                                 MEMORANDUM OPINION
                                         No. 04-11-00009-CV

                                         Perry HAMMONDS,
                                               Appellant

                                                   v.

                       TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
                                     Appellee

                     From the 218th Judicial District Court, Karnes County, Texas
                                 Trial Court No. 10-05-00084-CVK
                                Honorable Ron Carr, Judge Presiding

Opinion by:       Sandee Bryan Marion, Justice

Sitting:          Sandee Bryan Marion, Justice
                  Phylis J. Speedlin, Justice
                  Rebecca Simmons, Justice

Delivered and Filed: August 17, 2011

AFFIRMED

           This is an appeal from the trial court’s dismissal of a lawsuit filed by an inmate against

the Texas Department of Criminal Justice (“TDCJ”). On appeal, appellant asserts the trial court

erred by dismissing his lawsuit and by not ruling on (1) his objections to the TDCJ’s answer and

its motion to dismiss, (2) his objection that the TDCJ did not comply with Texas Government

Code section 2001.175, (3) his “offer of record,” and (4) his request for findings of fact and

conclusions of law. We affirm.
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                                        BACKGROUND

       Appellant, Perry Hammonds, is an inmate at the Stiles Unit in Beaumont, Texas.

Hammonds initially brought three administrative grievances against the TDCJ, alleging

forfeitures were improperly made from his inmate account. Hammonds originally filed suit

against the TDCJ in district court on August 10, 2009. Although the record in this appeal does

not contain the record from that lawsuit, Hammonds contends his suit was dismissed without

prejudice on January 27, 2010. On May 13, 2010, Hammonds filed the underlying lawsuit, again

alleging forfeitures were improperly made from his inmate account. The TDCJ moved to

dismiss the suit on the grounds it was barred by the statute of limitations and, therefore,

frivolous. The trial court dismissed the suit, and this appeal ensued.

                                          DISCUSSION

       A trial court may dismiss an inmate’s claim if the court finds the claim is frivolous. TEX.

CIV. PRAC. & REM. CODE ANN. § 14.003(a)(2) (West 2002). A claim is frivolous if, for among

other reasons, the claim’s realistic chance of ultimate success is slight or the claim has no

arguable basis in law or in fact.     Id. § 14.003(b)(1), (2).    In this case, the TDCJ argued

Hammonds’s claim was barred by the thirty-one-day statute of limitations imposed by Civil

Practice and Remedies Code section 14.005, which provides as follows:

       (a) An inmate who files a claim that is subject to the grievance system established
       under Section 501.008, Government Code, 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 described by
               Section 501.008(d), Government Code, was received by the
               inmate; and
               (2) a copy of the written decision from the grievance system.




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        (b) 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(a), (b).

        According to his affidavit, Hammonds received a written decision on each of his three

grievances on July 18, 2009; July 21, 2009; and July 24, 2009, respectively.              Thus, the

limitations period on all three claims expired in mid-to-late August 2009. If Hammonds filed his

original suit on August 10, 2009, then his suit was timely as to all three claims. However, that

lawsuit was dismissed without prejudice, and Hammonds did not file this lawsuit until May 13,

2010, almost nine months after the limitations period expired.

        In his objection to the TDCJ’s motion to dismiss, Hammonds argued that because his

August 2009 suit was timely and was dismissed without prejudice, his May 2010 suit was also

timely because the dismissal without prejudice of the 2009 suit allowed him to refile.             A

dismissal is the equivalent of a suit never having been filed. Cunningham v. Fox, 879 S.W.2d

210, 212 (Tex. App.—Houston [14th Dist.] 1994, writ denied). Therefore, if a suit is dismissed,

the statute of limitations is not tolled for any new pleading filed. Id. Accordingly, as a general

rule, when a case is dismissed, limitations run from the time the cause of action accrued until the

date of the refiling. See id.

        “The procedural requirements placed on suits filed by indigent inmates under chapter 14

are designed to control the flood of frivolous lawsuits filed in the courts of this state by prison

inmates.” Sanders v. Palunsky, 36 S.W.3d 222, 226 (Tex. App.—Houston [14th Dist.] 2001, no

pet.). “Requiring indigent inmates to file affidavits related to their previous filings, to exhaust

their administrative remedies, to file suit within 31 days after the decision on their grievance, and

to dismiss their suits if they do not comply, furthers the legitimate, even compelling, state



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interest in protecting scarce judicial resources from the continued onslaught of prisoners who

abuse the judicial system by filing frivolous civil lawsuits.” Id. When Hammonds’s 2009 suit

was dismissed, he was still required to refile any subsequent suit within the appropriate

limitations period, absent any statutory tolling period. In this case, there is no statutory authority

for tolling Hammonds’s inmate lawsuit.              Accordingly, the applicable limitations period is

calculated without reference to Hammonds’s first suit. Therefore, the trial court did not err in

concluding his claim was frivolous because it was filed outside the thirty-one-day limitations

period. 1

        Hammonds also complains the trial court did not rule on his objection that the TDCJ

failed to comply with the following requirement under the Texas Government Code:

        After service of the petition on a state agency and within the time permitted for
        filing an answer or within additional time allowed by the court, the agency shall
        send to the reviewing court the original or a certified copy of the entire record of
        the proceeding under review. The record shall be filed with the clerk of the court.
        ....

TEX. GOV’T CODE ANN. § 2001.175(b) (West 2008). Hammonds also complains the trial court

erred by not ruling on his written “offer of proof” in which he asked the court to admit the TDCJ

disciplinary report and hearing record. Hammonds did not re-urge these complaints during the

hearing on the TDCJ’s motion to dismiss, which he attended. And, it appears the trial court was

aware of the file, which is also included in the record on appeal. Accordingly, we conclude

Hammonds has not shown the trial court abused its discretion.

        Finally, Hammonds asserts the trial court abused its discretion by failing to rule on his

request for findings of fact and conclusions of law. Although Hammonds filed a request for


1
  The granting of the TDCJ’s motion to dismiss is an implicit rejection of Hammonds’s objection to the motion to
dismiss and his objection to the TDCJ’s original answer (which included a statute of limitations affirmative
defense); therefore, we disagree with his complaints that the trial court did not rule on his objections.


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findings of fact and conclusions of law, the trial court did not make the findings and conclusions.

Hammonds did not file a notice of past due findings of fact and conclusions of law that complied

with Texas Rule of Civil Procedure 297. See TEX. R. CIV. P. 297. 2 He thus waived any

complaint regarding the court’s failure to make the findings and conclusions.

                                                 CONCLUSION

         We overrule Hammonds’s issues on appeal and affirm the trial court’s judgment.




                                                            Sandee Bryan Marion, Justice




2
  “If the court fails to file timely findings of fact and conclusions of law, the party making the request shall, within
thirty days after filing the original request, file with the clerk and serve on all other parties in accordance with Rule
21a a ‘Notice of Past Due Findings of Fact and Conclusions of Law’ which shall be immediately called to the
attention of the court by the clerk. Such notice shall state the date the original request was filed and the date the
findings and conclusions were due.” TEX. R. CIV. P. 297.

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