In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
No. 02-26-00069-CV
ERIC LAMAR ELLIS, Appellant
V.
DEPUTY CONSTABLE JOSHUA HORNSBY AND TARRANT COUNTY,
Appellees
On Appeal from the 48th District Court
Tarrant County, Texas
Trial Court No. 048-366672-25
Before Sudderth, C.J.; Womack and Walker, JJ.
Memorandum Opinion by Justice Womack
MEMORANDUM OPINION
I. INTRODUCTION
After Appellant Eric Lamar Ellis filed suit against Appellees Deputy Constable
Joshua Hornsby1 and Tarrant County for claims related to Hornsby’s execution of a
writ of possession, Appellees filed a motion to dismiss pursuant to Chapter 13 of the
Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code § 13.001.
The trial court granted the motion and dismissed the case with prejudice. In five issues,
Ellis, proceeding pro se, argues that the trial court erred by granting the motion to
dismiss because (1) the court abused its discretion by granting a Chapter 13 motion
directed at superseded pleadings, (2) the court entered dismissal without addressing the
operative pleading or providing an opportunity to be heard, (3) the court abused its
discretion by dismissing the case with prejudice without making findings or
demonstrating that it applied the Chapter 13 standard to the operative pleading, (4) the
court lacked authority to render a dismissal with prejudice as to claims and parties not
properly before it, and (5) the court entered a final dismissal while unresolved
procedural matters remained pending.2 We will affirm.
1
In the record, Hornsby is referred to at various times as “Tarrant County Deputy Constable Joshua Hornsby,” “Joshua,” “Joshua D Hornsby,” and “Hornsby.” We will refer to him as “Hornsby.”
2
As noted in Appellees’ brief, nothing in Ellis’s opening brief addresses whether the trial court erred in determining that his claims lacked a basis in law or fact. To the extent that he intended to raise them in his opening brief, they are waived as inadequately briefed. See Tex. R. App. P. 38.1(i) (“The brief must contain a clear and
2
II. BACKGROUND
In July 2025, Ellis filed his original petition against Hornsby. Along with his
petition, Ellis filed a statement of inability to afford payment of court costs. See generally
Tex. R. Civ. P. 145. As alleged in his pleadings, Hornsby traveled to Ellis’s home to
execute a writ of possession.3 When Hornsby arrived to execute the writ, Ellis was at
work, and Hornsby authorized representatives of the apartment complex to begin
removing Ellis’s property from the residence. A portion of Ellis’s property was
removed while the rest remained inside the apartment. Ellis alleged that no writ of
possession was served upon him and that no copy of the writ of possession was posted
on the door of the residence. Additionally, Ellis contended that Hornsby failed to
concise argument for the contentions made, with appropriate citations to authorities and to the record.”); see also RSL Funding, LLC v. Newsome, 569 S.W.3d 116, 126 (Tex. 2018) (“A brief must provide citations or argument and analysis for the contentions and failure to do this can result in waiver.”). In his reply brief, Ellis attempts to address some of the specific grounds raised in his pleadings and in Appellees’ motion to dismiss. However, the Texas Rules of Appellate Procedure do not allow parties to add a new issue in their reply brief that was not discussed in their original brief. Bookout v. Shelley, No. 02-22-00055-CV, 2022 WL 17173526, at *20 (Tex. App.—Fort Worth Nov. 23, 2022, no pet.) (mem. op.); see Tex. R. App. P. 38.3.
3
As detailed in Appellees’ dismissal motion, Ellis was renting an apartment and failed to comply with his lease obligations, resulting in his landlord filing a forcible detainer action and securing a writ of possession. See Ellis v. AV Brickell Pointe, Ltd., No. 02-25-00227-CV, 2025 WL 3683976, at *1 (Tex. App.—Fort Worth Dec. 18, 2025, no pet.) (mem. op.).
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execute the writ in accordance with Texas Property Code Section 24.0061(d)(2)(D)4 by
breaching his duty to supervise the removal of all of Ellis’s property from the residence.
Ellis pleaded causes of action for negligence and wrongful possession of property
against Hornsby related to his actions taken in accordance with executing the writ of
possession.
Over the next few months, Ellis amended his pleadings multiple times and added
Tarrant County as a defendant. His third amended complaint alleged a variety of causes
of action, including negligence, “wrongful possession of property/conversion of
property,” and “[v]iolation of Texas Property Code § 24.0061(d)(2)(D)” and claims
under “42 U.S.C. § 1983.”
