                                IN THE
                        TENTH COURT OF APPEALS

                              No. 10-11-00042-CV

CHARLES E. HUTCHINSON,
                                                       Appellant
v.

TDCJ-ID, ET AL,
                                                       Appellee



                         From the 12th District Court
                            Walker County, Texas
                            Trial Court No. 25,136


                        MEMORANDUM OPINION


      By three issues, which can be categorized as two, appellant, Charles E.

Hutchinson, an inmate proceeding pro se and in forma pauperis, challenges the trial

court’s dismissal of his lawsuit against appellees, Texas Department of Criminal

Justice—Institutional Division (“TDCJ”) and TDCJ employees, Edward W. Smith, David
Bratz, Barry Moran, Lisa Mantle, Marla Rollins, David M. Rice, Carey S. Staples, and

Cheryl Lawson.1 We affirm.

                                            I. BACKGROUND

        In his lawsuit, which was filed on May 27, 2010, appellant asserted that, in

retaliation for being a “writ writer,” appellees damaged his typewriter and confiscated

three legal books from appellant during a “unit shakedown.” Appellant also argued

that appellees engaged in a “civil conspiracy” to violate his due process rights and his

right of access to the courts by refusing to consider two witness affidavits in his initial

grievances and by failing to return the affidavits to him. Appellant sought declaratory

and monetary relief from appellees.

        Appellees responded to appellant’s lawsuit by filing an answer denying all of the

allegations contained in appellant’s petition and asserting numerous affirmative

defenses, including statute of limitations. Later, appellees moved to dismiss appellant’s

suit as frivolous for, among other things, failing to exhaust all administrative remedies

prior to filing suit and for failing to file his petition within thirty-one days of his receipt

of written decisions from the grievance system regarding his grievances. Without a

hearing, the trial court granted appellees’ motion and dismissed with prejudice

appellant’s claims as frivolous. However, prior to dismissing appellant’s claims, the



         1 Appellant initially filed suit against TDCJ, Edward W. Smith, David Bratz, Cheryl Lawson, Lisa

Mantle, Barry Moran, Carey S. Staples, Marla Rollins, and David M. Rice. Smith, Bratz, Lawson, Mantle,
Moran, Staples, Rollins, and Rice filed a joint answer denying appellant’s claims. Appellant subsequently
amended his petition to include a Step 1 grievance filed on May 26, 2010, pertaining to additional
incidents involving Lawson, Rice, Staples, and Daniel Melchor. In response, appellees moved to sever
appellant’s claims involving the May 26, 2010 Step 1 grievance from the claims made in this matter; the
trial court granted appellees’ motion to sever.

Hutchinson v. TDCJ-ID, et al                                                                      Page 2
trial court entered an order assessing $232 in court costs and fees against appellant. It is

from these two orders that appellant now appeals.

                         II. STANDARD OF REVIEW AND APPLICABLE LAW

       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). Moreover, in determining whether claims are frivolous or malicious and subject

to dismissal, a trial court may consider whether: (1) the claim’s realistic chance of

ultimate success is slight; (2) the claim has no arguable basis in law or in fact; (3) it is

clear that the party cannot prove facts in support of the claim; and (4) the claim is

substantially similar to a previous claim filed by the inmate because the claim arises out

of the same operative facts. TEX. CIV. PRAC. & REM. CODE ANN. § 14.003 (Vernon 2002);



Hutchinson v. TDCJ-ID, et al                                                          Page 3
see Spurlock v. Schroedter, 88 S.W.3d 733, 736 (Tex. App.—Corpus Christi 2002, pet.

denied).

       Chapter 14 of the Texas Civil Practice and Remedies Code controls most lawsuits

brought by inmates who have filed an affidavit or unsworn declaration of inability to

pay costs, as is the case here. TEX. CIV. PRAC. & REM. CODE ANN. § 14.002(a) (Vernon

2002); Hickson, 926 S.W.2d at 398. Chapter 14 imposes several procedural requirements

that an inmate must comply with to bring a lawsuit without paying filing fees. See TEX.

CIV. PRAC. & REM. CODE ANN. §§ 14.002(a), 14.004, 14.005 (Vernon 2002). Failure to meet

the procedural requirements will result in the dismissal of an inmate’s suit. Brewer v.

