamilton v.
Williams, 298 S.W.3d 334, 340 (Tex. App-Fort Worth 2009)
(pet. denied) ("A dismissal with prejudice is a ruling
on the merits and is therefore improper if the trial
court's dismissal is based on procedural defects that the
inmate can remedy."). But if the claim has no arguable
basis in law, then dismissal with prejudice is appropriate.
Hamilton, 298 S.W.3d at 340. When reviewing whether
a trial court abused its ...