                                   NO. 12-14-00332-CV

                           IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                      TYLER, TEXAS

ROBERT C. MORRIS,                                §      APPEAL FROM THE 349TH
APPELLANT

V.                                               §      JUDICIAL DISTRICT COURT

SHERRI MILLIGAN, ET AL,
APPELLEES                                        §      ANDERSON COUNTY, TEXAS

                                   MEMORANDUM OPINION
       Robert C. Morris appeals the trial court’s dismissal of his suit against Appellees, Sherri
Milligan, Bryan Gordy, and Christy Hoisington. He presents four issues on appeal. We affirm.


                                          BACKGROUND
       Morris, an inmate housed in the Texas Department of Criminal Justice (TDCJ), sued
Appellees alleging they were responsible for various items of his personal property either being
taken or damaged following a lockdown.
       Appellees did not file an answer. Morris moved for a default judgment, and the trial court
granted the motion. Appellees later filed a motion to set aside the default judgment alleging that
the attorney general was not provided the notice required by section 39.001 of the Texas Civil
Practice and Remedies Code. They also filed a motion for leave to file an answer. The trial court
granted both motions. Appellees then filed a motion to dismiss Morris’s suit under Chapter 14 of
the Texas Civil Practice and Remedies Code for failure to exhaust administrative remedies.
Without holding a hearing, the trial court signed an order dismissing the suit for failure to file an
affidavit or unsworn declaration relating to previous filings. This appeal followed.
                                     RULEMAKING AUTHORITY
       In his first issue, Morris contends that the trial court erred in setting aside the default
judgment pursuant to section 39.001 of the Texas Civil Practice and Remedies Code. He contends
that the legislature lacked the authority to enact section 39.001 and, therefore, the trial court erred
in determining that section 39.001 applies.
Section 39.001 and Morris’s Argument
       Section 39.001 requires that the attorney general be given notice of a party’s intent to take
a default judgment against another party in a civil case for which Texas Civil Practice and
Remedies Code Chapter 104 authorizes representation by the attorney general. TEX. CIV. PRAC. &
REM. CODE ANN. § 39.001 (West 2008). Under Chapter 104, the attorney general must defend
state employees in lawsuits alleging damages based on certain acts or omissions by those
employees. Id. §§ 104.001 (West Supp. 2016), 104.002 (West 2011), 104.004 (West 2011). There
is no dispute that Appellees and this lawsuit fall within the parameters of Chapter 104.
       Morris concedes that he did not send the required notice. However, he argues that the
legislature relinquished all of its rulemaking power to the Texas Supreme Court in 1939.
According to Morris, the supreme court has since had exclusive rulemaking authority, which the
legislature never reclaimed. Therefore, Morris asserts, the legislature lacks the authority to enact
procedural statutes like section 39.001. We disagree.
The Legislature’s Rulemaking Authority
       Early in Texas history, it was generally recognized that the right to prescribe rules of
practice and procedure belonged to the legislature. Bar Ass’n of Dallas v. Hexter Title & Abstract
Co., 175 S.W.2d 108, 113 (Tex. Civ. App.—Fort Worth 1943), aff’d, 179 S.W.2d 946 (1944).
From time to time, however, the legislature relinquished to the supreme court the right to make
certain rules. Id. Article V, section 25 of the Texas Constitution was the first constitutional source
that gave the supreme court the power to create rules of civil procedure. Don Rogers, Texas
Constitutional Aspects of Court Rulemaking, 35-Oct Hous. Law. 24, 25 (1997); see TEX. CONST.
art. V, § 25 (1891, repealed 1985). In 1939, the Texas Legislature passed the Rules of Practice
Act, which evidenced its intent to relinquish its rulemaking power in “civil judicial proceedings”
to the supreme court. Bar Ass’n of Dallas, 175 S.W.2d at 113; see Act of May 12, 1939, 46th
Leg., R.S., ch. 25, § 1, 1939 Tex. Gen. Laws 201 (former TEX. REV. CIV. STAT. ANN. arts. 1731).
However, the legislature reserved the right to disapprove any rule that was proposed by the
supreme court. Bar Ass’n of Dallas, 175 S.W.2d at 113. In 1985, article V, section 25 was


