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Click here for the full text of this decision FACTS:Dennis Powell, an inmate, filed a health-care liability claim against Leon Clements, John Allen, Glenda Adams and Ernestine Julye. Consequently, Texas Civil Practice & Remedies Code �74.351(a) required him to serve the defendants with an expert report not later than 120 days after he filed his original petition. But Powell did not meet this deadline. As a result of Powell’s failure to serve the defendants with an expert report, the trial court dismissed Powell’s suit as frivolous under Texas Civil Practice & Remedies Code �14.003(b)(1). HOLDING:Affirmed. Powell argued that the trial court erred in dismissing his suit with prejudice as frivolous. Specifically, he argued that the trial court dismissed his suit because his claim had no arguable basis in law. But, the court stated, there are four different factors the trial court may consider in determining whether a claim is frivolous under �14.003(b)(1): 1. the claim’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 facts in support of the claim; or 4. the claim is substantially similar to a previous claim filed by the inmate because the claim arises from the same operative facts. Thus, the court reviewed the trial court’s dismissal of Powell’s suit under an abuse of discretion standard. As a result of his failure to serve the defendants with an expert report, the court stated, the Civil Practice & Remedies Code obligated the trial court to dismiss his claim with prejudice. Thus, Powell lacked a realistic chance of ultimate success on his claim, the court stated. Therefore, the court found that the trial court properly dismissed Powell’s suit as frivolous under �14.003(b)(1). Powell then took issue with the trial court’s ability to dismiss his suit for the failure to file an expert report under Chapter 74. He contended that the expert-report requirement of �74.351 violates the open courts provision of the Texas Constitution, Art. I, �13. A litigant who seeks to prosecute an alleged violation of open courts provision, the court stated, must first show that he has a cognizable common law cause of action that an authority is restricting. Then, the court stated, he must demonstrate “the restriction is unreasonable or arbitrary when balanced against the purpose and basis of the statute.” The court assumed without deciding that Powell met the first prong of his open-courts challenge of the expert-report provision of Chapter 74 and examined whether Powell satisfied the second prong of the test. The court noted its prior holding in an earlier unpublished opinion that Chapter 74′s expert-report requirement is rationally related to the purpose of the statute to discourage frivolous malpractice suits and does not violate the Texas Constitution. The court stated that Powell failed to persuade it to diverge from this determination and therefore held that �74.351 does not violate the open-courts provision of the Texas Constitution. OPINION:Gray, C.J.; Gray, C.J., and Vance and Reyna, J.J.

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