Gerald Porter v. Lydia Serna, Galan G., Jessica M. Garcia, Lorraine Salas, Cheryl Lawson ( 2013 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-13-00177-CV
Gerald PORTER,
Appellant
v.
Lydia SERNA, Galan G., Jessica M. Garcia, Lorraine Salas, Cheryl
Lydia SERNA, Galan G., Jessica M. Garcia, Lorraine C. Salas, and Cheryl Lawson,
Appellees
From the 218th Judicial District Court, Karnes County, Texas
Trial Court No. 12-07-00162-CV
Honorable Ron Carr, Judge Presiding
Opinion by: Catherine Stone, Chief Justice
Sitting: Catherine Stone, Chief Justice
Marialyn Barnard, Justice
Patricia O. Alvarez, Justice
Delivered and Filed: December 31, 2013
AFFIRMED
This is a restricted appeal of a final judgment signed by the trial court dismissing inmate
Gerald Porter’s lawsuit as frivolous and for failure to comply with Chapter 14 of the Texas Civil
Practice and Remedies Code (“Code”). Porter presents two issues on appeal, asserting: (1) this
court has jurisdiction to consider his appeal; and (2) the trial court abused its discretion in
dismissing his lawsuit for failure to comply with Chapter 14. We affirm the trial court’s judgment.
04-13-00177-CV
BACKGROUND
On July 20, 2012, Porter filed the underlying lawsuit against five defendants who are prison
officials. Porter’s petition alleged that two of the defendants were liable for theft in failing to
return property taken from him on December 15, 2011, and the remaining defendants were liable
for failing to properly investigate his grievance relating to the theft. Porter attached two sets of
grievance forms to his petition. Both sets of forms complain about the same events.
The step 1 grievance form for grievance # 2012101814 shows that it was received on
February 13, 2012, and the written decision on step 2 was signed on May 23, 2012. Although
Porter dated his step 1 grievance form for grievance # 2012108983 on December 30, 2011, the
form shows that it was not received until February 24, 2012, and the written decision on step 2
was signed on June 21, 2012. Although Porter filed an unsworn declaration of exhaustion of
administrative remedies, he does not state the date the written decisions were received by him.
On August 22, 2012, the Attorney General filed an amicus curiae Chapter 14 Advisory,
asserting Porter’s lawsuit should be dismissed as frivolous and for failure to comply with Chapter
14’s procedural requirements because: (1) Porter failed to file an affidavit relating to previous
filings as required by section 14.004 of the Code; (2) Porter failed to file his claim before the 31st
day after the date on which he received the written decision as required by section 14.005(b) of
the Code; (3) Porter failed to state a non-frivolous or non-malicious claim as required by section
14.003 of the Code; and (4) Porter filed a false affidavit or declaration of inability to pay costs
warranting dismissal under section 14.003 of the Code. On August 29, 2012, the trial court signed
the judgment dismissing Porter’s lawsuit as frivolous and for failure to comply with Chapter 14.
After the trial court signed the judgment, Porter filed multiple additional filings, including a
response to the advisory, which were not before the trial court when it made its ruling.
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04-13-00177-CV
JURISDICTION
In response to Porter’s contention that this court has jurisdiction over this appeal, the
Attorney General’s amicus brief refers to the rules governing regular appeals. In his notice of
appeal, however, Porter expressly stated that he was filing a restricted appeal and that he did not
receive notice that the final judgment was entered until February 27, 2013. Because Porter did not
file a response before the trial court signed the judgment dismissing his lawsuit, we hold that we
have jurisdiction to consider this appeal. See TEX. R. APP. P. 30; 1 Parsons v. Dallas County, Tex.,
182 S.W.3d 451, 453-54 (Tex. App.—Dallas 2006, no pet.) (holding inmate who does not
participate in decision-making event that resulted in dismissal entitled to file restricted appeal).
DISMISSAL
We review a dismissal of an inmate’s suit that is subject to the inmate litigation
requirements of the Code for an abuse of discretion. Lilly v. Northrep, 100 S.W.3d 335, 336 (Tex.
App.—San Antonio 2002, pet. denied). A trial court abuses its discretion if it acts without
reference to any guiding rules or principles. Id.
As previously noted, the Attorney General’s advisory asserted four separate grounds on
which the trial court could dismiss the lawsuit. Porter addresses only one of those grounds in his
brief. By failing to challenge the remaining three grounds, Porter waived any issue with regard to
a dismissal on those bases, and we could affirm the trial court’s judgment for that reason. See
Norton v. Ambriz, No. 04-01-00638-CV, 2002 WL 2012627, at *1 (Tex. App.—San Antonio Sept.
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Porter filed his notice of appeal within the fifteen-day period for filing a motion for extension of time to file his
notice of appeal, and his notice of appeal stated that he did not timely receive notice of the trial court’s judgment
which is a reasonable explanation for failing to timely file his notice of appeal. See Verburgt v. Dorner, 959 S.W.2d
615, 617 (Tex. 1997) (implying motion for extension of time when appellant acting in good faith files notice of appeal
within the fifteen-day period in which appellant would be entitled to move to extend the filing deadline).
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04-13-00177-CV
4, 2002, no pet.) (not designated for publication). In the interest of justice, however, we will
address the only ground Porter raises on appeal.
Section 14.005(b) requires a trial court to dismiss a claim of an inmate that is filed more
than thirty-one days after the date the inmate received the written decision from the grievance
system. TEX. CIV. PRAC. & REM. CODE ANN. § 14.005(b) (West 2002). To enable the trial court
to determine whether dismissal under section 14.005(b) is appropriate, the inmate is required to
file an affidavit or unsworn declaration stating the date the written decision was received by the
inmate together with a copy of the written decision. Id. at § 14.005(a).
In this case, Porter’s unsworn declaration did not state the date the written decision was
received, which provided an independent basis for dismissal. See Hatcher v. TDCJ-Institutional
Div., 232 S.W.3d 921, 924-25 (Tex. App.—Texarkana 2007, pet. denied) (holding trial court did
not abuse its discretion in dismissing claim where inmate failed to file an affidavit of unsworn
declaration in compliance with section 14.005(a)); Moore v. Zeller, 153 S.W.3d 262, 264 (Tex.
App.—Beaumont 2004, pet. denied) (same). Moreover, the deadline for filing his lawsuit ran from
the date of his first-filed grievance because the filing of a second grievance relating to the same
subject matter will not extend the deadline. Hoffman v. Torres, No. 13-13-00161-CV, 2013 WL
5434679, at *2 (Tex. App.—Corpus Christi Sept. 26, 2013, no pet.) (mem. op.); Allen v. Tex. Dept.
of Crim. Justice-Institutional Div., 80 S.W.3d 681, 683 (Tex. App.—Houston [1st Dist.] 2002, pet.
denied). From the face of the record, Porter did not file his lawsuit until almost sixty days after
the date the written decision was signed on May 23, 2012. Based on the record, therefore, the trial
court did not abuse its discretion in concluding that Porter failed to file his lawsuit before thirty-
one days from the date he received the written decision. Accordingly, the trial court did not abuse
its discretion in dismissing Porter’s lawsuit.
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04-13-00177-CV
CONCLUSION
The trial court’s judgment is affirmed.
Catherine Stone, Chief Justice
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