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repealed and replaced by article V, section 31 of the Texas Constitution, which enables the
legislature to delegate rulemaking authority to the supreme court and the court of criminal appeals.
Rogers, Court Rulemaking, at 25. The Rules of Practice Act was incorporated into the Texas
Government Code as section 22.004. Id.
       Under section 31, the supreme court has the authority to create “rules of civil procedure for
all courts not inconsistent with the laws of the state.” TEX. CONST. art. V, § 31(b). And section
22.004 states that the supreme court has “full rulemaking power in the practice and procedure in
civil actions.” TEX. GOV’T CODE ANN. § 22.004(a) (West Supp. 2016). Section 22.004 further
provides that a rule adopted by the supreme court repeals all conflicting laws governing practice
and procedure in civil actions. Id. § 22.004(c). The rules and amendments promulgated by the
supreme court remain in effect “unless and until disapproved by the legislature.” Id. § 22.004(b).
       In interpreting the extent of its rulemaking power, the supreme court has determined that its
power is a limited power, subordinate to that of the legislature. Few v. Charter Oak Fire Ins. Co.,
463 S.W.2d 424, 425 (Tex. 1971); Gov’t Servs. Ins. Underwriters v. Jones, 368 S.W.2d 560, 563
(Tex. 1963). The court has also held that statutes dictating judicial procedure do not violate the
separation of powers provision of the Texas Constitution. See Gov’t Servs., 368 S.W.2d at 567.
And if a rule of civil procedure conflicts with a statute, the rule must yield to the statute unless the
rule has been passed subsequent to the statute and repeals the statute as provided in section 22.004.
Jackson v. State Office of Admin. Hearings, 351 S.W.3d 290, 298 (Tex. 2011). Consequently,
the legislature can impliedly veto a court-made rule by enacting conflicting legislation. Jack Pope
& Steve McConnico, Texas Civil Procedure Rule Making, 30 Baylor L. Rev. 5, 11 (1978).
       The Texas system of rulemaking is one of shared responsibility by both the judiciary and
the legislature. Bruce L. Dean, Rule-making in Texas: Clarifying the Judiciary’s Power to
Promulgate Rules of Civil Procedure, 20 St. Mary’s L.J. 139, 185 (1988). The legislature will
modify substantive law and direct the court to promulgate rules of civil procedure implementing
those changes. See TEX. CIV. PRAC. & REM. CODE ANN. § 26.001 (West 2015) (directing supreme
court to adopt rules to prove for fair and efficient resolution of class actions); see also TEX. GOV’T
CODE ANN. § 22.004(f), (g), (h) (requiring supreme court to adopt certain rules of civil procedure).
       Although the legislature has relinquished its rulemaking authority, it retained the power to
enact procedural statutes. Few, 463 S.W.2d at 425. These statutes do not violate the separation of
powers and reign supreme in a conflict with a rule of civil procedure. Gov’t Servs., 368 S.W.2d at



                                                   3
567; Jackson, 351 S.W.3d at 298. Therefore, the supreme court does not have exclusive authority
over procedure in the courts.
Conflict with Rule 239
         Morris also suggests that section 39.001 should not apply because it conflicts with Texas
Rule of Civil Procedure 239. Again, we disagree. Rule 239 states that a party may take a default
judgment against a nonanswering defendant at any time following the answer’s due date, as long
as the return of service has been on file the prescribed length of time. TEX. R. CIV. P. 239. Section
39.001 requires that notice of the intent to take a default judgment be sent to the attorney general
in specific circumstances. TEX. CIV. PRAC. & REM. CODE ANN. § 39.001. Rule 239 does not
contain a notice requirement, and section 39.001 does not modify the time requirements of Rule
239. Therefore, they do not conflict.
Holding
         Because the legislature retained the power to enact procedural statutes, it had the authority
to enact section 39.001. Moreover, section 39.001 does not conflict with Rule 239. Therefore, the
trial court did not err in applying section 39.001 in this case. Morris’s first issue is overruled.


