Kenneth L. Hill v. Texas Department of Criminal Justice

Opinion

issued November 18, 2010

In The

Court

of Appeals

For The

First

District of Texas

————————————

NO.

01-09-00418-CV

———————————

Kenneth L. Hill, APPELLANT

v.

Texas Department of criminal justice, appellee

On

Appeal from the 412th District Court

Brazoria

County, Texas

Trial

Court Case No. 51712

MEMORANDUM OPINION

Appellant, Kenneth L. Hill, an inmate

in the Texas Department of Criminal Justice-Institutional Division (“TDCJ”),

proceeding pro se, filed an in forma pauperis civil suit against TDCJ alleging

the actions of a correction officer led to his entrapment in a cell door and

subsequent injury. Without holding a

hearing, the trial court dismissed Hill’s suit with prejudice for failing to

file his suit within 31 days of TDCJ’s denial of his second-step

grievance. On appeal, Hill challenges

the court’s dismissal of his suit.

We reverse and remand.

BACKGROUND

Hill is an inmate of the Wayne Scott

Unit of the TDCJ. He complains that in

October 2008, the actions of a correction officer led to his entrapment in a

prison cell door and subsequent injury.

After attempting informal resolution, Hill filed a first-step grievance

in November 2008. Prison authorities

denied his grievance request.

Unsatisfied with the result, Hill filed a second-step

grievance in January 2009. Prison

authorities denied his second-step grievance request on February 4, 2009,

stating that no new evidence had been presented to support his claims. Hill received the written grievance denial on

February 23, 2009.

On March 12, 2009, the trial court clerk’s office received

Hill’s petition for suit against TDCJ.

In April 2009, the trial court dismissed Hill’s suit. The court informed Hill that, “You failed to

mail the suit within 30 days of the date of the denial of your Step 2

Grievance. The Grievance was denied on

February 4, 2009, and the clerk received [notification of your suit] on March

12, 2009.” This appeal followed.

DISMISSAL UNDER SECTION 14.005(b)

Hill contends the trial court erred in

dismissing his suit.

A. Standard of Review

The Inmate Litigation Act applies to civil suits brought by

inmates who file suit in forma pauperis.

See Tex. Civ. Prac.

& Rem. Code Ann. § 14.002(a)

(Vernon 2002) (stating that chapter 14 of Texas Civil Practice and Remedies

Code “ applies to suits

brought by inmates in a court in which an affidavit or unsworn declaration of

inability to pay costs has been filed by the inmate”); Warner v. Glass , 135 S.W.3d 681, 683 (Tex. 2004). In reviewing the trial court’s decision to

dismiss a case subject to chapter 14, an appellate court applies an

abuse-of-discretion standard of review. See Williams v. Brown , 33 S.W.3d 410,

411 (Tex. App.—Houston [1st Dist.] 2000, no pet.) (applying abuse-of-discretion

standard to dismissal of inmate’s suit for failing to follow statutory

requirements of Civil Practice and Remedies Code section 14.004); see also Moreland v. Johnson , 95 S.W.3d

392 , 394–95 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (holding trial court

did not abuse discretion in dismissing suit brought under chapter 14 when

appellant did not comply with section 14.005(b)). An abuse of discretion can be found when the

trial court acts without reference to any guiding rules or principles. Jackson

v. Tex. Bd. of Pardons & Paroles , 178 S.W.3d 272, 275 (Tex. App.—Houston

[1st Dist.] 2005, orig. proceeding).

B. Applicable

Law

An inmate who files a claim that is subject to the grievance

system established under Section 501.008 of the Government Code must file with

the trial court “(1) an affidavit or unsworn declaration stating the date that

the grievance was filed and the date the written decision described by Section

501.008(d), Government Code, 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)(1),

(2) (Vernon 2002); see Tex. Gov’t Code Ann. § 501.008 (Vernon

2004). The trial court must dismiss the

suit if the inmate’s claim is subject to the grievance system and “ 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); see Mason v. Wood , 282 S.W.3d 189, 193

(Tex. App.—Beaumont 2009, no pet.).

C. Analysis

The court

dismissed Hill’s case because it found that Hill failed to file his suit in the

trial court within 31 days of February 4, 2009, the date TDCJ denied Hill’s

second-step grievance. The time for

filing suit pursuant to section 14.005(b) runs from the date the inmate

receives the written decision from the grievance system, not the date TDCJ issues

its final decision on the matter. See Tex.

Civ. Prac. & Rem. Code Ann. § 14.005(b); Mason ,

282 S.W.3d at 193 . Hill attached the

second-step grievance form, signed February 4, 2009, to his petition. Hill’s petition was filed on March 12, 2009. The petition includes a declaration that Hill

received the second-step grievance decision on February 23, 2009. [1] See Tex. Civ. Prac.

& Rem. Code Ann. § 14.005(a)(1),

(2). A date-stamp on the second-step grievance decision also shows

Hill received the decision on February 23, 2009. To satisfy the time requirements of section

14.005(b), Hill was required to file suit before the 31st day after February

23, 2009, which is March 26, 2009. The

record shows that Hill filed his petition on March 12, 2009. Because Hill filed his lawsuit before the

31st day after he received the written decision from the grievance system, it

was timely. See Mason , 282 S.W.3d at 193 (holding that appellant timely filed

petition because petition was filed within 31 days of receipt of grievance

system decision).

We sustain Hill’s sole issue on appeal.

CONCLUSION

We reverse the trial court’s judgment

and remand the cause to the trial court for further proceedings.

Sherry

Radack

Chief

Justice

Panel consists

of Chief Justice Radack and Justices Massengale and Nuchia. [2]

[1] If Hill actually

received the decision before February 23, 2009, TDCJ could establish the true

date of receipt and challenge the timely filing of the suit, but it has not

done so.

[2] The

Honorable Sam Nuchia, Senior Justice, Court of Appeals for the First District

of Texas, participating by assignment.