Donald Readeaux 786468 v. Trina Velasquez ( 2013 )


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  •                                    NUMBER 13-13-00217-CV
    COURT OF APPEALS
    THIRTEENTH DISTRICT OF TEXAS
    CORPUS CHRISTI – EDINBURG
    DAVID READEAUX #786468,                                                                      Appellant,
    v.
    TRINA VELASQUEZ, ET.AL.,                                                                     Appellees.
    On appeal from the 343rd District Court
    of Bee County, Texas.
    MEMORANDUM OPINION
    Before Justices Rodriguez, Benavides and Longoria
    Memorandum Opinion by Justice Longoria
    By one issue, appellant Donald Readeaux, 1 an inmate proceeding pro se,
    appeals the trial court’s dismissal of his suit against appellees Trina Vasquez and
    1
    The trial court’s dismissal order and the State’s amicus curiae brief refers to appellant as
    “Readeauz” but appellant’s hand-written notice of appeal refers to him as “Readeaux.” Because the
    difference is not germane to the disposition of this appeal, for the sake of clarity we will refer to appellant
    as “Readeaux.”
    Correctional Officer Kennedy2 for frivolousness and for failure to comply with Chapter
    14 of the Texas Civil Practice and Remedies Code. See generally TEX. CIV. PRAC. &
    REM. CODE ANN. §§ 14.001–.014 (West 2002). We affirm.
    I. BACKGROUND
    Appellant is an inmate in the Texas Department of Criminal Justice unit in
    Beeville, Texas.        Appellant filed suit for a declaratory judgment that appellees had
    stolen his radio. The trial court requested and received an amicus curiae brief from the
    Office of the Texas Attorney General.                 See 
    id. § 14.009.
             The Attorney General
    recommended that appellant’s lawsuit be dismissed on multiple grounds. The trial court
    entered an order dismissing appellant’s lawsuit as “frivolous and for failing to comply
    with Chapter 14 of the Texas Civil Practice and Remedies Code.” See 
    id. §§ 14.001–
    .009. This appeal followed.3
    II. ANALYSIS
    1. Standard of Review and Applicable Law
    Litigation by inmates “in which the inmate files an affidavit or unsworn declaration
    of inability to pay costs is governed by special procedural rules set out in chapter
    fourteen of the civil practice and remedies code.” Thomas v. Knight, 
    52 S.W.3d 292
    ,
    294 (Tex. App.—Corpus Christi 2003, pet. denied); see TEX. CIV. PRAC. & REM. CODE
    ANN. § 14.001. We review a dismissal of an inmate lawsuit brought under chapter 14
    for abuse of discretion. Thomas, 52 S.W.3d. at 294. “To establish abuse of discretion,
    2
    Appellant stated in his Original Petition that he never learned Officer Kennedy’s first name.
    3
    The Attorney General again filed an amicus curiae brief in this Court recommending that we
    affirm the trial court’s order.
    2
    the complaining party must show that the trial court’s action was arbitrary or
    unreasonable in light of all of the circumstances of the case.” 
    Id. Inmates must
    receive a decision from the “highest authority” in the prison
    grievance system before filing a claim in state court.             TEX. GOV’T CODE ANN.
    § 501.008(d) (West 2004). Further, an inmate must file a claim in state court “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). “A suit that is not timely filed
    pursuant to Section 14.005(b) is barred and may be dismissed with prejudice.” Simmon
    v. Harrison, 
    387 S.W.3d 812
    , 814–15 (Tex. App.—Eastland 2012, pet. filed) (citing
    Moreland v. Johnson, 
    95 S.W.3d 397
    , 395 (Tex. App.—Houston [1st Dist.] 2002, no
    pet.)).
    2. Discussion
    In his sole issue, appellant complains that the trial court erred in dismissing his
    lawsuit because it did not permit him to remedy his noncompliance with chapter 14.
    Appellant attached a copy of both his Step One and Step Two Grievance Response
    Forms to his original petition.      The Step Two Form is dated as being returned to
    appellant on July 28, 2012. According to the provisions of section 14.005(b), appellant’s
    deadline to file suit was therefore August 27, 2012. See TEX. CIV. PRAC. & REM. CODE
    ANN. § 14.005(b). Appellant’s original petition was filed on October 1, 2012, sixty-four
    days after the deadline. If an inmate fails to comply with deadlines in section 14.005(b),
    the trial court “has no discretion but to dismiss the lawsuit.”       Lewis v. Johnson, 
    97 S.W.3d 885
    , 888 (Tex. App.—Corpus Christi 2003, no pet.). Because the chapter 14
    defect in appellant’s lawsuit could not be remedied, we conclude that the court did not
    3
    abuse its discretion in dismissing appellant’s lawsuit. See id.; see also 
    Simmon, 387 S.W.3d at 814
    –15; 
    Moreland, 95 S.W.3d at 395
    .
    We overrule appellant’s sole issue.
    III. CONCLUSION
    We affirm the order of the trial court.
    _______________________
    NORA L. LONGORIA
    Justice
    Delivered and filed the
    15th day of August, 2013.
    4
    

Document Info

Docket Number: 13-13-00217-CV

Filed Date: 8/15/2013

Precedential Status: Precedential

Modified Date: 10/16/2015