                                      THE DEFAULT JUDGMENT
         In his second issue, Morris argues the trial court abused its discretion when it set aside the
default judgment because Appellees waived the attorney general’s right to notice under section
39.001.
Standard of Review and Governing Law
         We review the setting aside of a default judgment under an abuse of discretion standard.
Dir., State Emps. Workers’ Comp. Div. v. Evans, 889 S.W.2d 266, 267 (Tex. 1994). A trial court
abuses its discretion when it acts arbitrarily or unreasonably, or without reference to any guiding
rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.
1985).
         As we discussed in the preceding section, section 39.001 provides that a notice of intent to
take a default judgment against a party whom the attorney general is authorized to represent under
Texas Civil Practice and Remedies Code Chapter 104 must be mailed to the attorney general no
later than the tenth day before entry of the default judgment. TEX. CIV. PRAC. & REM. CODE ANN.
§ 39.001. Failure to comply with the notice requirement results in the setting aside of the default
judgment without costs. Id. § 39.002 (West 2008).


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Analysis
       In this case, it is undisputed that Morris did not notify the attorney general of his intent to
take a default judgment. He argues, however, that Appellees waived the attorney general’s right to
notice of his intent by failing to notify the attorney general of the lawsuit. He contends that the
attorney general’s obligation to represent Appellees does not arise unless they comply with Texas
Civil Practice and Remedies Code section 104.005. That section provides that the state is not
liable for the defense of a state employee unless the attorney general is served or notified of the
suit within ten days of the employee’s being served. TEX. CIV. PRAC. & REM. CODE § 104.005
(West 2011). According to Morris, the attorney general does not become counsel for the employee
if there is no compliance with section 104.005. And, his argument continues, if the attorney
general was not counsel for Appellees because of the lack of compliance, he should not have been
required to give notice under section 39.001.
       Nothing in section 39.001 limits its notice requirement to suits in which the attorney
general is counsel for the party against whom the default judgment is sought. See TEX. CIV. PRAC.
& REM. CODE ANN. § 39.001. It does not require the attorney general to have previously entered
an appearance or to have assumed the defense under Chapter 104. And we decline to impose
additional requirements that are not included in the language of the statute. See Liberty Mut. Ins.
Co. v. Adcock, 412 S.W.3d 492, 494 (Tex. 2013) (courts should refrain from rewriting text that
lawmakers chose).
       Because Morris failed to notify the attorney general of his intent to take a default judgment
as required by section 39.001, the trial court did not abuse its discretion in setting aside the default
judgment. See TEX. CIV. PRAC. & REM. CODE ANN. § 39.002. Morris’s second issue is overruled.


                                     VALIDITY OF CHAPTER 14
       In his third issue, Morris argues Chapter 14 was unlawfully enacted. Specifically, he
contends the legislature lacked the authority to enact Chapter 14 because it is procedural and,
therefore, it should not apply to his lawsuit. In addressing Morris’s first issue, we explained that
the legislature has the authority to enact procedural statutes. Therefore, Morris’s argument to the
contrary is without merit. Morris’s third issue is overruled.