On September 10, 2025, Ellis moved for default judgment against Appellees,
acknowledging that Appellees had filed a motion to dismiss,5 but contending that it was
“not an answer or responsive pleading.”
Two days later, Appellees filed a “Chapter 13 Motion to Dismiss.” See Tex. Civ.
Prac. & Rem. Code §13.001. Through the motion, Appellees argued that “none of
Ellis’s claims ha[d] an arguable basis in law or fact” for several reasons. First, they
argued that the Texas Tort Claims Act barred Ellis’s negligence and conversion claims.
4
“The writ of possession shall order the officer executing the writ to: . . . place, or have an authorized person place, the removed personal property outside the rental unit at a nearby location . . . .” Tex. Prop. Code § 24.0061(d)(2)(D).
5
The only motion to dismiss in the record is the one filed on September 12, 2025.
4
Second, with regard to Property Code Section 24.0061, they contended that Hornsby
was either immune from liability, not liable under an ultra vires theory of liability, or
had complied with the provision. Third, with regard to the Section 1983 claims,
Appellees claimed that there was no underlying constitutional violation, negligence
cannot support such a claim, there was no vicarious liability, and Hornsby had qualified
immunity. At the same time that the motion to dismiss was filed, Appellees filed an
answer, asserting a general denial and affirmative defenses of qualified immunity and
“an impermissible collateral attack on a judgment of another court.” Ellis filed a
response to the dismissal motion.
A non-evidentiary hearing on the motion was held in October 2025, where Ellis
appeared pro se and Appellees appeared by counsel. After argument by Ellis and
Appellees’ counsel, the trial court took the matter under advisement.
Ellis filed his fourth amended complaint on the same day but after the hearing.
The fourth amended complaint contained a new claim for relief under 42 U.S.C. § 1983
for “Failure to Implement and Enforce Body-Worn Camera Policy.”
Also after the hearing but before the trial court entered an order, Ellis filed a
“Plaintiff’s Notice of Public Record Response Confirming Absence of Body Camera
Footage” and a motion for default judgment as well as multiple motions related to the
motion for default judgment. Ellis urged that Appellees were in default for not filing
an answer to his fourth amended complaint.
5
On November 25, 2025, the trial court signed an order granting Appellee’s
Chapter 13 motion to dismiss. The trial court’s dismissal order stated:
On October 2, 2025, the Court heard the Defendants’ motion to
dismiss this case under Chapter 13 of the Texas Civil Practice and
Remedies Code. Based on the papers filed and the arguments of the
parties, the Court GRANTS the motion and hereby DISMISSES this case
WITH PREJUDICE.
After entry of the dismissal order, Ellis filed multiple motions relating to the
procedural posture of the case: Plaintiff’s Request for Clerk’s Entry of Default,
Plaintiff’s Notice Regarding Void Dismissal Order, Plaintiff’s Motion for Default
Judgment, and Plaintiff’s Motion to Vacate Void Dismissal Order and Combined
Motion for Default Judgment. In January 2026, Ellis filed his Notice of Restricted
Appeal.6
III. DISCUSSION
A. Standard of Review and Applicable Law
Section 13.001 of the Texas Civil Practice and Remedies Code allows a trial court
in which an affidavit of inability to pay has been filed to dismiss the action upon finding
6
We earlier determined, in an order denying Appellees’ “Motion to Dismiss for Lack of Jurisdiction,” that we would “continue the appeal as a regular appeal” instead of a restricted appeal because Ellis timely filed two postjudgment motions that were, in essence, motions for new trial, thereby extending the appellate timetable for a regular appeal. See Tex. R. Civ. P. 329b; Tex. R. App. P. 26.1(a); Aero at Sp. Z.O.O. v. Gartman, 469 S.W.3d 314, 316 (Tex. App.—Fort Worth 2015, no pet.) (“Any motion filed within thirty days of the trial court’s judgment that assails the judgment extends the appellate timetable for a regular appeal.”).
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either: (1) the allegation of poverty in the affidavit is false, or (2) the action is frivolous
or malicious. See Tex. Civ. Prac. & Rem. Code § 13.001(a). To determine whether an
action is frivolous or malicious, the court considers whether the claim has no arguable
basis in law or in fact.7 See Tex. Civ. Prac. & Rem. Code § 13.001(b)(2); Johnson,
796 S.W.2d at 707.
A trial court has broad discretion to determine whether to dismiss a lawsuit
pursuant to Section 13.001. Brown v. Lynaugh, 817 S.W.2d 813, 815 (Tex. App.—
Houston [1st Dist.] 1991, no writ); Thompson v. West, 804 S.W.2d 575, 576 (Tex. App.—
Houston [14th Dist.] 1991, writ denied). The purpose of Section 13.001 is “to ensure
that limited resources, both private and judicial, are employed as efficiently as possible
to resolve arguable claims and that claims without merit are dismissed at an early stage
in the proceedings.” Black v. Jackson, 82 S.W.3d 44, 53 (Tex. App.—Tyler 2002, no
writ).
