                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-13-00250-CV


MICHAEL E. GEIGER                                                 APPELLANT

                                      V.

ERIC MILBURN, SHERILYN                                             APPELLEES
TRENT, TAMMI MESSIMER, EDDIE
WILLIAMS, EMILIO BARRENTES,
DAVID GREEN, KAREN ANISTON,
JOHN RUPERT, AND MAJOR
HARRIS III


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         FROM THE 78TH DISTRICT COURT OF WICHITA COUNTY

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                       MEMORANDUM OPINION1

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                               I. INTRODUCTION

     In four points, Appellant Michael E. Geiger, an inmate in the Coffield Unit

of the Texas Department of Criminal Justice (TDCJ) who is proceeding pro se

     1
      See Tex. R. App. P. 47.4.
and in forma pauperis, appeals the trial court’s dismissal of his suit against

Appellees, who are employees of the TDCJ and work at various prison units. We

will affirm.

                           II. PROCEDURAL BACKGROUND

       Geiger filed multiple grievances in the prison grievance system alleging

that prison employees had confiscated his “freeworld clothes” and his Fila tennis

shoes. After exhausting his remedies in the prison grievance system, Geiger

filed suit against Appellees Eric Milburn, Sherilyn Trent, Tammi Messimer, Eddie

Williams, Emilio Barrentes, David Green, Karen Aniston, John Rupert, and Major

Harris III, alleging claims for violating his right to privacy, converting his personal

property, violating his right to due process, and committing fraud against him.

Geiger requested actual and punitive damages, as well as injunctive relief.

       Appellees Williams, Green, Aniston, and Harris were not served with

citation and did not answer.      The remaining Appellees answered and filed a

motion to dismiss pursuant to chapter 14 of the Texas Civil Practice and

Remedies Code.       The trial court, without conducting a hearing, dismissed

Geiger’s entire suit as frivolous and for failure to comply with chapter 14. This

appeal followed.

                           III. JURISDICTION OVER APPEAL

       As an initial matter, Appellees argue in their brief that this court lacks

jurisdiction over Geiger’s appeal because he did not timely perfect his appeal.



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Appellees argue that Geiger’s notice of appeal was filed more than thirty days

after the final judgment was signed.

      The time for filing a notice of appeal is jurisdictional in this court, and

absent a timely-filed notice of appeal or extension request, we must dismiss the

appeal. See Tex. R. App. P. 2, 25.1(b), 26.3; Jones v. City of Houston, 976

S.W.2d 676, 677 (Tex. 1998); Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex.

1997). A motion for extension of time is necessarily implied when an appellant

acting in good faith files a notice of appeal beyond the time allowed by rule 26.1

but within the fifteen-day period in which appellant would be entitled to move to

extend the filing deadline under rule 26.3. See Jones, 976 S.W.2d at 677;

Verburgt, 959 S.W.2d at 617; see also Tex. R. App. P. 26.1, 26.3. However,

when a motion for extension is implied, it is still necessary for the appellant to

reasonably explain the need for an extension. See Jones, 976 S.W.2d at 677;

Verburgt, 959 S.W.2d at 617.

      The trial court signed the final judgment on June 4, 2013. Because Geiger

did not file a post-judgment motion listed in rule 26.1(a), his notice of appeal was

due July 5, 2013. See Tex. R. App. P. 26.1(a). On July 22, 2013, seventeen

days after the notice of appeal was due, Geiger filed his notice of appeal and

explained within his notice of appeal that he did not receive notice of the final

judgment until June 30, 2013.      Although it would appear at first glance that

Geiger’s notice of appeal and explanation for the extension of time to file his

notice of appeal were untimely filed because they were filed seventeen days after

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the notice of appeal was due, the fifteen-day period to extend the deadline under

rule 26.3 fell on a Saturday, and Geiger filed his notice of appeal and explanation

for the extension on the following Monday. See Tex. R. App. P. 4.1(a), 26.3. We

therefore hold that Geiger timely filed his notice of appeal and reasonable

explanation for the extension of time to file his notice of appeal, and thus we

have jurisdiction over his appeal.

                          IV. DISMISSAL OF GEIGER’S SUIT

      In four points, Geiger challenges the dismissal of his suit against

Appellees.2

                    A. Standard of Review Under Chapter 14

      An inmate action in which an affidavit of inability to pay costs is filed is

governed by chapter 14 of the Texas Civil Practice and Remedies Code. Tex.

