                                                                                         ACCEPTED
                                                                                     12-14-00332-CV
                                                                        TWELFTH COURT OF APPEALS
                                                                                      TYLER, TEXAS
                                                                               8/18/2015 11:54:20 AM
                                                                                       CATHY LUSK
                                                                                              CLERK


                       No. 12-14-00332-CV
                                                RECEIVED IN
                In the Court of Appeals 12th TYLER,
                                               COURT OF APPEALS
                                                       TEXAS
           for the Twelfth District of Texas
                                          8/18/2015 11:54:20 AM
                                               CATHY S. LUSK
                    At Tyler, Texas                Clerk


                ___________________________________

                            ROBERT C. MORRIS,                         8/18/2015
                               Appellant,
                                   v.
     SHERRI MILLIGAN, BRYAN GORDY, & CHRISTY HOISINGTON,
                          Appellees.
            ____________________________________
           On Direct Appeal from the 349th Judicial District
                  Court of Anderson County, Texas
                  Trial Court Cause No. 349-6270
            ____________________________________

                        APPELLEES’ BRIEF
              ____________________________________

KEN PAXTON                                 VERONICA L. CHIDESTER*
Attorney General of Texas                  Assistant Attorney General

CHARLES E. ROY                             OFFICE OF THE ATTORNEY
First Assistant Attorney General           GENERAL
                                           P.O. Box 12548
JAMES E. DAVIS                             Austin, Texas 78711-2548
Deputy Attorney General                    Tel: (512) 463-2080
for Civil Litigation                       Fax: (512) 936-2109

KAREN D. MATLOCK                           Counsel for Appellees
Chief, Law Enforcement                     *Attorney-In-Charge
Defense Division

                  ORAL ARGUMENT NOT REQUESTED
                          IDENTITY OF PARTIES & COUNSEL

Appellant:

Robert C. Morris TDCJ No. 1311083
TDCJ – Smith Unit
1313 CR 19
Lamesa, Texas 79331
Plaintiff Pro Se

Appellees:

Sherri Milligan, Bryan Gordy, & Christy Hoisington
Beto Unit
1391 FM 3328
Tennessee Colony, Texas 75880

Attorney for Appellees:

Veronica L. Chidester
Assistant Attorney General
State Bar No. 24082161
Law Enforcement Defense Division
P. O. Box 12548, Capitol Station
Austin, Texas 78711
(512) 463-2080 / (512) 936-2109 Fax




                                       ii
                              TABLE OF CONTENTS
                                                                               Page

Identity of Parties and Counsel…………………………………………………….ii

Table of Contents ………………………………………………………………....iii

Index of Authorities………………………………………………………………..v

Statement of the Case………………………………………………………………1

Issues Presented………………………………………………………………….....2

   I.   Whether the court below abused its discretion in dismissing Appellant’s
        claim for failure to comply with § 14.004 of the Texas Civil Practice and
        Remedies Code in light of the fact that a trial court does not abuse its
        discretion if it reaches the right result, even where that result is based on
        upon an incorrect legal conclusion.…………………………....................2

  II.   Whether the record supports dismissal of Appellant’s suit for failure to
        comply with § 14.005 by not properly exhausting all administrative
        remedies prior to filing suit………………………………………………2


Statement of Facts………………………………………………………………......2

Summary of the Argument………………………………………………………….3

Standard of Review………………………………………………………………....3

Argument…………………………………………………………………………....4

   1.   The court below did not abuse its discretion in dismissing Appellant’s
        claim because even a decision based on an incorrect legal conclusion
        is justified when the record supports the decision on other proper
        grounds.……………………………………………………………………….4

   2.   Appellant Morris failed to comply with § 14.005 by not properly
        exhausting all administrative remedies prior to filing suit.……………5


                                        iii
Conclusion………………………………………………………………………….8

Notice of Electronic Filing...……………………………………………………....10

Certificate of Compliance………………………………………………………….10

Certificate of Service……………………………………………………………....10




                           iv
                                       INDEX OF AUTHORITIES

Cases                                                                                                               Page

Craddock v. Sunshine Bus Lines,
 133 S.W.2d 124, 126 (1939) ............................................................................... 3

Hawthorne v. Guenther,
 917 S.W.2d 924, 931 (Tex.App.-Beaumont 1996, writ denied)........................... 4

Hickson v. Moya,
 926 S.W.2d 397, 398 (Tex. App.—Waco 1996, no writ) .................................... 3

Jones v. Strayhorn,
  159 Tex. 421, 321 S.W.2d 290 (1959). ............................................................3, 4

Leachman v. Dretke,
  261 S.W.3d 297, 310-11 (Tex.App.—Ft. Worth, 2008) .....................................6, 8

Lilly v. Northrep,
  100 S.W.3d 335, (Tex.App.—San Antonio, 2002) ................................................ 8

Luxenberg v. Marshall,
 835 S.W.2d 136, 141–42 (Tex.App.-Dallas 1992, no writ)) ................................. 4

Riddle v. TDCJ-ID,
  13-05-054-CV, 2006 WL 328127 (Tex. App.—Corpus Christi Feb. 9, 2006, pet.
  denied) ................................................................................................................ 6

Sells v. Drott,
  259 S.W.3d 194, 198 (Tex. App.—Tyler 2007) .................................................... 3

Wendell v. Asher,
 162 F.3d 887, 891 (5th Cir. 1998) ...................................................................... 6


                                                             v
Wilson v. Dewitt,
 05-04-00666-CV, 2006 WL 2257700, at *3 (Tex. App.—Dallas Aug. 8, 2006, no
 pet.) .................................................................................................................... 4