We review a trial court’s dismissal under Section 13.001 for an abuse of
discretion. Livingston v. Shaffer, No. 02-22-00151-CV, 2023 WL 1860001, at *2 (Tex.
In determining whether an action is frivolous or malicious, Section 13.001 also
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provides that the trial court may consider whether “the action’s realistic chance of ultimate success is slight” or whether “it is clear that the party cannot prove a set of facts in support of the claim.” Tex. Civ. Prac. & Rem. Code § 13.001(b)(1), (3). However, the Texas Supreme Court has discouraged reliance on these grounds for dismissal. Johnson v. Lynaugh, 796 S.W.2d 705, 706–07 (Tex. 1990). Because Appellees’ motion expressly sought dismissal on the grounds that Ellis’s causes of action had no basis in law or fact, we need not address the viability of the alternate grounds for dismissal under Section 13.001.
7
App.—Fort Worth Feb. 9, 2023, no pet.) (mem. op.); Bohannan v. Tex. Bd. of Crim. Just.,
942 S.W.2d 113, 115 (Tex. App.—Austin 1997, writ denied). When analyzing whether
a claim has no arguable basis in law, we review it de novo. Read v. Verboski, 524 S.W.3d
901, 903 (Tex. App.—Fort Worth 2017, pet. denied.); Sawyer v. Tex. Dep’t of Crim. Just.,
983 S.W.2d 310, 311 (Tex. App.—Houston [1st Dist.] 1998, pet. denied). A claim has
no arguable basis in law if it relies on an indisputably meritless legal theory. Hamilton v.
Williams, 298 S.W.3d 334, 339 (Tex. App.—Fort Worth 2009, pet. denied).
B. Analysis
1. Ellis’s Argument that the Trial Court Abused Its Discretion by Granting
a Chapter 13 Motion Directed at Superseded Pleadings
In his first issue, Ellis argues that the trial court abused its discretion by granting
a Chapter 13 motion directed at superseded pleadings. Ellis contends that the order for
dismissal that was granted was related to his third amended complaint rather than his
fourth amended complaint.
Ellis states, and we agree, that an amended pleading supersedes prior pleadings
and becomes the live pleading controlling the case.8 See Tex. R. Civ. P. 65; Elliott v.
Methodist Hosp., 54 S.W.3d 789, 793 (Tex. App.—Houston [1st Dist.] 2001, pet. denied)
(op. on reh’g) (“A plaintiff’s timely filed amended pleading supersedes all previous
pleadings and becomes the controlling petition in the case regarding theories of
In their brief, Appellees agree that the fourth amended complaint was the live
8
pleading.
8
recovery.”). However, Appellees’ motion to dismiss sought dismissal of “all claims
pursuant to Chapter 13” and alleged that “[a]ll of Ellis’s claims lack any basis in law.”
And more importantly, the trial court’s order dismissing the case stated that it was
“[b]ased on the papers filed and the arguments of the parties.”
As we have stated before, “[t]he standard we follow in interpreting a trial court’s
order is well established and requires that we review an order in accordance with its
plain language and not in a fashion to produce an absurd result.” Hartwell v. Fundworks,
LLC, No. 02-23-00100-CV, 2024 WL 46053, at *3 (Tex. App.—Fort Worth Jan. 4,
2024, pet. denied) (mem. op.); see Kourosh Hemyari v. Stephens, 355 S.W.3d 623, 626
(Tex. 2011) (stating that “we enforce unambiguous orders literally”). Where an order
states that it considered all of the papers on file, it means that the trial court considered
all pleadings filed prior to the date of judgment. See Goswami v. Metro. Sav. & Loan Ass’n,
751 S.W.2d 487, 490–91 (Tex. 1988) (holding that where the trial court’s judgment
states that all pleadings on file were considered by the court and no surprise or prejudice
was shown, it is presumed that leave of court was granted and the amended petition
was properly before the court); Parker v. Robert Ryan Realtors, Inc., No. 14-10-00325-CV,
2010 WL 4226550, at *2 (Tex. App.—Houston [14th Dist.] Oct. 26, 2010, no pet.)
(mem. op.) (holding that trial court’s statement that it had “consider[ed] . . . [the
appellant’s] special appearance, the pleadings, the affidavits, and arguments of counsel”
suggested that the trial court had considered an amended special appearance—a
pleading that was on file at the time the order was signed); Retzlaff v. Tex. Dep’t of Crim.
