John H. Johnson v. J. Ragin, J. Ackley, D. Sutton, M. Duke, R. Jenkins Jr. , S. Hughes , M. Biscamp , B. Hutchison , A. McComb , E. Guiterrez, S. Rich , and W. Jones--Appeal from 12th District Court of Walker County

Opinion issued August 3, 2006

In The

Court of Appeals

For The

First District of Texas

NO. 01-05-00184-CV

JOHN HENRY JOHNSON, Appellant

V.

TEXAS DEPTARTMENT OF CRIMINAL JUSTICE, J. RAGAN, J. ACKLEY, W. JONES, D. SUTTON, M. BISCOMP, M. DUKE, R. JENKINS JR., S. HUGHES, B. HUTCHISON, A. MCCOMB, E. GUITERREZ, AND S. RICH, Appellee

On Appeal from the 12th District Court

Walker County, Texas

Trial Court Cause No. 22852

MEMORANDUM OPINIONAppellant, John Henry Johnson, an inmate of the Texas Department of Criminal Justice ( TDCJ ), proceeding pro se and in forma pauperis, appeals from the trial court s order granting the motion to dismiss appellees, TDCJ, J. Ragan, J. Ackley, W. Jones, D. Sutton, M. Biscamp, M. Duke, R. Jenkins Jr., S. Hughes, B. Hutchison, A. McComb, E. Guiterrez, and S. Rich. On appeal, appellant contends that (1) the trial court erred in dismissing his claim as frivolous without a hearing and (2) his claim was not barred by his failure to file his lawsuit within the specified statutory time limitations. We affirm.

BACKGROUND

Appellant is an inmate of the Estelle unit of the TDCJ. He complains that on April 10, 2004, several corrections officers confiscated his personal property because it was improperly stored. The property included postage stamps, books, writing material, a magnifying glass, audio cassettes, and legal materials for a brief that appellant was preparing for the Fifth Circuit Court of Appeals. Appellant asserts that appellees did not state why they considered the property improperly stored, and that, without notice to appellant, the personal property was destroyed after seven days due to lack of instruction on disposition from appellant.

Appellant filed a Step I grievance regarding confiscated property on May 11, 2004. Appellees answered on June 3, 2004. Unsatisfied with the result, appellant filed a Step II grievance on June 4, 2004. Appellee issued its response on August 31, 2004. On November 2, 2004, appellant filed a claim for conversion against the Director and Executive Director of the TDCJ, as well as the corrections officers involved in the confiscation. Appellant s original complaint did not include an affidavit showing grievance history, but he submitted such an affidavit on January 3, 2005. The trial court dismissed appellant s claim without a hearing.

DISCUSSION

We review a dismissal of a claim under Chapter 14 of the Texas Civil Practice and Remedies Code for an abuse of discretion by the trial court. Moreland v. Johnson, 95 S.W.3d 392, 394 (Tex. App. Houston [1st Dist.] 2002, no writ). A trial court abuses its discretion if it acts arbitrarily, capriciously, and without reference to any guiding principles or rules. Id.

A trial court can dismiss a claim that is frivolous or malicious. Tex. Civ. Prac. & Rem. Code Ann. 14.003(a)(2) (Vernon 2002). However, when the trial court dismisses an inmate case without a hearing, the issue on appeal is whether the claim had no arguable basis in law. Moreland, 95 S.W.3d at 394. Therefore, this court will review de novo the legal question of whether the trial court properly concluded that the appellant had no arguable basis in law for maintaining his suit. Id.

In his first point of error, appellant contends that the trial court abused its discretion in not granting a hearing. His argument relies on section 14.008 of the Code, which states that a trial court may use video communications equipment to conduct a hearing rather than transporting an inmate to the court. Tex. Civ. Prac. & Rem. Code Ann. 14.008 (Vernon 2002). This reliance is misplaced, as the plain language of the statute merely gives the court the option of using video equipment, but nowhere does it require a court to hold a hearing. Id. Therefore, appellant is incorrect to assert that section 14.008 requires a hearing it does not. Id. Furthermore, a hearing is not necessary when the dismissal is made as a matter of law, as in this case. Sawyer v. Tex. Dep t of Crim. Justice Institutional Div., 983 S.W.2d 310, 311 (Tex. App. Houston [1st Dist.] 1998, pet. denied).

The trial court dismissed appellant s case as a matter of law because appellant did not comply with section 14.005(b) of the Code. Appellant did not meet the requirements of that section because he did not file his claim before the 31st day after receiving the TDCJ s written response to the grievance; therefore, the court was authorized to dismiss the suit for non-compliance. Tex. Civ. Prac. & Rem. Code Ann. 14.003(b) (Vernon 2002); Moreland at 394. // A suit that is not timely filed pursuant to section 14.005(b) is barred and may be dismissed with prejudice. Tex. Civ. Prac. & Rem. Code Ann. 14.003(a) (Vernon 2002); Moreland at 394. Appellant filed suit 63 days after receiving the Step II grievance response. Thus the trial court did not abuse its discretion in dismissing appellant s suit. //

In appellant s second point of error, appellant claims that his suit was not barred by the statutory time limitations because he met all statutory requirements under section 14.005(b). Tex. Civ. Prac. & Rem. Code Ann. 14.005(b) (Vernon 2002). Appellant filed an amendment to his original complaint on January 3, 2005, asserting that he did not receive the Step II grievance response until October 1, 2004. The Step II response is dated August 31, 2004, and appellant s original complaint contends that he received the Step II notification on August 31, 2004. Thus, the assertion in the amended complaint that he did not receive notification until October 1, 2004 is a direct contradiction of appellant s original complaint. On appeal, appellant s only argument regarding the claim that he met the 31-day requirement is a reference to the January 3, 2005 amendment to his original complaint. //

Under Chapter 14 of the Texas Civil Practice and Remedies Code, the trial court may dismiss a claim if the inmate filed an affidavit or unsworn declaration required by this chapter that the inmate knew was false. Tex. Civ. Prac. & Rem. Code Ann. 14.003(a)(3) (Vernon 2002). Because the dates provided in appellant s January 3, 2005 amendment directly contradict the dates given in appellant s November 2, 2004 complaint, it is necessarily the case that one of the documents is false. Furthermore, because appellant was the individual that received the grievance response notification, and because appellant prepared both the complaint and the affidavit, appellant must have known that he gave a false date in one of the documents. Therefore, we conclude that the trial court did not abuse its discretion in dismissing this suit because one of the documents prepared by appellant was necessarily knowingly false.CONCLUSION

We affirm the judgment of the trial court.

Sam Nuchia

Justice

Panel consists of Chief Justice Radack, and Justices Taft and Nuchia.

Do not publish. See Tex. R. App. P. 47.2(b).