Donald Ray McCray v. Wayne Scott--Appeal from 172nd District Court of Jefferson County

In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-01-366 CV
____________________
DONALD RAY MCCRAY, Appellant
V.
WAYNE SCOTT, Appellee
On Appeal from the 172nd District Court
Jefferson County, Texas
Trial Cause No. E-164,887
MEMORANDUM OPINION

Donald Ray McCray, an inmate of the Texas Department of Criminal Justice, Institutional Division, appeals the trial court's dismissal of his lawsuit against Wayne Scott, executive director of the Texas Department of Criminal Justice ["TDCJ"]. Proceeding pro se and in forma pauperis, McCray sued Scott, seeking monetary damages and injunctive relief.

On June 19, 2001, the trial court sua sponte set the case for a hearing on July 6, 2001, to consider whether the case should be dismissed under Chapter 14 of the Texas Civil Practice and Remedies Code. The hearing was never held. On July 27, 2001, the trial court dismissed McCray's cause in its entirety, stating: "This action is dismissed without prejudice as frivolous for failure to comply with the procedural requirements of Chapter Fourteen of the Texas Civil Practice and Remedies Code. Any and all claims not previously ruled upon are hereby denied." (Emphasis added.)

The issue presented is whether the trial court abused its discretion in dismissing McCray's suit sua sponte, without holding a scheduled hearing.

"A court abuses its discretion if it acts without reference to guiding rules or principles." Thomas v. Wichita General Hosp., 952 S.W.2d 936, 939 (Tex. App.--Fort Worth 1997, writ denied). Further, holding of a hearing is discretionary. See Tex. Civ. Prac. & Rem. Code Ann. 14.003(c) (Vernon Supp. 2002).

McCray failed to file required information with the trial court. While he filed an unsworn declaration showing approximately eleven suits filed by him over various matters, with five currently pending in Jefferson County, Texas, he did not include the information required by section 14.005 of the Texas Civil Practices and Remedies Code showing that he exhausted his administrative remedies prior to filing this suit. See Tex. Civ. Prac. & Rem. Code Ann. 14.005 (Vernon Supp. 2002). Further, McCray failed to file a copy of the written decision from the grievance system with his petition, along with an affidavit or unsworn declaration stating the date the grievance was filed and the date the written decision was received by the inmate. See Tex. Civ. Prac. & Rem. Code Ann. 14.005(a) (Vernon Supp. 2002). A court shall dismiss 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) (Vernon Supp. 2002).

The trial court does not abuse its discretion in dismissing an inmate lawsuit as frivolous where the inmate has not complied with express statutory requirements. And the trial court did not abuse its discretion in not holding a hearing. A hearing is not mandatory. See Thomas, 952 S.W.2d at 938. We overrule McCray's issue, and affirm the trial court's dismissal of the suit.

PER CURIAM

Submitted on May 3, 2002

Opinion Delivered May 9, 2002

Do Not Publish

 

Before Walker, C.J., Burgess and Gaultney, JJ.