9
Just., 135 S.W.3d 731, 737–38 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (op. on
reh’g) (holding that trial court’s judgment stating it had considered “the argument and
pleadings of the parties filed herein” meant the trial court had considered all pleadings
filed prior to the date of judgment); cf. McIntyre v. Wilson, 50 S.W.3d 674, 684 (Tex.
App.—Dallas 2001, pet. denied) (stating that the trial court did not consider a late-filed
pleading in part because the order did not recite that the trial court considered “all the
pleadings on file”). Consideration of the amended pleadings is also consistent with our
rules which “generally permit parties to freely amend their pleadings, so long as doing
so does not ‘operate as a surprise to the opposite party.’” Lake Jackson Med. Spa, Ltd. v.
Gaytan, 640 S.W.3d 830, 837 (Tex. 2022) (quoting Tex. R. Civ. P. 63). Here, Appellees
have not alleged or shown surprise. Therefore, based on the language used in the
motion to dismiss and the order granting it, the trial court’s order necessarily addressed
Ellis’s fourth amended complaint.
We overrule Ellis’s first issue.
2. Ellis’s Claim that the Trial Court Erred by Entering Dismissal Without
Addressing the Operative Pleading or Providing an Opportunity to Be
Heard
In his second issue, Ellis claims that the trial court erred by entering the dismissal
order without addressing the operative pleading or providing him with an opportunity
to be heard. He contends that after the October hearing, he amended his pleadings yet
was not given an additional hearing before the trial court granted the motion to dismiss.
With regard to the first part of this issue, we have addressed it above, holding that the
10
trial court’s order did address the operative pleading. With regard to the second part
of this issue, no hearing was required.
Chapter 13 allows a trial court to dismiss an action sua sponte either before or
after service of process, and no hearing is required. See Tex. Civ. Prac. & Rem. Code
§ 13.001(c) (“An action may be dismissed under Subsection (a) as frivolous or malicious
either before or after service of process.”); Black, 82 S.W.3d at 53 (“The court may make
its determination and dismiss the action sua sponte, either before or after service . . . but
may also consider and grant a motion to dismiss, such as the one filed in this case.”).
Texas courts have held that under Section 13.001, a plaintiff has no right to prior notice
or an opportunity to be heard before dismissal of a frivolous or malicious claim. Aguilar
v. Chastain, 923 S.W.2d 740, 745 (Tex. App.—Tyler 1996, writ denied) (“A trial court
may dismiss a frivolous in forma pauperis complaint without notice or an opportunity to
be heard.”); Timmons v. Luce, 840 S.W.2d 582, 586 (Tex. App.—Tyler 1992, no writ)
(holding that appellant’s petition was dismissed pursuant to Section 13.001 on the
determination that those claims had no arguable basis in law or fact, so no prior notice
of dismissal or opportunity to be heard was required); Bohannan 942 S.W.2d at 116 (“A
trial court may dismiss a cause sua sponte under [S]ection 13.001 even before process is
served. Therefore, Texas courts hold that 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.”
(internal citations omitted)). Therefore, Ellis was not entitled to an additional hearing
on his fourth amended complaint.
11
We overrule Ellis’s second issue.
3. Ellis’s Argument that the Trial Court Abused Its Discretion by
Dismissing the Case Without Making Findings or Demonstrating the
Chapter 13 Standard to His Operative Pleading
In his third issue, Ellis contends that the trial court abused its discretion by
dismissing the case without making findings or “demonstrating application of the
statutory standard.” Ellis argues that the trial court’s order contains no analysis
referencing the Chapter 13 standard or findings supporting dismissal and that as a result,
the record did not support dismissal. However, such findings are not required.
