Russell E. Galer, II v. Gary L. Johnson, Director TDCJ-ID--Appeal from 87th District Court of Freestone County

IN THE

TENTH COURT OF APPEALS

No. 10-00-094-CV

RUSSELL E. GALER, II,

Appellant

v.

GARY L. JOHNSON,

DIRECTOR TDCJ-ID,

Appellee

From the 87th District Court

Freestone County, Texas

Trial Court # 00-042-B

O P I N I O N

Appellant Galer, an inmate in the Texas Department of Criminal Justice-Institutional Division in Freestone County filed pro-se in forma pauperis what he denominates as an application for appeal to this court from an order of the trial court dismissing his case.

Appellant states that he is seeking replacement cost for a typewriter and other items of personal property which he alleges were taken from him by prison officials. He further seeks punitive damages of $3,500,000.

The trial court s order of dismissal found that the claim had not been filed before the 31st day after written decision from the grievance system. Section 14.005, Tex. Civ. Prac. & Rem. Code, Grievance System Decision; Exhaustion of Administration Remedies, provides:

(a) an inmate who files a claim that is subject to the grievance system . . . shall file with the court.

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

(2) a copy of the written decision from the grievance system.

(b) a court shall dismiss a claim if the inmate fails to file the claim before the 31st day after the date the inmate received the written decision from the grievance system.

Appellant complied with none of the above, but does state in his petition that the taking of his property occurred 16 years prior to his filing of his lawsuit.

Moreover, Section 14.004, Tex. Civ. Prac. & Rem. Code, requires the inmate to file a separate affidavit or declaration identifying each prior suit brought by the inmate, specifying the operative facts, the case name, the case number, the court in which it was brought, the name of the parties and the result of the suit.

Appellant s petition was not accompanied by the affidavit or unsworn declaration required by Section 14.004, supra.

Our review of a dismissal order under Chapter 14 is controlled by the abuse of discretion standard. Abuse of discretion is determined by whether the court acted without reference to any guiding principles. Craddock v. Sunshine Bus Lines, 133 S.W.2d 136 (Tex. 1959).

The trial court did not abuse its discretion in dismissing Appellant s suit.

The order of the trial court is affirmed.

FRANK G. McDONALD

Chief Justice (Retired)

Before Chief Justice Davis,

Justice Gray, and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed May 17, 2000

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