                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-12-00065-CV

MARK WALTERS,
                                                             Appellant
v.

BRAD LIVINGSTON AND TEXAS
DEPARTMENT OF CRIMINAL JUSTICE,
                                                             Appellees


                            From the 12th District Court
                               Walker County, Texas
                               Trial Court No. 25,548


                           MEMORANDUM OPINION


       Mark Walters, a prison inmate, appeals from the trial court’s dismissal of his civil

lawsuit. Because we find the trial court did not abuse its discretion in dismissing

Walters’ suit with prejudice, the trial court’s judgment is affirmed.

                                    BRAD LIVINGSTON

       At the outset, we must determine whether Brad Livingston, the Director of the

Texas Department of Criminal Justice, is a party to this appeal.
       Although styled against the Texas Department of Criminal Justice, Walters

initially brought suit against Brad Livingston, in both Livingston’s individual and

official capacity, for the elimination of Project Rio, a re-entry and re-integration

program for inmates. After the Attorney General filed a motion to dismiss Walters’

suit, Walters specifically dropped Livingston from the suit and, by an amended petition

Walters styled as a supplemental petition filed with the trial court clerk, substituted in

the Texas Department of Criminal Justice as the defendant. He explained to the trial

court, in a document in the clerk’s record which appears to be a cover letter to the

amended petition, that his action was deliberate and pursuant to the election of

remedies provision in section 101.106 of the Texas Civil Practice and Remedies Code.

TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(f) (West 2011) (“On the employee's motion,

the suit against the employee shall be dismissed unless the plaintiff files amended

pleadings dismissing the employee and naming the governmental unit as defendant on

or before the 30th day after the date the motion is filed.”). The document signed by

Walters and addressed to the trial court states in relevant part:

       I am filing a Second Supplimental [sic] Petition re: cause number 25,584,
       as an appropriate response to the defendants [sic] motion to dismiss:
       Amicus Curiae.

       According to the Civil Practices [sic] and Remedies, Governmental
       Liabilities § 101.106(f), I have 30 days after a motion to dismiss is filed to
       Amend my pleadings dismissing an employee as defendant and naming
       the governmental unit as defendant.



Walters v. Livingston                                                                   Page 2
       As my accompanying affidavit states, I did not receive the motion to
       dismiss until June 1, 2011….

Walters’ accompanying affidavit provides in relevant part:

       In support of the Amicus Curiae, the Plaintiff is filing a second
       supplimental [sic] petition, in accordance with V. T. C. A. Civil Practices
       [sic] and Remedies § 101.106(f) which states that within 30 days of a
       defendants [sic] motion for dismissal, a plaintiff can file an amended
       pleadings dismissing an employee and naming a governmental unit as
       defendant.

Thus, as of June 3, 2011, pursuant to Walters’ “Second Supplimental Petition,”

Livingston was no longer a party to Walters’ suit.

       Walters amended his lawsuit a third time but did not include Livingston as a

defendant, which would have been pointless given Walters’ earlier decision. The trial

court ultimately dismissed Walters’ suit against TDCJ. The order of dismissal made no

mention of Livingston because Livingston was no longer a party to the proceeding.

       By his notice of appeal, Walters named only Livingston as the appellee or other

party to the appeal and did not identify or name TDCJ. Rule 25.1(b) of the Texas Rules

of Appellate Procedure provides that the filing of a notice of appeal invokes our

jurisdiction over all parties to the trial court’s judgment or order appealed from. TEX. R.

APP. P. 25.1(b).        We have no order or judgment from the trial court regarding

Livingston. Thus, Livingston is not a party to the appeal, and we have no jurisdiction

over Livingston in this appeal. See TEX. R. APP. P. 25.1(b); Avila v. Lone Star Radiology,

183 S.W.3d 814, 818 (Tex. App. Waco 2005) (Gray, C.J., dissenting) (“A notice of appeal,


Walters v. Livingston                                                                Page 3
however, does not invoke our jurisdiction over persons who were not parties in the trial

court.”).

       The Attorney General raised the issue regarding the proper party against whom

Walters brought his suit. Walters responded in his reply brief that naming TDCJ as the

defendant in his pleading was a misnomer. His response is contrary to the record and

to his election of remedies. Thus, because we have no jurisdiction over Livingston, an

appeal, if any, as to Livingston is dismissed. See TEX. R. APP. P. 42.3(a).

