Opinion
No. 07-16-00108-CV
08-03-2016
IN RE TEXAS DEPARTMENT OF CRIMINAL JUSTICE, RELATOR
ORIGINAL PROCEEDING
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Relator, the Texas Department of Criminal Justice, has filed a petition for writ of mandamus asking that we compel the Honorable Ana E. Estevez, Judge of the 251st District Court of Potter County, to grant its motion to dismiss Marcus Harper's suit as frivolous. We will deny the Department's petition.
Background
According to his pleadings, in 2008 Harper was an inmate in the Department's Clements Unit in Amarillo. He was performing kitchen cleaning duties when a plastic trash can full of "boiling water" collapsed, spilling its contents onto his legs. The hot water filled his knee-high rubber boots. Harper pled that the prison building had a "make-shift spigot/tap" running "directly from the main industrial boilers" through the wall into the kitchen, subjecting inmates working in the kitchen to burns from the extremely hot water.
Harper's pleadings further relate that he was treated for his burns at the prison infirmary and shortly transported to an Amarillo hospital. He was later taken to University Medical Center in Lubbock for further treatment. He was released and returned to his unit but soon developed an infection. He was again treated at University Medical Center, where he underwent skin-graft surgery.
University Medical Center is the primary hospital of the UMC Health System and is the teaching hospital for Texas Tech Health Sciences Center in Lubbock.
After Harper's surgery, he was treated at another facility for some thirty days, then again was returned to the Clements Unit. His pleadings state he is permanently scarred and disfigured, and that his injuries hinder his abilities to work, participate in sports and perform other activities. Harper filed suit after he submitted grievances against Texas Tech and the Department.
Texas Tech and the Department filed motions to dismiss and motions for summary judgment in the trial court. The court held a hearing on the motions in October 2014. The court granted Texas Tech's motion to dismiss its employees under section 101.106(e) of the Texas Civil Practice and Remedies Code. The court also granted Texas Tech's motion to dismiss made pursuant to section 74.351(b) of the Civil Practice and Remedies Code. Harper filed an interlocutory appeal after the trial court ruled on the motions. That appeal was transferred to the Fourth District Court of Appeals, and was dismissed for lack of jurisdiction. Harper v. Tex. Tech Health Sci. Ctr., No. 04-15-00489-CV, 2015 Tex. App. LEXIS 9883 (Tex. App.—San Antonio Sept. 23, 2015, no pet.) (mem. op.).
Harper alleges suit against the Department is permitted because he sues for personal injury proximately caused by wrongful acts or omissions or negligence of Department employees acting within the scope of employment, and personal injury so caused by a condition or use of tangible personal or real property. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.021 (West 2016).
In October 2015, the Department filed a motion to dismiss pursuant to Chapter 14 of the Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. § 14.001 et seq. (West 2016). As grounds for the motion, the Department alleged Harper failed to exhaust his administrative remedies because he did not file a grievance within 15 days of the incident of which he complains and because he did not file a step 2 grievance. In January 2016, the trial court denied the Department's motion without stating a reason. It is this denial from which the Department seeks relief.
Unless otherwise indicated, further citations in this opinion to statutory provisions are to the cited section of the Civil Practice & Remedies Code.
Analysis
We will grant mandamus relief if there has been an abuse of discretion and the relator has no adequate remedy by appeal. In re Prudential Ins. Co., 148 S.W.3d 124, 135-38 (Tex. 2004). A trial court abuses its discretion when it acts arbitrarily and unreasonably, without reference to guiding rules or principles, or when it misapplies the law to the established facts of the case. Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991). "A trial court has no discretion to determine what the law is or in applying the law to the facts and, consequently, the trial court's failure to analyze or apply the law correctly is an abuse of discretion." In re American Homestar of Lancaster, Inc., 50 S.W.3d 480, 483 (Tex. 2001). However, a trial court has wide discretion in ruling on motions filed pursuant to Chapter 14. TEX. CIV. PRAC. & REM. CODE ANN. § 14.003; see Lilly v. Northrep, 100 S.W.3d 335, 337 (Tex. App.—San Antonio 2002, pet. denied) (trial court "has broad discretion under Chapter 14 to dismiss an inmate's suit if it deems the suit frivolous," citing Hickman v. Adams, 35 S.W.3d 120, 123 (Tex. App.—Houston [14th Dist.] 2000, no pet.)).
The Department's petition contends the trial court abused its discretion by denying its motion to dismiss when Harper's step 1 grievance was not filed until some 61 days after he sustained his injuries. It argues, "If the inmate has failed to comply with the requirements of section 14.005(a), the trial court must dismiss the inmate's suit." For that proposition, the Department cites section 14.010 and the opinion in Lilly, 100 S.W.3d at 336. Section 14.010, however, states only that the court "may enter an order dismissing the entire claim or a portion of the claim under this chapter," § 14.010(a) (emphasis ours), and the Lilly opinion holds merely that the trial court there did not abuse its discretion by finding the inmate claim before it to be frivolous and dismissing it. Id. at 337. Neither the statute nor the Lilly opinion provides support for a contention the law allowed the trial court no discretion in its ruling on the Department's motion to dismiss. This court and others have affirmed dismissal of suits brought by inmates who did not exhaust their Department administrative remedies. The Department has not shown, however, the trial court's ruling on this occasion so misapplied the requirements of Chapter 14 as to constitute an abuse of discretion.