Civ. Prac. & Rem. Code Ann. § 14.002(a) (West Supp. 2013). A chapter 14

dismissal is reviewed for an abuse of discretion. Brewer v. Simental, 268 S.W.3d

      2
       Geiger’s four points as set forth in his brief are as follows:

           [D]id the trial court abuse it[]s discretion and violate due process by
            it[]s dis[]missal without resolving all issues of [f]act[]?
           [D]id the trial court violate access to court by denying appellant
            timely notice, copy, and right to refute/object or confront the intent to
            dismiss based on the motion recommendation of defe[]ndan[t]
            (defendant’s[)] motion/answer to allegations against them[]?
           [D]id [the] trial court violate appellant’s right to trial by holding a trial
            by judge without written consent from each party and after each
            party has timely made th[ei]r request for jury trial[?]
           [D]id the trial court have discretion to dismiss where it[]s theory of
            law is not supported by evidence and the court did not resolve every
            issue raised in the complaint and evidence[?]

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763, 767 (Tex. App.—Waco 2008, no pet.). If, as in this case, the trial court

dismisses a claim without conducting an evidentiary hearing, we are limited to

reviewing whether the claim had an arguable basis in law. Smith v. Tex. Dep’t of

Crim. Justice-Institutional Div., 33 S.W.3d 338, 340 (Tex. App.—Texarkana 2000,

pet. denied). A claim does not have an arguable basis in law if the claim is

based on a meritless legal theory or if the inmate failed to exhaust his

administrative remedies.    Hamilton v. Williams, 298 S.W.3d 334, 339 (Tex.

App.—Fort Worth 2009, pet. denied). A decision to dismiss will be affirmed if it is

proper under any legal theory. Johnson v. Lynaugh, 796 S.W.2d 705, 706–07

(Tex. 1990).

                 B. Procedural Requirements of Chapter 14

      An inmate proceeding pro se and in forma pauperis must comply with the

procedural requirements of chapter 14.        Tex. Civ. Prac. & Rem. Code Ann.

§ 14.002. Texas Civil Practice and Remedies Code section 14.005 requires an

inmate who files a claim that is subject to the grievance system to file with the

trial 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. Id. § 14.005(a)

(West 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.” Id. § 14.005(b).



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      C. Dismissal Was Proper For Failure to Comply with Procedural
                             Requirements

      The record reveals that Geiger attached to his petition copies of the written

grievances that he had filed in the prison grievance system. The record does

not, however, contain an affidavit or unsworn declaration from Geiger stating the

date that he received the written decision on his grievances. The record reveals

that Geiger filed his last Step 2 grievance on December 30, 2011, and that it was

decided on February 29, 2012. In the absence of any complaint or indication

from Geiger that he did not receive the decision in a timely manner, it is

reasonable for the trial court to have concluded that over thirty-one days had

elapsed between the date that Geiger had received the decision on February 29,

2012, and April 8, 2013, when he filed his petition against Appellees. Because

Geiger failed to timely file his lawsuit within the time frame outlined in section

14.005(b), the trial court was required to dismiss Geiger’s lawsuit. See id. We

hold that the trial court did not abuse its discretion by dismissing Geiger’s suit for

failing to comply with the requirements of chapter 14.005. See id. § 14.005(a),

(b); Hatcher v. TDCJ-Institutional Div., 232 S.W.3d 921, 925 (Tex. App.—

Texarkana 2007, pet. denied) (holding that trial court did not abuse its discretion

by dismissing inmate’s suit for statutory noncompliance because inmate failed to

provide an adequate affidavit under section 14.005); Wolf v. Tex. Dep’t of

Criminal Justice, Institutional Div., 182 S.W.3d 449, 451 (Tex. App.—Texarkana

2006, pet. denied) (holding that trial court did not abuse its discretion by


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dismissing inmate’s suit for failure to comply with the requirements of section

14.005).

                 D. Disposition of Geiger’s Points on Appeal

      Because the trial court’s dismissal was proper based on matter-of-law

grounds—Geiger’s failure to comply with statutory requisites, the trial court was

not required to resolve any fact issues or to address the merits of Geiger’s

claims. We overrule the portion of Geiger’s first point arguing that the trial court

abused its discretion and violated his right to due process by dismissing his suit

without resolving all fact issues and the portion of his fourth point arguing that the

trial court abused its discretion by dismissing his suit because its “theory of law is

not supported by evidence” and because the court “did not resolve every issue

raised in the complaint.”3

      Geiger also argues in his fourth point that dismissal with prejudice is

improper when an inmate’s error can be remedied. Here, the final judgment

does not state whether Geiger’s claims are dismissed with or without prejudice.

