Summary
holding that inmate could not seek judicial review of department's determination pursuant to inmate grievance system that his grievance was not timely
Summary of this case from Cox v. Texas Dep't of Criminal JusticeOpinion
No. 14-03-00480-CV
Memorandum Opinion filed May 27, 2004.
On Appeal from the 12th District Court, Walker County, Texas, Trial Court Cause No. 21,950.
Affirmed.
Panel consists of Justices EDELMAN, FROST, and GUZMAN.
MEMORANDUM OPINION
Appellant William Steed Kelley appeals the trial court's dismissal of his suit with prejudice under Chapter 14 of the Texas Civil Practice and Remedies Code. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Kelley filed suit against the State of Texas alleging waiver of sovereign immunity and entitlement to relief under the Texas Administrative Procedure Act. See TEX. GOV. CODE § 2001.171, et seq. Kelley asked the trial court to rule that certain of his Step 1 grievances were timely, contrary to the determination of the Inmate Grievance System established under section 501.008 of the Texas Government Code. After requesting and receiving an amicus curiae advisory from the Attorney General of Texas, the trial court dismissed Kelley's claim with prejudice under Chapter 14 of the Texas Civil Practice and Remedies Code. Kelley appeals, raising three issues challenging the trial court's dismissal.
II. ISSUES AND ANALYSIS
In his first issue, Kelley asserts the trial court erred in its determination that Kelley's claim is frivolous. Kelley asserts that his claim has an arguable basis in law. We disagree. Kelley does not cite, and we have not found, any statute providing for judicial review under the Administrative Procedure Act under the circumstance of this case. In fact, the Administrative Procedure Act explicitly states that it does not apply to a rule or internal procedure of the Texas Department of Criminal Justice that applies to an inmate or to an action taken under that rule or procedure. See Tex. Gov. Code § 2001.226. Kelley does not assert and the record does not indicate that he seeks judicial review of a final decision regarding his liability for destruction of state property, a circumstance in which there is a statutory provision for judicial review. See id., § 500.002; Retzlaff v. Tex. Dept. of Criminal Justice, 94 S.W.3d 650, 653-54 (Tex. App.-Houston [14th Dist.] 2002, pet. denied). Accordingly, the trial court did not err in concluding that Kelley's claim had no arguable basis in the law, and we overrule Kelley's first issue.
In his second issue, Kelley asserts that the trial court abused its discretion by not following the requirements of section 14.009 of the Texas Civil Practice and Remedies Code regarding the amicus curiae advisory from the Attorney General of Texas. See TEX. CIV. PRAC. REM CODE § 14.009. This section establishes a procedure for submission of evidence that the trial court may follow if it decides to hold a hearing under section 14.008 of the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. REM CODE §§ 14.008, 14.009. The trial court did not hold such a hearing in this case, and therefore section 14.009 does not apply. Accordingly, we overrule Kelley's second issue.
In his third issue, Kelley asserts that the trial court abused its discretion by allowing the Attorney General of Texas to act as amicus curiae because this creates a conflict of interest. We reject this argument for the same reason that we rejected it in one of Kelley's previous appeals. See Kelley v. Scott, No. 14-01-00696-CV, 2003 WL 21229275, at *1 (Tex. App.-Houston [14th Dist.] May 29, 2003, no pet.) (mem. op.). Accordingly, we overrule Kelley's third issue.
Having overruled all of Kelley's issues, we affirm the trial court's judgment.