                                 NO. 12-13-00028-CV

                           IN THE COURT OF APPEALS

              TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

RICHARD TERRANCE AYERS,                        §      APPEAL FROM THE 87TH
APPELLANT

V.                                             §      JUDICIAL DISTRICT COURT

DONNA FLETCHER, ET AL,
APPELLEES                                      §      ANDERSON COUNTY, TEXAS

                                 MEMORANDUM OPINION
       Richard Terrance Ayers appeals from the trial court’s dismissal of his suit under Chapter
14 of the Texas Civil Practice and Remedies Code. He raises six issues on appeal. We affirm.


                                        BACKGROUND
       Ayers is an inmate in the Texas Department of Criminal Justice–Correctional Institutions
Division (TDCJ-CID). On May 23, 2012, Ayers received multiple copies of a newsletter.
Donna Fletcher, an employee of TDCJ-CID, delivered one copy of the newsletter to Ayers, but
she withheld the additional copies based on ―content.‖ Ayers appealed Fletcher’s decision to the
TDCJ-CID Director’s Review Committee (DRC). According to Ayers, the DRC denied his
appeal on July 30, 2012.
       Ayers then sued Fletcher and Rick Thaler, who he stated was the Director of the DRC.
Ayers alleged that Fletcher infringed upon his right to free speech when she refused to deliver
the additional copies of the newsletter. He alleged that Thaler also violated his right to free
speech when the DRC denied his appeal. Ayers further alleged that Fletcher’s and Thaler’s
conduct violated his due process rights because no TDCJ-CID policy authorized Fletcher to
withhold the extra copies of the newsletter from him.          Ayers sought injunctive relief,
compensatory damages, and punitive damages.



                                               1
        Along with his petition, Ayers filed an affidavit of his previous suits, an affidavit of
indigency, a handwritten declaration that he entitled, ―Copy of the DRC’s Decision in Response
to My Seeking an Administrative Remedy,‖ an affidavit of exhaustion of administrative
remedies, and a six month summary of his inmate trust account. The trial court dismissed
Ayers’s claims as frivolous or malicious. The trial court’s initial dismissal named someone other
than Ayers as the plaintiff. The trial court then signed a nunc pro tunc order of dismissal in
which Ayers was properly identified as the plaintiff.
        Ayers filed a motion for new trial that apparently was overruled by operation of law.
This appeal followed.


                                          DISMISSAL OF SUIT
        In his second issue, Ayers contends that the trial court erred when it dismissed his claims
based on Texas Civil Practice and Remedies Code section 14.005.
Standard of Review
        We review the trial court’s dismissal of an in forma pauperis suit under an abuse of
discretion standard. Hickson v. Moya, 926 S.W.2d 397, 398 (Tex. App.–Waco 1996, no writ).
A trial court abuses its discretion if it acts arbitrarily, capriciously, and without reference to any
guiding rules or principles. Lentworth v. Trahan, 981 S.W.2d 720, 722 (Tex. App.–Houston
[1st Dist.] 1998, no pet.). We will affirm a dismissal if it was proper under any legal theory.
Johnson v. Lynaugh, 796 S.W.2d 705, 706-07 (Tex. 1990); Birdo v. Ament, 814 S.W.2d 808,
810 (Tex. App.–Waco 1991, writ denied).             The trial courts are given broad discretion to
determine whether a case should be dismissed because (1) prisoners have a strong incentive to
litigate; (2) the government bears the cost of an in forma pauperis suit; (3) sanctions are not
effective; and (4) the dismissal of unmeritorious claims accrue to the benefit of state officials,
courts, and meritorious claimants. See Montana v. Patterson, 894 S.W.2d 812, 814-15 (Tex.
App.–Tyler 1994, no writ).
Chapter 14
        Chapter 14 of the Texas Civil Practice and Remedies Code controls suits brought by
inmates who file affidavits or unsworn declarations of inability to pay costs.1 TEX. CIV. PRAC. &


        1
        Chapter 14 does not apply to an action brought under the Texas Family Code. TEX. CIV. PRAC. & REM.
CODE ANN. 14.002(b) (West Supp. 2014).