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                                 DISMISSAL UNDER CHAPTER 14
       In his fourth issue, Morris contends the trial court abused its discretion in dismissing his
lawsuit under Chapter 14.
Standard of Review and Governing Law
       We review a dismissal under Chapter 14 for an abuse of discretion. Leachman v. Dretke,
261 S.W.3d 297, 303 (Tex. App.—Fort Worth 2008, no pet.). To determine whether the trial court
abused its discretion, we must decide whether a trial court acted without reference to any guiding
rules or principles. Id. In other words, we must determine whether the trial court acted arbitrarily
or unreasonably. Id. We must uphold the lower court’s judgment on any legal theory before it,
even if the court gives an incorrect reason for its judgment. See Guaranty Cty. Mut. Ins. Co. v.
Reyna, 709 S.W.2d 647, 648 (Tex. 1986). A court cannot abuse its discretion if it reaches the right
result. In re Estate of Hutchins, 391 S.W.3d 578, 585 (Tex. App.—Dallas 2012, no pet.).
       Inmate litigation is governed by Chapter 14 of the Texas Civil Practice and Remedies
Code. An inmate must exhaust his administrative remedies under the TDCJ grievance system
prior to filing suit. TEX. GOV’T CODE ANN. § 501.008(d) (West 2012); See TEX. CIV. PRAC. &
REM. CODE ANN. § 14.005 (West 2002). If the inmate fails to exhaust his administrative remedies,
the trial court has grounds to dismiss the suit.      See TEX. CIV. PRAC. & REM. CODE ANN.
§ 14.003(a)(2), (b)(2) (West 2002); Retzlaff v. Tex. Dep’t of Criminal Justice, 94 S.W.3d 650,
653 (Tex. App.—Houston [14th Dist.] 2002, pet. denied) (claim has no arguable basis in law or
fact if the inmate failed to exhaust administrative remedies).       An inmate must exhaust his
administrative remedies with regard to each potential defendant. Leachman, 261 S.W.3d at 311.
Analysis
       Appellees filed a motion to dismiss under Chapter 14 alleging that Morris failed to exhaust
his administrative remedies. The trial court’s dismissal order, however, states that Morris failed to
attach a declaration of previous filings to his original petition as required by section 14.004.
Appellees concede that Morris attached a declaration of previous filings that complied with section
14.004. But they urge that because Morris failed to exhaust his administrative remedies, dismissal
was proper.
       The TDCJ provides a two-step process for presenting administrative grievances.            An
inmate has fifteen days from the date of the alleged incident or occurrence of the issue presented in
which to complete the Step 1 grievance form and forward it to the unit grievance investigator.
Tex. Dep’t of Criminal Justice, Offender Orientation Handbook 74 (Sept. 2015), available at


                                                 6
http://www.tdcj.state.tx.us/documents/Offender_Orientation_Handbook_English.pdf.               If   the
inmate is not satisfied with the response to his Step 1 grievance, he may appeal by filing a Step 2
grievance. Id.
         In his Step 1 grievance, Morris complains that Milligan wrongly confiscated and destroyed
some of his property. The grievance does not mention Gordy or Hoisington. In his Step 2
grievance, Morris complains that Gordy did not address all of the claims in his Step 1 grievance.
The Step 2 grievance does not mention Milligan or Hoisington.
         To satisfy the exhaustion requirement of section 14.005, an inmate must file both a Step 1
and a Step 2 grievance against each defendant. Leachman, 261 S.W.3d at 311. In addition, every
claim that an inmate brings against a defendant must have been raised in both the Step 1 and Step
2 grievances. Id. Morris did not file a Step 2 grievance against Milligan or a Step 1 grievance
against Gordy. And he did not file any grievances against Hoisington. Therefore, Morris failed to
exhaust his administrative remedies pursuant to section 14.005. Id. The trial court did not abuse
its discretion in dismissing the lawsuit under Chapter 14. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 14.003(a)(2), (b)(2); Retzlaff, 94 S.W.3d at 653; Reyna, 709 S.W.2d at 648. Morris’s fourth
issue is overruled.


                                                    DISPOSITION
         Having overruled Morris’s four issues, we affirm the trial court’s dismissal order.

                                                                   BRIAN HOYLE
                                                                      Justice

Opinion delivered September 30, 2016.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                                    (PUBLISH)




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                                      COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                              JUDGMENT

                                           SEPTEMBER 30, 2016


                                            NO. 12-14-00332-CV


                                        ROBERT C. MORRIS,
                                              Appellant
                                                 V.
                                      SHERRI MILLIGAN, ET AL,
                                              Appellee


                                   Appeal from the 349th District Court
                            of Anderson County, Texas (Tr.Ct.No. 349-6270)

                          THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
trial court’s order.
                          It is therefore ORDERED, ADJUDGED and DECREED that the order of
dismissal of the court below be in all things affirmed, and that all costs of this appeal are
hereby adjudged against the Appellant, ROBERT C. MORRIS, for which execution may issue,
and that this decision be certified to the court below for observance.
                       Brian Hoyle, Justice.
                       Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