See Martin v. State, No. 01-03-01224-CV, 2005 WL 729480, at *3 (Tex. App.—

Houston [1st Dist.] Mar. 31, 2005, no pet.) (mem. op.) (stating in chapter 14 case

      3
        Geiger also argues in his fourth point that there was no motion to dismiss.
The record, however, reveals that a copy of Appellees’ motion to dismiss was
sent to Geiger, and he referenced the motion to dismiss in the motion for
injunction that he filed on June 10, 2013. To the extent that Geiger’s fourth point
can be read to argue that he did not receive a copy of the final judgment in a
timely manner, we have held above that he was not harmed; his notice of appeal
and explanation for the extension of time to file his notice of appeal were timely
filed.

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that if order of dismissal does not state whether the case was dismissed with or

without prejudice, it is presumed the case was dismissed without prejudice).

However, even if the trial court had dismissed Geiger’s suit with prejudice, he

could not have amended his pleadings to remedy the untimely filing of his

petition. We overrule this portion of Geiger’s fourth point.

      Geiger contends in the remainder of his first and fourth points and in his

second and third points that the trial court failed to conduct a hearing on his

lawsuit prior to dismissal. Section 14.008 provides that the court may hold a

hearing. Tex. Civ. Prac. & Rem. Code Ann. § 14.008 (West 2002). A hearing is

not necessary when the dismissal is made as a matter of law rather than fact.

See Smith, 33 S.W.3d at 340. Here, the dismissal was proper on matter-of-law

grounds because Geiger did not comply with statutory requisites.     A hearing

would not change the fact that Geiger filed his petition approximately one year

late. Because Geiger did not fulfill the statutory procedural requirements, his

claims had no basis in law, and thus no hearing was required. We hold that the

trial court did not abuse its discretion by not holding a hearing on Appellees’

motion to dismiss. See Tex. Civ. Prac. & Rem. Code Ann. § 14.008; Riddle v.

TDCJ-ID, No. 13-05-00054-CV, 2006 WL 328127, at *2 (Tex. App.—Corpus

Christi Feb. 9, 2006, pet. denied) (mem. op.) (holding that trial court did not

abuse its discretion by not convening a hearing because inmate did not fulfill

statutory requirements under section 14.005); see also Addicks v. Rupert, No.

12-09-00288-CV, 2011 WL 1642862, at *4 (Tex. App.—Tyler Apr. 29, 2011, no

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pet.) (mem. op.) (stating that Texas courts have held that a hearing is not

required when inmate has failed to exhaust administrative remedies or, in other

words, when inmate has failed to comply with section 14.005 of the civil practice

and remedies code).

      Geiger also argues in his third point that he was denied his right to trial by

jury. The right to a jury trial is not an absolute right in civil cases but is subject to

certain procedural rules. Schorp v. Baptist Mem’l Health Sys., 5 S.W.3d 727,

738 (Tex. App.—San Antonio 1999, no pet.).                 Chapter 14 imposes the

requirement to file suit before the thirty-first day after the date the inmate

receives the written decision from the grievance system, and the failure to meet

that procedural requirement allows the trial court to dismiss the case. Tex. Civ.

Prac. & Rem. Code Ann. § 14.005(a), (b). This dismissal is not based on the

merits but merely operates to dismiss the case on a procedural requirement that

is directly related to the statute’s purpose of limiting the number of frivolous

lawsuits. Geiger’s suit did not proceed to a jury trial or to a disposition on the

merits, because of his failure to fulfill a procedural requirement; we hold that

Geiger’s right to a jury trial was not violated. Cf. Schorp, 5 S.W.3d 738 (holding

that right to jury trial was not violated when litigant’s intentional failure to fulfill a

procedure requirement resulted in dismissal of her case under former statute

relating to frivolous lawsuits involving medical malpractice).          Moreover, with

regard to Geiger’s complaint in his second point that the trial court violated his

constitutional right to access the courts by dismissing his lawsuit, we hold that

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chapter 14 does not violate the constitutional right of access to the courts. See

Sanders v. Palunsky, 36 S.W.3d 222, 226–27 (Tex. App.—Houston [14th Dist.]

2001, no pet.) (holding that reasonable restrictions, such as the thirty-one day

deadline in section 14.005(b), on the ability of pro se inmates to proceed in forma

pauperis do not constitute a denial of the constitutional right of access to the

courts).

      We therefore overrule Geiger’s second and third points and the remainder

of his first and fourth points.

                                  V. CONCLUSION

      Having overruled all four of Geiger’s points, we affirm the trial court’s

judgment.

                                                   PER CURIAM

PANEL: WALKER, J.; LIVINGSTON, C.J.; and GABRIEL, J.

DELIVERED: February 6, 2014




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