Nathiaon Eldon Dumas v. TDCJ-CID, ET AL.--Appeal from 343rd District Court of Bee County

 NUMBER 13-04-321-CV

 COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

NATHIAON ELDON DUMAS, Appellant,

v.

TDCJ-CID, Appellee.

On appeal from the 343rd District Court of Bee County, Texas.

MEMORANDUM OPINION

Before Justices Ya ez, Castillo, and Garza

  Memorandum Opinion by Justice Garza

Appellant, Nathiaon Eldon Dumas, an inmate in the Texas Department of Criminal JusticeBInstitutional Divison, proceeding pro se and in forma pauperis, filed suit against appellee for damages he allegedly sustained. Appellee moved to dismiss, arguing that appellant=s suit failed to comply with Texas Civil Practice and Remedies Code sections 14.004, 14.005, and 14.006. See Tex. Civ. Prac. & Rem. Code Ann. '' 14.004, 14.005, 14.006 (Vernon 2002). The trial court dismissed appellant=s suit as frivolous pursuant to chapter fourteen of the civil practice and remedies code. See Tex. Civ. Prac. & Rem. Code Ann. ' 14.003 (Vernon 2002). On appeal, appellant contends that the trial court erred in dismissing his suit because (1) chapter fourteen of the civil practice and remedies code does not apply to an appeal of administrative proceedings, (2) federal habeas petitions are not suits as defined by section 14.002(a), and (3) appellant complied with sections 14.005(a)(1) and (2) and 14.006(f). We affirm the decision of the trial court.

We review a trial court's dismissal of an inmate's lawsuit in forma pauperis under an abuse of discretion standard. Thomas v. Knight, 52 S.W.3d 292, 294 (Tex. App.BCorpus Christi 2001, pet. denied). A court abuses its discretion if it acts without reference to guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985); Knight, 52 S.W.3d at 294-95. Where the trial court has not specified the grounds for dismissal in its order, the order will be affirmed if any of the theories advanced in the motion to dismiss supports the dismissal. Walker v. Gonzales County Sherrif=s Dep=t., 35 S.W.3d 157, 162 (Tex. App.BCorpus Christi 2000, pet. denied); Roberts v. Padre Island Brewing Co., Inc., 28 S.W.3d 618, 620 (Tex. App.BCorpus Christi 2000, pet. denied).

Appellant=s first issue contends that chapter fourteen does not apply to him because it only applies to lawsuits and not to an appeal of an administrative proceeding. We disagree. See Warner v. Glass, 135 S.W.3d 681, 683 (Tex. 2004) (applying chapter fourteen to appellant prisoner=s suit pursuant to adverse administrative proceeding). Chapter fourteen of the civil practice and remedies code governs suits brought by an inmate in which the inmate has filed an affidavit or unsworn declaration of inability to pay costs. Tex. Civ. Prac. & Rem Code Ann. ' 14.002 (Vernon 2002). It is undisputed that appellant is an inmate, and that he was proceeding pro se and in forma pauperis; therefore, he is subject to the provisions of chapter fourteen of the civil practice and remedies code.

Appellee argued in its motion to dismiss that appellant failed to comply with section 14.005 and that this failure made it impossible to determine whether he timely filed his lawsuit. Tex. Civ. Prac. & Rem Code Ann. ' 14.005 (Vernon 2002). Compliance with section 14.005 of the civil practice and remedies code is a prerequisite to judicial review of inmate claims. Retzlaff v. Tex. Dep't of Criminal Justice, 94 S.W.3d 650, 652 (Tex. App.BHouston [14th Dist.] 2002, pet. denied); see also Tex. Civ. Prac. Rem. Code Ann. ' 14.005. Section 14.005 provides a procedural mechanism by which a trial court can ensure that an inmate proceeding in forma pauperis has complied with the grievance process before filing a claim in state court. Smith v. Tex. Dep't of Criminal Justice Inst. Div., 33 S.W.3d 338, 341 (Tex. App.BTexarkana 2000, pet. denied). Section 14.005(b) states that "[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). A suit that is not timely filed pursuant to section 14.005(b) is barred and may be dismissed with prejudice. Moreland v. Johnson, 95 S.W.3d 392, 395 (Tex. App.BHouston [1st Dist.] 2002, no pet.).

The record reflects that appellant=s grievance was denied on April 8, 2003; however, in his affidavit, appellant states that he received notification of the decision on April 18, 2003. This contention is undisputed.[1] Appellant was required to file his petition in the trial court 31 days later, or by May 19, 2003. The record reflects that appellant=s petition was filed on June 3, 2003, forty-six days after receiving notification of the decision. Consequently, the suit was not timely filed.[2] The trial court therefore properly dismissed it. We overrule appellant=s issue and do not address his remaining issues. See Tex. R. App. P. 47.1

The judgment of the trial court is affirmed.

_______________________

DORI CONTRERAS GARZA,

Justice

Memorandum Opinion delivered and

filed this the 28th day of July, 2005.

[1] Because it is undisputed that appellant received notice of the decision on April 18, 2003, we will calculate the 31 days as of that date.

[2] Ordinarily, because he is a pro se inmate, appellant would be entitled to have his pleading deemed filed as of the date he placed the pleading in the custody of prison authorities for mailing. See v. Glass, 135 S.W.3d 681, 684 (Tex. 2004). However, there is no evidence in the record to allow us to determine when appellant first tendered his petition to prison authorities for mailing or by what means appellant delivered his petition to the district clerk. As such we cannot determine from the record whether by virtue of the mailbox rule or the rule in Warner, the documents would be deemed filed at an earlier date. Id.; see Coastal Banc SSB v. Helle, 988 S.W.2d 214, 216 (Tex. 1999) (explaining that when a dispute arises as to the filing date of a document, the date the instrument is tendered to the clerk controls, even over the file-stamp mark on the document).