A trial court has broad discretion to decide whether to dismiss a lawsuit under
Section 13.001. Livingston, 2023 WL 1860001, at *2. When a case is dismissed without
a trial, the trial court is not required to submit specific findings of fact and conclusions
of law in the case. Eichelberger v. Balette, 841 S.W.2d 508, 510 (Tex. App.—Houston
[14th Dist.] 1992, writ denied) (“This case was not tried. It was dismissed without a
trial. The trial court was not required to file findings of fact and conclusions of law in
this case.”). Once the trial court finds that a party’s claims have no arguable basis in
law or fact and as a result are frivolous, it is not then required to file the findings that
led to this decision. See Timmons, 840 S.W.2d at 586 (holding that findings of fact and
conclusions of law are not required in a dismissal under Section 13.001 and stating that
a “court cannot make findings of fact solely from the record on file without hearing
evidence, and findings so made would be without effect.”). Therefore, the trial court
was not required to make findings regarding why the case was dismissed.
12
We overrule Ellis’s third issue.
4. Ellis’s Claim that the Trial Court Lacked Authority to Render Dismissal
with Prejudice as to Claims and Parties Not Properly Before It
In his fourth issue, Ellis claims that the trial court lacked the “authority” to render
a dismissal with prejudice as to claims and parties not properly before it. Ellis contends
that the clerk’s record did not demonstrate issuance of a citation to Tarrant County
after he added it as a defendant, and therefore the trial court did not have the proper
authority over each party to enter a dismissal.
However, Tarrant County did make an appearance when it filed an answer on
September 12, 2025, and again later when it appeared in open court at the motion to
dismiss hearing. An answer by a defendant constitutes an appearance by the defendant
and dispenses with the need for the issuance or service of citation upon the defendant.
See Tex. R. Civ. P. 121 (“An answer shall constitute an appearance of the defendant so
as to dispense with the necessity for the issuance or service of citation upon him.”); see
also Phillips v. Dall. Cnty. Child Protective Servs. Unit, 197 S.W.3d 862, 865 (Tex. App.—
Dallas 2006, pet. denied) (“[F]iling an answer constitutes a general appearance, thereby
dispensing with the need for the issuance and service of citation.”). Additionally, when
a party enters an appearance in open court, this has the same force and effect as a
citation issued and served upon the party. See Tex. R. Civ. P. 120 (“The defendant may,
in person, or by attorney, or by his duly authorized agent, enter an appearance in open
court.”); see also In re D.M.B., 467 S.W.3d 100, 103 (Tex. App.—San Antonio 2015, pet.
13
denied) (stating that “a party’s request for affirmative action constitutes a general
appearance because such a request recognizes a court’s jurisdiction over the parties”).
To the extent that Ellis is arguing that Appellees failed to file an answer to his fourth
amended complaint, such an answer was not required. See Tex. R. Civ. P. 92 (“When
the defendant has pleaded a general denial, such original denial shall be presumed to
extend to all matters subsequently set up by the plaintiff.”). Because both Appellees
had made appearances, the trial court had authority to enter the dismissal.
We overrule Ellis’s fourth issue.
5. Ellis’s Argument that the Trial Court Erred by Entering Final Dismissal
While Unresolved Procedural Matters Remained Pending
In his fifth issue, Ellis argues that the trial court erred by entering a final dismissal
while unresolved procedural matters remained pending. Specifically, Ellis claims that
his “Plaintiff’s Request for Clerk’s Entry of Default,” “Plaintiff’s Notice Regarding
Void Dismissal Order,” and “Plaintiff’s Motion for Default Judgment” needed to be
addressed before the trial court could enter a final dismissal with prejudice and that the
trial court abused its discretion in not referencing or resolving such motions.
A trial court’s dismissal of a plaintiff’s frivolous claims due to a lack of a legal
basis renders any of the plaintiff’s remaining motions moot. See Nabelek v. Dist. Attorney
of Harris Cnty., 290 S.W.3d 222, 232 (Tex. App.—Houston [14th Dist.] 2005, pet.
denied) (holding that dismissal of appellant’s claims as frivolous rendered appellant’s
pending motions moot); see also Johnson v. Handley, 299 S.W.3d 925, 928 (Tex. App.—
14
Dallas 2009, no pet.) (holding that by proceeding to a final disposition, the trial court
implicitly denied appellant’s motions to appear by bench warrant or alternative means).
Here, the pending motions Ellis complains about all address Appellees’ alleged default
or the failure of the trial court to consider his fourth amended complaint and are issues
that we have already resolved against him. Therefore, the trial court did not need to
address the pending motions before entering a dismissal with prejudice.
We overrule Ellis’s fifth issue.
IV. CONCLUSION
Having overruled Ellis’s five issues, we affirm the trial court’s order granting
Appellees’ motion to dismiss.
/s/ Dana Womack
Dana Womack
Justice
Delivered: September 10, 2026
15