Talbert v. Livingston

Full title: OTIS DON TALBERT, Appellant v. BRAD LIVINGSTON, RICK THALER, DAVID…

Court: STATE OF TEXAS IN THE TENTH COURT OF APPEALS

Date published: Oct 3, 2013

No. 10-12-00324-CV (Tex. App. Oct. 3, 2013)

Opinion

No. 10-12-00324-CV

2013-10-03

OTIS DON TALBERT, Appellant v. BRAD LIVINGSTON, RICK THALER, DAVID SWEETIN, G. TIMMONS AND J.T. ROBERSON, Appellee

AL SCOGGINS

From the 12th District Court

Walker County, Texas

Trial Court No. 26022

MEMORANDUM OPINION

Otis Don Talbert, an inmate currently incarcerated at the Estelle Unit, filed suit against several employees of the Texas Department of Criminal Justice Institutional Division for injuries he received when his foot became trapped in the cell door. The Office of the Attorney General filed an amicus curiae advisory recommending dismissal for failure to comply with Chapter 14 of the Civil Practice and Remedies Code. The trial court dismissed the claims with prejudice, and Talbert appeals. We affirm.

Section 14.005 of the Texas Practice and Remedies Code provides:

(a) An inmate who files a claim that is subject to the grievance system established under Section 501.008, Government Code, shall file with the court:
(1) an affidavit or unsworn declaration stating the date that the grievance was filed and the date the written decision described by Section 501.008(d), Government Code, was received by the inmate; and
(2) a copy of the written decision from the grievance system.
(b) A court shall dismiss a claim if the inmate fails to file the claim before the 31st day after the date the inmate receives the written decision from the grievance system.

TEX.CIV. PRAC. & REM. § 14.005 (a) (b) (West 2002). Talbert attached his Step 1 and Step 2 grievances to his petition. The Step 2 grievance indicates that it was received by the grievance officials on September 21, 2011, and the response was signed on October 24, 2011. The grievance form further indicates that it was returned to Talbert on November 9, 2011. Talbert filed his petition in the trial court on May 4, 2012. The petition was not filed within 31 days from the date he received the written decision from the grievance system. TEX.CIV. PRAC. & REM. § 14.005 (b) (West 2002). The trial court did not err in dismissing the claim. We overrule Talbert's third issue on appeal. Because we find that the trial court did not err in dismissing the claim, we need not address the remaining issues. TEX. R. APP. 47.1.

We affirm the trial court's judgment dismissing Talbert's claims.

AL SCOGGINS

Justice
Before Chief Justice Gray,

Justice Davis, and

Justice Scoggins
Affirmed
[CV06]