Comeaux, Arcade Joseph v. Texas Department of Criminal Justice, Institutional Division--Appeal from 12th District Court of Walker County

Reversed and Remanded Memorandum Opinion filed November 8, 2005

Reversed and Remanded Memorandum Opinion filed November 8, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-02-01283-CV

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ARCADE JOSEPH COMEAUX, JR., Appellant

V.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION, Appellee

On Appeal from the 12th Judicial District Court

Walker County, Texas

Trial Court Cause No. 21,738

M E M O R A N D U M O P I N I O N

Appellant, Arcade Comeaux, Jr., an indigent inmate of the Texas Department of Criminal Justice, Institutional Division, appeals from an order dismissing his pro se, in forma pauperis suit with prejudice under Chapter Fourteen of the Texas Civil Practice and Remedies Code.

On appeal, Comeaux contends: (1) the trial court abused its discretion because the suit did comply with Chapter Fourteen; (2) the trial court violated his constitutional rights by

dismissing the suit without a hearing to consider his claims of appellee=s retaliatory acts causing delay in perfecting this case; (3) the trial court erred by dismissing the complaint as frivolous and with prejudice; and (4) his constitutional rights were violated when the district clerk failed to provide him with timely notice of the trial court=s final judgment order. We reverse and remand.

DISCUSSION

A. Standard of Review

A trial court=s decision to dismiss a lawsuit brought by an inmate under Chapter 14 is reviewed under an abuse of discretion standard. Hickman v. Adams, 35 S.W.3d 120, 123 (Tex. App.CHouston [14th Dist.] 2000, no pet.). A trial court abuses its discretion when it acts without reference to any guiding rules or principles. Cire v. Cummings, 134 S.W.3d 835, 838B39 (Tex. 2004).

B. Chapter 14 Requirements

As an inmate proceeding in forma pauperis, Comeaux=s suit must comply with the requirements of Chapter Fourteen of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. ' 14.002(a) (Vernon 2002); Hines v. Massey, 79 S.W.3d 269, 271 (Tex. App.CBeaumont 2002, no pet.). The legislature enacted Chapter Fourteen to control the flood of frivolous lawsuits filed in Texas courts by prison inmates. McCollum v. Mt. Ararat Baptist Church, Inc., 980 S.W.2d 535, 537 (Tex. App.CHouston [14th Dist.] 1998, no pet.). Chapter Fourteen serves to deter prisoners from filing frivolous lawsuits by:

(1) requiring indigent inmates to:

(a) file an affidavit or unsworn declaration identifying and describing previous pro se suits brought by the inmate;

(b) exhaust their administrative remedies within the penal grievance system before filing a lawsuit;[1]

(c) file an affidavit or unsworn declaration stating the date the grievance was filed and the date the written grievance decision was received by the inmate;

(d) file a copy of the written decision from the grievance system;

(e) file suit within thirty-one days after the inmate receives the written decision from the grievance system; and

(2) requiring courts to dismiss noncomplying suits.

See Tex. Civ. Prac. & Rem. Code Ann. '' 14.003B.005, 14.010 (Vernon 2002); Sanders v. Palunsky, 36 S.W.3d 222, 226 (Tex. App.CHouston [14th Dist.] 2001, no pet.); Wallace v. Tex. Dep=t of Criminal JusticeBInstitutional Div., 36 S.W.3d 607, 610B11 (Tex. App.CHouston [1st Dist.] 2000, pet. denied).

With his original petition, Comeaux filed a declaration of his previous filings in compliance with section 14.004. Comeaux filed a declaration stating the dates he filed his step-one and step-two grievances and the dates he received the written decisions. Comeaux also filed copies of the written decisions from the grievance system.

C. Dismissal Improper Under Section 14.005(b)

The Attorney General contends Comeaux failed to comply with section 14.005(b) of the Texas Civil Practice and Remedies Code, which requires the trial court to Adismiss 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). Comeaux was required to file suit within thirty-one days after he received the written decision, not the date of decision. In order to enable a trial court to determine if the inmate=s suit was filed within the period required, the inmate must file an affidavit or unsworn declaration stating the date the written decision was received. See Tex. Civ. Prac. & Rem. Code Ann. '14.005(a)(1). Comeaux filed the requisite affidavit or unsworn declaration with his petition, which stated hereceived the written grievance decision on Saturday, June 29, 2002, at 6:45 p.m. Appellee did not controvert Comeaux=s contention he received the written decision on June 29, 2002. Thus, the uncontroverted evidence reflects Comeaux received the written grievance decision on June 29, 2002.

To satisfy the time requirements of 14.005(b), Comeaux was required to file suit before the 31st day after June 29, 2002, which is July 30, 2002. The Attorney General contends Comeaux filed the lawsuit on July 15, 2002, the day the trial court clerk received and stamped Comeaux=s civil petition. Comeaux=s petition may also have an earlier filing date. See Warner v. Glass, 135 S.W.3d 681, 682 (Tex. 2004) (holding a pro se inmate=s petition that is placed in a properly addressed and stamped envelope or wrapper is deemed filed at the moment prison authorities receive the document for mailing). We need not decide whether Comeaux=s petition was filed before July 15, 2002 because July 15, 2002 is within and before the thirty-one day deadline. Comeaux=s suit was filed before the 31st day after he received the written decision from the grievance system, and thus timely. Accordingly, we sustain Comeaux=s first issue on appeal.

 CONCLUSION

Because we sustain Comeaux=s first appellate issue, we reverse the trial court=s judgment and remand the cause to the trial court for further proceedings.

/s/ John S. Anderson

Justice

Judgment rendered and Memorandum Opinion filed November 8, 2005.

Panel consists of Justices Yates, Anderson, and Hudson.

[1] Comeaux filed a step-one grievance, which was denied. Comeaux filed a step-two grievance, which was also denied. The second-step grievance decision exhausted Comeaux=s administrative claims as required by the Inmate Litigation Act. See Tex. Civ. Prac. & Rem. Code Ann. '14.005(a).