Frivolous Claim - Filing An Affidavit of Inability to Pay
A trial court has broad discretion to determine whether to dismiss a suit under Texas Civil Practice & Remedies Code section 13.001. Morris v. Collins, 916 S.W.2d 527, 528 (Tex. App.-Houston [1st Dist.] 1995, no writ).
A court in which an affidavit of inability to pay under Texas Rule of Civil Procedure 145 has been filed may dismiss the action on a finding that the action is frivolous or malicious. Tex. Civ. Prac. & Rem. Code 13.001(a)(2).
In determining whether an action is frivolous or malicious, the court may consider whether:
(1) the action's realistic chance of ultimate success is slight;
(2) the claim has no arguable basis in law or in fact;
(3) it is clear that the party cannot prove a set of facts in support of the claim. Id. 13.001(b).
An action may be dismissed under Subsection (a) as frivolous or malicious either before or after service of process. Id. 13.001(c).
Therefore, the plaintiff who files an affidavit of inability to pay has no right to notice of a motion to dismiss or to an opportunity to amend. See Bohannan v. Texas Bd. of Criminal Justice, 942 S.W.2d 113, 118 (Tex. App.-Austin 1997, writ denied); Aguilar v. Chastain, 923 S.W.2d 740, 745 (Tex. App.-Tyler 1996, writ denied); Kendrick v. Lynaugh, 804 S.W.2d 153, 156 (Tex. App.-Houston [14th Dist.] 1990, no writ).