The Department's Offender Orientation Handbook contains this language in its grievance procedures for inmates: "An attempt to informally resolve your problem must be made before filing a grievance. Informal resolution is defined as any attempt to solve the issue at hand and must be noted on the Step 1 grievance form (I-127). You have 15 days from the date of the alleged incident or occurrence of the issue presented in which to complete the Step 1 grievance form and forward it to the unit grievance investigator (UGI)." See Texas Dep't of Criminal Justice, Offender Orientation Handbook (rev. April 2016), available at:
http://www.tdcj.state.tx.us/documents/Offender_Orientation_Handbook_English.pdf (last visited August 1, 2016).
The Department notes it is undisputed Harper failed to submit a step 2 grievance appealing the response to his step 1 grievance. It acknowledges, however, that Harper alleges he never received a response to his step 1 grievance. For that reason, the Department states, its "argument rests instead on Harper's failure to timely file a step 1 grievance." We note also the copy of the step 1 grievance filed with the trial court contains no indication that prison grievance officers received or took action in response to the grievance.
See, e.g., Leachman v. Dretke, 261 S.W.3d 297, 311 (Tex. App.—Fort Worth 2008, no pet.) (op. on reh'g); Wallace v. Texas Dep't of Crim. Justice—Institutional Div., 36 S.W.3d 607, 611 (Tex. App.—Houston [1st Dist.] 2000, pet. denied); Thomas v. Basse, No. 07-11-0321-CV, 2013 Tex. App. LEXIS 741, at *11 (Tex. App.—Amarillo Jan. 25, 2013, no pet.) (mem. op.); Whirty v. Grimes, Nos. 07-08-0394-CV, 07-09-0111-CR, 2009 Tex. App. LEXIS 2535, at *4-5 (Tex. App.—Amarillo April 14, 2009, pet. denied) (mem. op.).
Chapter 14 does state that a court shall dismiss a claim if the inmate fails to file it before the 31st day after his receipt of the written decision described by Government Code section 501.008. TEX. CIV. PRAC. & REM. CODE ANN. § 14.005(b) (emphasis ours); but cf. Gilbert v. Tex. Dep't of Crim. Justice, No. 01-14-00795-CV, 2016 Tex. App. LEXIS 2124, at *24-25 (Tex. App.—Houston [1st Dist.] March 1, 2016, no pet.) (mem. op.); Randle v. Wilson, 26 S.W.3d 513, 516 (Tex. App.—Amarillo 2000, no pet.). As noted, however, the statutory requirement is not the basis for the Department's mandamus petition; it contends Harper's failure to file a step 1 grievance within 15 days of his injury mandated dismissal of his claim against the Department. --------
The Department contends it has no adequate remedy by appeal because the law does not provide for an interlocutory appeal under these circumstances and requiring the Department to engage in further proceedings will waste judicial resources and run counter to the policies underlying Chapter 14. See Jackson v. Texas Dep't of Crim. Justice, 28 S.W.3d 811, 813 (Tex. App.—Corpus Christi 2000, pet. denied); Hickson v. Moya, 926 S.W.2d 397, 399 (Tex. App.—Waco 1996, no pet.) (discussing purpose of Chapter 14). We agree that statute does not provide for an interlocutory appeal of the denial of a Chapter 14 motion to dismiss. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014 (West 2015) (enumerating circumstances under which interlocutory appeal is permitted). But the Department does not cite a reported instance of a grant of mandamus to require dismissal of a case under Chapter 14, and our research reveals none.
Absent extraordinary circumstances, appeal provides an adequate remedy for addressing trial court rulings such as that made here. See In re First Mercury Ins. Co., 437 S.W.3d 34, 38 (Tex. App.—Corpus Christi 2014, orig. proceeding) (citing In re Thompson, Coe, Cousins, & Irons, LLP, 212 S.W.3d 918, 920 (Tex. App.—Tyler 2007, orig. proceeding) (addressing a plea to the jurisdiction). "Extraordinary circumstances do not exist merely because failure to grant mandamus review would cause hardship to the parties." In re Sanders, No. 05-16-00332-CV, 2016 Tex. App. LEXIS 5231, at *2 (Tex. App.— Dallas May 17, 2016, orig. proceeding) (mem. op.) (citing In re Entergy Corp., 142 S.W.3d 316, 321 (Tex. 2004) (orig. proceeding)). In sum, the Department has not presented a persuasive contention it lacks an adequate remedy by appeal.
Conclusion
For these reasons, the Department's writ for petition of mandamus is denied.
James T. Campbell
Justice