Opinion
No. 04-03-00648-CV.
Delivered and Filed: March 3, 2004.
Appeal from the 38th Judicial District Court, Medina County, Texas, Trial Court No. 03-03-16358-CV, Honorable Charles Sherrill, Judge Presiding.
Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Karen ANGELINI, Justice, Sandee Bryan MARION, Justice.
MEMORANDUM OPINION
Edwin Horton Witherspoon ("Witherspoon") appeals an order dismissing, as frivolous, his complaint against Gary L. Johnson, Janie Cockrell, Robert Parker, Danny Horton, George L. Stephenson, Larry D. Hall, Stephen Duffy, Thomas Smith, Clinton Christian, and Brenda Hughes, who are all employees of the Texas Department of Criminal Justice (collectively referred to as "TDCJ Employees"). We affirm the trial court's order.
We review a dismissal with prejudice of an inmate's claim pursuant to Chapter 14 under an abuse of discretion standard. Hickman v. Adams, 35 S.W.3d 120, 123 (Tex. App.-Houston [14th Dist.] 2000, no pet.). A trial court abuses its discretion if it dismisses a claim without regard to guidelines, principles, or rules. Id. In this case, the trial court did not abuse its discretion in dismissing Witherspoon's claim because the claim failed to meet the following requirements of Chapter 14.
1. Section 14.004 requires an inmate to file an affidavit identifying each suit previously brought by the person, and the affidavit must include: (1) sufficient operative facts on the relief sought in the prior cases and the basis of his claims to enable the trial court to determine if the claims asserted in the underlying lawsuit arose from the same operative facts; (2) the case name, cause number, and the court in which the suit was brought, (3) the name of each party to the suit; and (4) the result of the suit. Tex. Civ. Prac. Rem. Code Ann. § 14.004 (Vernon 2002); Obadele v. Johnson, 60 S.W.3d 345, 348 (Tex. App.-Houston [14th Dist.] 2001, no pet.).
The advisory to the trial court filed by the Office of the Attorney General ("OAG") indicates its belief that Witherspoon did not list all of the suits he previously filed but only listed those suits which related to the underlying suit since Witherspoon's affidavit is entitled "Unsworn Motion of Relating [sic] Filings." Even assuming that the OAG is mistaken in its belief, Witherspoon's affidavit did not include all of the required information with regard to the two suits he listed. In his brief Witherspoon contends that his affidavit should be construed liberally; however, Chapter 14 was enacted by the Texas Legislature to control the flood of frivolous lawsuits being filed by inmates, and a trial court does not abuse its discretion in dismissing a claim when an inmate fails to include all of the required information.
2. Section 14.005(a) requires an inmate to exhaust his administrative remedies before filing suit and provide an affidavit stating that the grievance was filed and the date of the written decision. Tex. Civ. Prac. Rem. Code Ann. § 14.005(a)(1) (Vernon 2002). In addition, the inmate must provide a copy of the written decision from the grievance system. Tex. Civ. Prac. Rem. Code Ann. § 14.005(a)(2) (Vernon 2002). Witherspoon only filed an affidavit regarding grievance number 2003042176; however, this grievance did not include all of the parties named as defendants in the lawsuit, and Witherspoon's petition sought the expungement of disciplinary case #20030040307.
3. Section 14.005(b) requires a court to dismiss an inmate's 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. Code Ann. § 14.005(b) (Vernon 2002). In his unsworn declaration, Witherspoon states that he received the written decision in grievance number 2003042176 on January 20, 2003. The 31st day after January 20, 2003, was February 20, 2003. Witherspoon's claim was not filed until March 4, 2003. In his brief, Witherspoon contends that he mailed his petition on February 12, 2003, and the latest possible date the clerk would have received the petition was February 17, 2003. Witherspoon claims that he should not be penalized for the clerk's error in failing to timely file the document. Rule 5 of the Texas Rules of Civil Procedure deems a document timely filed if the envelope is stamped and deposited in the mail on or before the last day for filing same and if received by the clerk not more than ten days tardily. Tex. R. Civ. P. 5. (Emphasis added). Because Witherspoon's petition was received by the clerk more than ten days tardily, Witherspoon's claim was not filed before the 31st day after he received the written decision from the grievance system.
The trial court's order is affirmed.