Simental, 268 S.W.3d 763, 767 (Tex. App.—Waco 2008, no pet) (citing Bell v. Tex. Dep’t of

Criminal Justice—Inst. 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 his

administrative remedies by completing the internal TDCJ grievance process before

filing a lawsuit. TEX. CIV. PRAC. & REM. CODE ANN. § 14.005; Leachman v. Dretke, 261

S.W.3d 297, 308-10 (Tex. App.—Fort Worth 2008, no pet.) (op. on reh’g) (describing the

grievance process). Section 14.005, entitled “Grievance System Decision; Exhaustion of

Administrative Remedies,” 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


Hutchinson v. TDCJ-ID, et al                                                        Page 4
               Section 501.008(d), Government Code, was received by the inmate;
               and

           (2) a copy of the written decision from the grievance system.

       (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.

TEX. CIV. PRAC. & REM. CODE ANN. § 14.005(a), (b). These requirements serve two

purposes. First, an inmate’s compliance with this measure will demonstrate that he has

exhausted his administrative remedies, and second, the information provided by the

inmate will enable 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); Smith v.

Tex. Dep’t of Criminal Justice—Inst. Div., 33 S.W.3d 338, 341 (Tex. App.—Texarkana 2000,

pet. denied). An inmate’s failure to comply with section 14.005 subjects his suit to

dismissal. See Smith, 33 S.W.3d at 341.

                         III. EXHAUSTION OF ADMINISTRATIVE REMEDIES

       By his first issue, appellant contends that he filed three grievances pertaining to

the same subject matter and that the date of the last filing should be used to calculate

whether he timely exhausted his administrative remedies. Essentially, appellant argues

that his lawsuit was timely filed and that he exhausted his administrative remedies

because he received the denial of his third Step 2 grievance on April 30, 2010, and

because he placed his petition in the mail on May 27, 2010, less than thirty-one days

from receiving the final Step 2 denial. We disagree.




Hutchinson v. TDCJ-ID, et al                                                            Page 5
       Here, appellant filed three different sets of Step 1 and Step 2 grievances.

Appellant’s initial grievances sought redress for the alleged damage to his typewriter

and the alleged confiscation of his legal books. Appellant’s second set of grievances

addressed two witness affidavits that he sought to attach to the initial grievances so that

the initial grievances could be reconsidered with the witness affidavits. In his third set

of grievances, appellant sought the return of the witness affidavits and requested that

the Office of the Inspector General conduct an investigation to determine whether a

“civil conspiracy” had occurred. With regard to his three sets of grievances, appellant

acknowledged that he received Step 2 denials for each of the three grievances on March

26, 2010; March 30, 2010; and April 30, 2010, respectively.

       On appeal, appellant argues that all of his grievances stemmed from the same

subject matter; thus, he had to exhaust all of his grievances before he could file his

petition in this matter. This argument is not supported in the law.

       Nothing in section 14.005 indicates that the filing of additional grievances serves

to extend the deadline to file a petition in response to a decision from the grievance

system. See TEX. CIV. PRAC. & REM. CODE ANN. § 14.005; see also Allen v. Tex. Dep’t of

Criminal Justice—Inst. Div., 80 S.W.3d 681, 683 (Tex. App.—Houston [1st Dist.] 2002, pet.

denied) (“This second grievance involved the same issues as his first grievance, which

had previously been denied . . . . Filing this second grievance did not extend appellant’s

deadline to file his state court claim. . . . Nothing in the statute [section 14.005] indicates

that appellant’s pursuit of a federal remedy or his filing a second grievance would

suffice to extend the deadline to file a state claim.”). Moreover, appellant’s insistence

Hutchinson v. TDCJ-ID, et al                                                             Page 6
that the doctrine of “equitable tolling” allowed him to wait to file suit until his final

grievance was resolved is unfounded. See TEX. CIV. PRAC. & REM. CODE ANN. § 14.014;

see also Doyle v. Lucy, No. 14-03-00039-CV, 2004 Tex. App. LEXIS 2790, at *11 (Tex.

App.—Houston [14th Dist.] Mar. 30, 2004, no pet.) (mem. op.) (“[T]he plain language of

section 14.014, which provides that the provisions of Chapter 14 cannot be modified or

repealed by a rule adopted by the Texas Supreme Court, indicates that the legislature

intended to apply strict timetables to suits filed by inmates proceeding in forma

pauperis.”) (citing Warner v. Glass, 96 S.W.3d 640, 641 (Tex. App.—Texarkana 2003)

(holding that Texas Rules of Civil Procedure 4 and 5 do not act to extend the thirty-one

day requirement of section 14.005(b)), reversed on other grounds, 135 S.W.3d 681 (Tex.

