Opinion
No. 04-03-00288-CV.
Delivered and Filed: October 8, 2003.
Appeal from the 38th Judicial District Court, Medina County, Texas, Trial Court No. 02-11-16259-CV, Honorable Charles Sherrill, Judge Presiding.
AFFIRMED.
Sitting: Catherine STONE, Justice, Paul W. GREEN, Justice, Karen A. ANGELINI, Justice.
MEMORANDUM OPINION
Appellant Carlton Eugene Scott, a Texas state prison inmate, filed suit against several Texas Department of Criminal Justice employees under the Texas Tort Claims Act. On March 18, 2002, the Attorney General of the State of Texas filed an Amicus Curiae Chapter 14 Motion to Dismiss, claiming that Scott's lawsuit failed to comply with Texas Civil Practices and Remedies Code § 14.005(b). The trial court granted the motion following a hearing and dismissed Scott's claims without prejudice. Scott now appeals in a single issue, complaining the trial court erred in dismissing his petition. He argues that his suit was timely filed under the Texas Civil Practices and Remedies Code.
A trial court's decision to dismiss a lawsuit brought by an inmate is reviewed under an abuse of discretion standard. Lilly v. Northrep, 100 S.W.3d 335, 336 (Tex.App.-San Antonio 2002, pet denied); McCollum v. Mt. Ararat Baptist Church, Inc., 980 S.W.2d 535, 536 (Tex.App.-Houston [14th Dist.] 1998, no pet.); Hickson v. Moya, 926 S.W.2d 397, 398 (Tex.App.-Waco 1996, no writ). We will only find that a trial court has abused its discretion when it acts without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985); Lilly, 100 S.W.3d at 336.
Chapter 14 of the Texas Civil Practices and Remedies Code applies to any suit brought by an inmate in a district, county, justice of the peace, or small claims court in which an affidavit or unsworn declaration of inability to pay costs is filed by an inmate. Tex. Civ. Prac. Rem. Code Ann. § 14.002(a)(Vernon 2002). Scott filed an affidavit of indigency to proceed in forma pauperis in state court. Thus, the provisions of chapter 14 are applicable to the case at hand, and a failure to fulfill the procedural requirements found in this chapter will result in dismissal of the inmate's action. See Id. § 14.003(Vernon 2002); Lilly, 100 S.W.3d at 336.
In order to bring suit under the Texas Tort Claims Act, an inmate must prove he has exhausted all administrative remedies within the penal grievance system before initiating a lawsuit. Wallace v. Texas Department of Criminal Justice-Institutional Division, 36 S.W.3d 607, 610 (Tex.App.-Houston [1st Dist.] 2000, pet. denied). The written decision denying Scott's step-two grievance became final on October 4, 2002.
Under Section 14.005(a), an inmate who files a claim, such as a suit under the Texas Tort Claims Act, that is subject to the grievance system must file both (1) an affidavit or unsworn declaration stating the date the grievance was filed and the date the written decision was received by the inmate, and (2) a copy of the written decision from the grievance system. Tex. Civ. Prac. Rem. Code Ann. § 14.005(a)(Vernon 2002); Lilly, 100 S.W.3d at 336; Wallace, 36 S.W.3d at 610. Additionally, the 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. Code Ann. § 14.005(b); Wallace, 36 S.W.3d at 610-11.
In his motion to dismiss, the attorney general argued that Scott failed to file his claim before the 31st day after he received the written decision. In his unsworn declaration, Scott claims to have received the written decision from the grievance system on October 19, 2002. Scott's complaint, however, was not filed with the trial court until November 21, 2002.
On appeal, Scott argues that Texas Rule of Civil Procedure 5, also known as the "mailbox rule," applies, curing the alleged filing defect. Under this rule, a document is deemed timely filed if (1) it is sent to the proper clerk, (2) by first-class United States mail, (3) in a properly addressed and stamped envelope, (4) on or before the last day for filing, and (5) is received not more than ten days tardily. Tex.R.Civ.P. 5; Tex.R.App.P. 9.2(b); Kinnard v. Carnahan, 25 S.W.3d 266, 269 (Tex.App.-San Antonio 2000, no pet.). Scott contends that, because he delivered his claim to the prison mail room on November 19, 2002, the trial court should have considered it timely filed under the mailbox rule. As proof of this assertion, Scott relies on the unsworn declaration of a mail room prison official which states: "11/19/02 said correspondence was logged and mailed out." This declaration, however, was not a part of the record in the court below and is introduced for the first time on appeal. In addition, the record contains no evidence showing the declaration to comply with each element of the mailbox rule. See Kinnard, 25 S.W.3d at 269 (decided under Texas Rule of Appellate Procedure 2 which, like Chapter 14, expressly disallows an enlargement of filing time; holding that a prison receptacle is not a mailbox for purposes of the mailbox rule, which specifically refers to a document sent via the United States Postal Service).
Moreover, Chapter 14 does not allow modification by any court rule. Section 14.014 states: [T]his chapter may not be modified or repealed by a rule adopted by the supreme court. Tex. Civ. Prac. Rem. Code Ann. § 14.014(Vernon 2002). The mailbox rule, therefore, is inapplicable.
Because Scott failed to comply with the filing deadlines prescribed in Chapter 14, we find the trial court did not abuse its discretion in granting the motion to dismiss. Scott's sole issue is overruled, and the judgment of the trial court is affirmed.