                                                    2
REM. CODE ANN. § 14.002(a) (West Supp. 2014); Hickson, 926 S.W.2d at 398. Such an inmate
must comply with the procedural requirements set forth in Chapter 14. TEX. CIV. PRAC. & REM.
CODE ANN. §§ 14.002(a), 14.004 (West Supp. 2014), 14.005 (West 2002). Failure to fulfill any
of those procedural requirements will result in the dismissal of the inmate’s suit.                          See id.
§ 14.003 (West 2002); Brewer v. Simental, 268 S.W.3d 763 (Tex. App.–Waco 2008, no pet.)
(citing Bell v. Tex. Dep’t of Criminal Justice–Institutional Div., 962 S.W.2d 156, 158 (Tex.
App.–Houston [14th Dist.] 1998, pet. denied)).
         One such procedural requirement is that the inmate must properly exhaust available
administrative remedies by completing the prison administrative grievance process. TEX. CIV.
PRAC. & REM. CODE ANN. § 14.005(a). This procedural requirement has two steps. The first is
filing an affidavit or unsworn declaration stating the date that the grievance was filed and the
date the written decision of the committee was received by the inmate. Id. § 14.005(a)(1). The
second is filing a copy of the written decision from the grievance system. Id. § 14.005(a)(2).
         This requirement serves two purposes. First, compliance demonstrates that the inmate
has exhausted his administrative remedies, and second, the information provided by the inmate
enables the court to determine whether the inmate has filed his claim within the requisite time
period. See Garrett v. Borden, 283 S.W.3d 852, 853 (Tex. 2009).
Analysis
         In its nunc pro tunc order of dismissal, the trial court found, as one of its grounds for
dismissal, that Ayers ―failed to include a copy of any written decisions from the grievance board
as required under [Texas Civil Practice and Remedies Code section] 14.005.‖ The trial court
was correct. Ayers provided a handwritten declaration of what he claimed to be the ruling of the
DRC, but that is not what section 14.005 requires. The statute is clear. An inmate who is
proceeding under Chapter 14 must file a copy of the written decision from the grievance system.
TEX. CIV. PRAC. & REM. CODE ANN. § 14.005 (a)(2).2 Because Ayers failed to comply with this
requirement, the trial court properly dismissed his claims. See Conely v. Tex. Bd. of Criminal
Justice, No. 03-11-00094-CV, 2012 WL 1959320, at *4 (Tex. App.—Austin May 30, 2012, pet.



         2
           Ayers asserts that the DRC is the grievance board for this type of complaint, but he cites no authority for
his assertion. Even assuming arguendo that Ayers’s assertion is correct, he did not comply with section 14.005(a)(2)
because he did not file a copy of the written decision of the DRC.




                                                          3
denied) (mem. op.) (upholding dismissal for failure to demonstrate exhaustion of administrative
remedies). Therefore, we overrule Ayers’s second issue.3


                                          MOTION FOR NEW TRIAL
        In his sixth issue, Ayers contends that the trial court erred when it failed to grant his
motion for new trial.4
Applicable Law
        A new trial may be granted ―for good cause, on motion or on the court’s own motion.‖
TEX. R. CIV. P. 320. Generally, we review a trial court’s decision on a motion for new trial for
an abuse of discretion. See Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 926 (Tex.
2009). The trial court’s determination of the facts is binding on the appellate courts and will be
reversed only where a ―clear abuse of discretion is shown.‖ Pharo v. Chambers Cnty., Tex., 922
S.W.2d 945, 948 (Tex. 1996) (citing State v. Wair, 163 Tex. 69, 351 S.W.2d 878, 878 (Tex.
1961)). To determine whether a trial court abused its discretion, we must decide whether the
trial court acted without reference to any guiding rules or principles; in other words, whether the
act was arbitrary or unreasonable. See Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d
682, 687 (Tex. 2002); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.
1985). We cannot determine that a trial court abused its discretion merely because we would
have decided the matter differently. See Downer, 701 S.W.2d at 241-42.
Application
        Ayers’s motion for new trial does not provide an explanation for his failure to include a
copy of any written decisions from the DRC. Because Ayers’s failure to provide a copy of the
written decision of the grievance board as required under Texas Civil Practice and Remedies
Code section 14.005(a)(2) is a valid basis for dismissal. And Ayers did not explain this failure in
his motion for new trial. Therefore, the trial court did not abuse its discretion in denying the
motion. Ayers failed to demonstrate that the trial court acted without reference to any guiding

        3
          Because the trial court’s dismissal of Ayers’s claims was proper under at least one legal theory, the trial
court did not abuse its discretion. See Johnson v. Lynaugh, 796 S.W.2d 705, 706-07 (Tex. 1990). Thus, having
overruled Ayers’s second issue, we need not address his first, third, fourth, and fifth issues. See TEX. R. APP. P.
47.1.
        4
          The clerk’s record does not contain an order disposing of Ayers’s motion for new trial. Apparently, his
motion for new trial was overruled by operation of law. See TEX. R. CIV. P. 329b(c).




                                                         4
rules or principles when it denied his motion for new trial. Accordingly, we overrule Ayers’s
sixth issue.


                                                    DISPOSITION
         Having overruled Ayers’s second and sixth issues, we affirm the judgment of the trial
court.

                                                                  BRIAN HOYLE
                                                                     Justice


Opinion delivered August 27, 2014.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                    (PUBLISH)



                                                           5
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                            JUDGMENT

                                            AUGUST 27, 2014


                                          NO. 12-13-00028-CV


                                 RICHARD TERRANCE AYERS,
                                         Appellant
                                            V.
                                  DONNA FLETCHER, ET AL,
                                         Appellees


                                  Appeal from the 87th District Court
                         of Anderson County, Texas (Tr.Ct.No. 87-11668)

                        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
judgment.
                        It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
                        Brian Hoyle, Justice.
                        Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