2004) (per curiam)). Because he admits that his grievances all pertain to the same

subject matter, appellant was required to file suit in state district court within thirty-one

days after receiving his first Step 2 denial on March 26, 2010. 2 See TEX. CIV. PRAC. &

REM. CODE ANN. § 14.005(b). However, appellant did not file suit until May 27, 2010,

more than a month after he should have filed suit. See id. Because appellant failed to

timely file his lawsuit within the timeframe outlined in section 14.005(b), the trial court

was obligated to dismiss appellant’s lawsuit. See id.; see also Hamilton v. Williams, 298

S.W.3d 334, 340 (Tex. App.—Fort Worth 2009, pet. denied) (holding that an appellate

court may affirm the dismissal for failure to exhaust administrative remedies even if

that ground was not the basis of the trial court’s dismissal in an inmate suit subject to


        2 In his appellate brief, appellant repeatedly asserts that all of his grievances were “interrelated”
and that his subsequent grievances “related back” to his original grievance.


Hutchinson v. TDCJ-ID, et al                                                                          Page 7
chapter fourteen); Retzlaff v. Tex. Dep’t of Criminal Justice, 94 S.W.3d 650, 653 (Tex.

App.—Houston [14th Dist.] 2002, pet. denied) (“Where no fact hearing is held, we

affirm a dismissal under Chapter 14 of the Civil Practice and Remedies Code upon any

grounds presented in the motion [to dismiss].”). Accordingly, we overrule appellant’s

first issue.3

                               IV. ASSESSMENT OF COURT COSTS AND FEES

        In his second issue, appellant complains about the trial court’s assessment of

$232 in court costs and fees against him. Specifically, appellant argues that he should

not have to pay those fees because he is indigent and that the payment of those fees by

garnishment from his inmate account should not occur without his consent. Appellees

counter that section 14.006 of the civil practice and remedies code authorizes the

assessment of court costs and fees and that the collection of those fees is not contingent

upon appellant’s consent.4




        3 To the extent that appellant complains about the trial court’s failure to conduct a hearing on his
lawsuit prior to dismissal, we note that Texas courts have held that a hearing is not required when the
inmate has failed to exhaust his administrative remedies or, in other words, when the inmate has failed to
comply with section 14.005 of the civil practice and remedies code. See, e.g., Addicks v. Rupert, No. 12-09-
00288-CV, 2011 Tex. App. LEXIS 3260, at *10 (Tex. App.—Tyler Apr. 29, 2011, no pet.) (mem. op.) (citing
McCray v. Scott, No. 09-01-366-CV, 2002 Tex. App. LEXIS 3271, at *1 (Tex. App.—Beaumont May 9, 2002,
no pet.) (per curiam) (mem. op., not designated for publication)).

        4  Appellees urge that this issue has already been addressed in a petition for writ of mandamus
that appellant previously filed in this case pertaining to complaints about funds being withdrawn from
his inmate account. See In re Hutchinson, No. 10-10-00364-CV, 2010 Tex. App. LEXIS 8484, at **1-2 (Tex.
App.—Waco Oct. 20, 2010, orig. proceeding) (mem. op.). Our resolution of appellant’s mandamus
petition did not address whether appellant was required to pay the court costs and fees assessed in the
trial court. See id. at **1-2. We specifically noted that, at the time appellant filed his mandamus petition,
this matter was still pending in the trial court and that we were not authorized to review the trial court’s
interlocutory order assessing court costs and fees. Id. at **1-2. As a result, we declined to address
appellant’s complaints about the assessment of court costs and fees by the trial court. Id. at *2. Instead,
we waived any “unpaid filing fees” associated with appellant’s case at the appellate level and denied

Hutchinson v. TDCJ-ID, et al                                                                          Page 8
       Section 14.006(a) of the civil practice and remedies code provides that: “A court

may order an inmate who has filed a claim to pay court fees, court costs, and other costs

in accordance with this section and Section 14.007.” TEX. CIV. PRAC. & REM. CODE ANN.

§ 14.006(a) (Vernon 2002). In its order assessing court costs and fees, the trial court

directed appellant to:

       Pay an initial amount equal to the lesser of:

           (1) 20% of the preceding six month’s [sic] deposits in the Inmates’ [sic]
               Trust Account; or

           (2) The total amount of fees and costs.

       In each month following in which the initial payment is made Charles E.
       Hutchinson, TDCJ #595330 shall pay an amount equal to the lesser of:

           (1) 10% of that month’s deposit[s] to the Inmate Trust Account; or

           (2) The total amount of fees that remain unpaid[.]