                                     ISSUES ON APPEAL

       In his first issue, Walters contends the trial court erred in dismissing Walters’ suit

because: 1) constitutional violations by Livingston allowed Walters to bring a cause of

action; 2) Livingston failed to list Project Rio as an encumbrance; 3) Livingston did not

adhere to the Texas Open Meetings Act; and 4) Livingston is not entitled to either

sovereign immunity or official immunity. This issue questions only the acts or omission

of Brad Livingston. As we have held, Livingston is not a party to this appeal; and any

appeal as to him has been dismissed. Because Livingston is not a party to the appeal,

Walters’ first issue is overruled.

       In his second issue, Walters contends the trial court abused its discretion in

dismissing his suit as frivolous because 1) he was either not required to comply with the

grievance procedures or, alternatively, did comply with the procedures, and 2) his

claims had an arguable basis in law. We review the trial court's dismissal of an in forma


Walters v. Livingston                                                                  Page 4
pauperis suit filed by an inmate under an abuse of discretion standard. Hickson v. Moya,

926 S.W.2d 397, 398 (Tex. App.—Waco 1996, no writ).

       An inmate may not file a claim in state court regarding operative facts for which

the TDCJ grievance system provides the exclusive administrative remedy until the

inmate receives a written decision issued by the highest authority provided for in the

grievance system, or the 180th day after the date the grievance is filed, if the inmate has

not received a written decision. TEX. GOV'T CODE ANN. § 501.008(d) (West 2012). An

inmate who files a claim that is subject to the prison grievance system must also file an

affidavit or unsworn declaration stating the date the grievance was filed and the date

the written decision was received by the inmate and a copy of the written decision from

the grievance system. TEX. CIV. PRAC. & REM. CODE ANN. § 14.005(a) (West 2002). If an

inmate does not comply with § 14.005(a) or fails to file his claim within 31 days after the

date the inmate receives the written decision from the grievance system, the inmate’s

suit must be dismissed. See id. (b); Leachman v. Dretke, 261 S.W.3d 297, 311 (Tex. App.—

Fort Worth 2008, no pet.) (op’n on rhg). Exhaustion of these administrative remedies

requires the proper exhaustion of the remedies. Leachman, 261 S.W.3d at 311; see Retzlaff

v. Tex. Dep't of Crim. Justice, 94 S.W.3d 650, 654 (Tex. App.—Houston [14th Dist.] 2002,

pet. denied). Further, if an inmate has failed to exhaust his administrative remedies, his

claim has no arguable basis in law, and is, therefore, frivolous. TEX. CIV. PRAC. & REM.

CODE ANN. § 14.003 (West 2002); Retzlaff, 94 S.W.3d at 653.


Walters v. Livingston                                                                Page 5
          Initially, Walters argues he was not required to comply with the grievance

procedures because Project Rio is a statute which was violated and which is “non-

grievable” under TDCJ policy.               He bases this conclusion on language in TDCJ’s

Offender Orientation Handbook which provides an inmate may not "grieve" state or

federal court decisions, laws, or regulations. Offender Orientation Handbook at pg.53,

http://www.tdcj.state.tx.us/documents/Offender_Orientation_Handbook_English.pdf)

(emphasis added). But Walters is not complaining about a state law, that is, that the law

is invalid; he is complaining about the cessation of a state program. He contends the

cessation violates a state law. We do not believe that TDCJ intended this type of claim

made by Walters to be exempt from the grievance procedures under the provision cited

by Walters of the Offender Orientation Handbook. Raising such a claim in a grievance

procedure would give TDCJ an opportunity to correct a violation, if any, that it made in

the cessation of the program.1 See Leachman, 261 S.W.3d at 309 (citing Woodford v. Ngo,

548 U.S. 81, 83-84, 126 S. Ct. 2378, 2382, 165 L. Ed. 2d 368 (2006)) (discussing the

reasoning for the need for the exhaustion of administrative remedies prior to an inmate

filing suit); Whirty v. Grimes, Nos. 07-08-0394-CV & 07-09-0111-CR, 2009 Tex. App.

