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Click here for the full text of this decision FACTS:The appellant, Brian Parsons, challenges the trial court’s dismissal of his inmate lawsuit. The appellees, Dallas County and Sherriff Jim Bowles, filed a motion to dismiss asserting this is not an appropriate case for a restricted appeal, because appellant participated in the decision-making event that resulted in the trial court’s judgment. The appellant is an inmate of the Collin County jail. While temporarily being housed at the Dallas County jail, appellant fell when he leaned against a table in the dayroom. Appellant sued Dallas County and then Dallas County Sheriff Jim Bowles alleging, among other things, that they were negligent in allowing the table to remain in disrepair. In the trial court, appellees filed a motion to dismiss appellant’s case as frivolous pursuant to Chapter 14 of the Texas Civil Practice and Remedies. Appellant filed a motion to extend time to respond to appellee’s motion to dismiss and a motion to attend the hearing on the motion to dismiss by telephone. The trial court did not rule on appellant’s motions. Appellant did not file a response to appellee’s motion to dismiss prior to the hearing. On Oct. 18, 2004, after conducting a hearing, which appellant did not attend, the trial court concluded that appellant’s suit was frivolous and granted appellee’s motion to dismiss. Appellant filed a notice of restricted appeal on Jan. 31, 2005. Appellees filed a motion to dismiss this appeal asserting this court does not have jurisdiction. HOLDING:Denied. A restricted appeal is allowed only if 1. the notice of appeal is filed within six months after the trial court signs the judgment, 2. by a party to the suit, 3. who did not participate in the hearing that resulted in the judgment complained of and did not timely file any post-judgment motions or requests for findings of fact and conclusions of law, and 4. error is apparent on the face of the record. Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex. 2004). Although appellant did not file a response to appellee’s motion to dismiss and did not attend the hearing on the motion, appellees argue that appellant participated in the decision-making event that resulted in the judgment based on his filing of various pleadings and motions prior to the hearing. Appellees rely on Starks v. Texas Department of Criminal Justice, 153 S.W.3d 621 (Tex. App. Amarillo 2004, no pet.), but the court distinguishes Starks. In Starks, “[t]he trial court did not hold a hearing prior to dismissing appellant’s complaint as frivolous; dismissal accordingly was based on the pleadings on file at the time of the dismissal.” In this case, the decision-making event that resulted in the judgment was the hearing on appellees’ motion to dismiss. Appellant did not respond to the motion to dismiss and did not participate in the hearing. Because appellant did not participate in the decision-making event that resulted in the judgment, appellant satisfies the nonparticipation element of a restricted appeal. OPINION:Thomas, CJ; Thomas, CJ, Lang and Lang-Miers, JJ.

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