       Payments are to continue until the total amount certified is paid, [or]
       Charles E. Hutchinson, TDCJ #595330 is released from confinement.

       On receipt of a copy of this Order, the department (Inmate Trust Account)
       shall withdraw money from the trust account of the inmate, hold same in
       a separate account, and shall forward said money to the Court clerk who
       submitted the Bill of Costs on the earlier of the following dates:

           (1) The date the total amount to be forwarded equals the total amount
               which remains unpaid;

               OR

           (2) The date the inmate is released.

(Emphasis in original).


appellant’s mandamus petition. Id. Given our resolution of appellant’s mandamus petition, we reject
appellees’ assertion that appellant’s issue has previously been addressed by this Court.

Hutchinson v. TDCJ-ID, et al                                                                Page 9
        The trial court’s order mirrors sections 14.006(b) through (e) of the civil practice

and remedies code. See TEX. CIV. PRAC. & REM. CODE ANN. § 14.006(b)-(e). Moreover,

we note that the filing of a lawsuit in forma pauperis does not preclude the trial court

from imposing court costs and fees, nor does it absolve the inmate of having to pay

such costs and fees. See id. § 14.006(a)-(b), (e); Thomas v. Skinner, 54 S.W.3d 845, 847

(Tex. App.—Corpus Christi 2001, pet. denied); see also Hamilton v. Thompson, No. 12-07-

00231-CV, 2008 Tex. App. LEXIS 4875, at **7-8 (Tex. App.—Tyler June 30, 2008, pet.

denied) (mem. op.) (“According to the clear language of the statute [section 14.006], the

trial court was authorized to assess court costs against Hamilton even though his claim

was not dismissed as frivolous or malicious.”). Based on the foregoing, we cannot say

that the trial court abused its discretion in assessing court costs and fees against

appellant and ordering that the court costs and fees be collected from appellant’s

inmate account. See Thomas v. Knight, 52 S.W.3d 292, 296 (Tex. App.—Corpus Christi

2001, pet. denied). We overrule appellant’s second issue.5


        5 As a sub-issue to issue two, appellant argues that this suit should not have been dismissed with
prejudice due to a procedural defect. We have already concluded that the trial court did not abuse its
discretion in dismissing appellant’s suit for failing to timely file his suit in compliance with section 14.005;
thus, in this sub-issue, we must determine whether the trial court was authorized to dismiss appellant’s
claims with prejudice. Ordinarily, the dismissal of a lawsuit with prejudice is improper if plaintiff’s
errors can be remedied through, among other things, amended pleadings. See Nabelek v. Dist. Att’y of
Harris County, 290 S.W.3d 222, 233 (Tex. App.—Houston [14th Dist.] 2005, pet. denied); Hickman v. Adams,
35 S.W.3d 120, 124 (Tex. App.—Houston [14th Dist.] 2000, no pet.). However, if the error resulting in the
dismissal of an inmate’s suit cannot be remedied, as is this case here, a dismissal with prejudice is proper.
See Nabelek, 290 S.W.3d at 233 (citing Hickman, 35 S.W.3d at 124); see also Mitchell v. Dretke, No. 10-08-
00173-CV, 2010 Tex. App. LEXIS 7606, at *5 (Tex. App.—Waco Sept. 15, 2010, no pet.) (mem. op.)
(concluding that an inmate’s failure to timely file his suit and comply with section 14.005 of the civil
practice and remedies code cannot be remedied; thus, “dismissal with prejudice was not error”) (citing
Wolf v. Tex. Dep’t of Criminal Justice—Inst. Div., 182 S.W.3d 449, 450-51 (Tex. App.—Texarkana 2006, pet.
denied). Because appellant failed to timely file his lawsuit in compliance with section 14.005 and because
this error cannot be remedied, we conclude that the trial court did not abuse its discretion in dismissing
appellant’s suit with prejudice. See Nabelek, 290 S.W.3d at 233; Hickman, 35 S.W.3d at 124; Wolf, 182

Hutchinson v. TDCJ-ID, et al                                                                           Page 10
                                             V. CONCLUSION

         Having overruled both of appellant’s issues, we affirm the judgment of the trial

court.



                                                AL SCOGGINS
                                                Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed July 13, 2011
[CV06]




S.W.3d at 450-51; see also Mitchell, 2010 Tex. App. LEXIS 7606, at *5. We, therefore, overrule appellant’s
sub-issue to issue two.

Hutchinson v. TDCJ-ID, et al                                                                      Page 11