LEXIS 2535, *5 (Tex. App.—Amarillo Apr. 14, 2009, pet. denied) (mem. op.). Walters

cannot side step the grievance procedures by re-characterizing his claim as one not

covered by the procedures. See Whirty, 2009 Tex. App. LEXIS 2535, *9 (“Couching the


1   We do not hold that there was a violation in ceasing the program.

Walters v. Livingston                                                                Page 6
claim as one in tort for damages does not remove it from the exhaustion requirement of

chapter 14.”). Accordingly, we hold Walters was required to comply with TDCJ’s

grievance procedures.

       Alternatively, Walters contends that if he was required to comply, he actually

complied with the grievance procedure and exhausted his administrative remedies. We

find he did not.

       Walters attached Step 1 and Step 2 grievance forms to his original petition;

however, his complaints in those grievance forms do not comport with his claims in his

suit. In his grievance, Walters complains about not receiving a certificate of on-the-job-

training through Project Rio when he had qualified to receive one. Walters’ grievance

does not address the issues he brought in his civil suit; and, thus, we cannot say he

either sought or received a final administrative decision on those issues. See Wolf v. Tex.

Dep't of Crim. Justice, 182 S.W.3d 449, 451 (Tex. App.—Texarkana 2006, pet. denied);

Williams v. Ballard, No. 10-08-00378-CV, 2009 Tex. App. LEXIS 9246 (Tex. App.—Waco

Dec. 2, 2009). Further, Walters did not attach an affidavit or unsworn declaration

stating the date that the grievance was filed and the date the written decision was

received by him. TEX. CIV. PRAC. & REM. CODE ANN. § 14.005(a)(1) (West 2002). The

Step 2 grievance form does not show when he received this final decision. Thus,

Walters did not provide the trial court with the information required so it could

determine whether the lawsuit was timely filed; and, given that over two months had


Walters v. Livingston                                                                Page 7
elapsed between the time the Step 2 grievance form as signed by a TDCJ agent and the

time Walters filed his lawsuit, it is entirely reasonable for the trial court to conclude that

over thirty-one days had elapsed since Walters was informed of the final administrative

decision. See Wolf, 182 S.W.3d at 451.

       Walters failed to properly exhaust his administrative remedies, and as such,

raising his claim by bringing suit against TDCJ had no arguable basis in law.

Accordingly, the trial court did not abuse its discretion in dismissing Walters’ suit as

frivolous. Walters’ second issue is overruled.

       In his third issue, Walters contends the trial court abused its discretion in not

issuing findings of fact and conclusions of law. Pursuant to Rules 296 and 297 of the

Texas Rules of Civil Procedure, a trial judge must, when properly requested, prepare

findings of fact in cases tried in the district court or county court without a jury. See TEX.

R. CIV. P. 296, 297. Those rules, however, do not impose any duty on the trial court to

file findings of fact or conclusions of law where there has been no trial as in this case.

Kendrick v. Lynaugh, 804 S.W.2d 153, 156 (Tex. App.—Houston [14 Dist.] 1990, no pet.);

Smith v. Quada, No. 10-09-00414-CV, 2011 Tex. App. LEXIS 5122, *5-6 (Tex. App.—Waco

July 6, 2011, pet. denied) (mem. op.). Walters’ third issue is overruled.

       In his fourth and last issue, Walters complains that the trial court abused its

discretion in dismissing Walters’ case with prejudice. A motion to dismiss that is

granted pursuant to section 14.003 for failure to establish an arguable basis in law is


Walters v. Livingston                                                                   Page 8
appropriately dismissed with prejudice. Nabelek v. DA of Harris County, 290 S.W.3d 222,

233 (Tex. App.—Houston [14th Dist.] 2005, pet. denied); Williams v. Ballard, No. 10-08-

00378-CV, 2009 Tex. App. LEXIS 9246, *4 (Tex. App.—Waco Dec. 2, 2009, no pet.). We

have already determined Walters’ claims had no arguable basis in law. Thus, the trial

court did not abuse its discretion in dismissing Walters’ suit with prejudice. Walters’

fourth issue is overruled.

                                     CONCLUSION

       Having overruled each of Walters’ issues on appeal, we affirm the trial court’s

judgment.


                                        TOM GRAY
                                        Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Appeal dismissed in part and affirmed in part
Opinion delivered and filed November 1, 2012
[CV06]




Walters v. Livingston                                                            Page 9