Woodford v. Ngo,
 548 U.S. 81, 90-91(2006) .................................................................................... 6


Rules, Codes, and Statutes

TEX. CIV. PRAC. & REM. CODE § 14.004 ....................................................... passim
TEX. CIV. PRAC. & REM. CODE § 14.005 ................................................... passim
TEX. CIV. PRAC. & REM. CODE § 14.005(b) ............................................................ 7




                                                             vi
                                ROBERT C. MORRIS,
                                   Appellant,
                                          v.
             SHERRI MILLIGAN, BRYAN GORDY, & CHRISTY HOISINGTON,
                                  Appellees.
                    ____________________________________
                 On Direct Appeal from the 349th Judicial District
                        Court of Anderson County, Texas
                           Trial Court Cause No. 6270
                  ____________________________________

                             APPELLEES’ BRIEF
                   ____________________________________

TO THE HONORABLE JUSTICES OF THE TWELFTH COURT OF APPEALS,
TYLER:
      Appellees Sherri Milligan, Bryan Gordy, & Christy Hoisington, through the

Office of the Attorney General, submit this brief in support of the trial court’s

judgment dismissing this case. Appellees ask this Court to affirm the lower court’s

dismissal.

                             STATEMENT OF THE CASE

      Appellant, Robert C. Morris, proceeding pro se and in forma pauperis, filed

suit in the 349th Judicial District Court of Anderson County, Texas. C.R. at 6. During

the time of the events giving rise to his lawsuit, Appellant was an inmate housed at

the Beto Unit of the Texas Department of Criminal Justice (“TDCJ”) in Tennessee

Colony, Texas. C.R. at 6. On January 29, 2009, Appellant filed his Original Petition



                                          1
naming Sherri Milligan, Bryan Gordy, & Christy Hoisington as Defendants. C.R. at

6-7.

       Appellees answered and filed a motion to dismiss pursuant to Chapter 14. C.R.

at 30 & 69. On October 23, 2014, the Honorable Judge W. Edwin Denman granted

Appellees’ motion to dismiss and issued a final judgment dismissing the case. C.R.

at 109. On November 6, 2014, Appellant filed his Notice of Appeal. C.R. at 114.

                                  ISSUE PRESENTED

 I.    Whether the court below abused its discretion in dismissing Appellant’s claim
       for failure to comply with § 14.004 of the Texas Civil Practice and Remedies
       Code in light of the fact that a trial court does not abuse its discretion if it
       reaches the right result, even where that result is based on upon an incorrect
       legal conclusion.

II.    Whether the record supports dismissal of Appellant’s suit for failure to
       comply with § 14.005 by not properly exhausting all administrative remedies
       prior to filing suit

                               STATEMENT OF FACTS

       Appellant alleges claims of confiscation and destruction of property.

Specifically, Plaintiff alleges his property was lost or destroyed during a lock-down

of the prison. C.R. at 7-8. Appellant seeks compensatory and nominal damages. C.R.

at 9-10. Plaintiff also seeks $600 from each Defendant in punitive damages. Id.

       Appellant’s suit was dismissed for failure to comply with Chapter 14 of the

Texas Civil Practice and Remedies Code. C.R. at 109.




                                           2
                           SUMMARY OF THE ARGUMENT

      The record supports the trial court’s judgment in dismissing Appellant’s suit

pursuant to Chapter 14. Appellant failed to comply with § 14.005 of the Texas Civil

Practice and Remedies Code by not properly exhausting all administrative remedies

before filing suit. The court below did not abuse its discretion and the judgment

should be affirmed.

                               STANDARD OF REVIEW

      An appellate court should review the dismissal of a suit pursuant to Chapter

14 for an abuse of discretion. Hickson v. Moya, 926 S.W.2d 397, 398 (Tex. App.—

Waco 1996, no writ). “Abuse of discretion is determined by whether the court acted

without reference to any guiding principles.” Id. (citing Craddock v. Sunshine Bus

Lines, 133 S.W.2d 124, 126 (1939)). “The mere fact or circumstance that a trial

judge may decide a matter within his discretionary authority in a manner different

from what an appellate judge would decide if placed in a similar circumstance does

not demonstrate that an abuse of discretion has occurred.” Jones v. Strayhorn, 159

Tex. 421, 321 S.W.2d 290 (1959).

      Even though a trial court gives an incorrect legal reason for its decision, the

trial court's assignment of a wrong reason is not automatically reversible error. Sells

v. Drott, 259 S.W.3d 194, 198 (Tex. App.—Tyler 2007) review granted, judgment

rev'd on other grounds, 259 S.W.3d 156 (Tex. 2008) (citing Hawthorne v. Guenther,


                                          3
917 S.W.2d 924, 931 (Tex.App.-Beaumont 1996, writ denied); Luxenberg v.

Marshall, 835 S.W.2d 136, 141–42 (Tex.App.-Dallas 1992, no writ)).

                                     ARGUMENT

 1.   The court below did not abuse its discretion in dismissing Appellant’s
      claim because even a decision based on an incorrect legal conclusion is
      justified when the record supports the decision on other proper grounds.

       On the record on appeal, the trial court could conclude that Appellant Morris

failed to submit a certified copy of his inmate trust account and failed to exhaust

administrative remedies before filing suit. Although the trial court dismissed

Appellant’s claim based on failure to provide an affidavit or unsworn declaration

relating to previous filings which complied with § 14.004 of the Texas Civil Practice

and Remedies Code, the record on appeal reflects other grounds which provide a

proper basis for dismissal.

      Even where a trial court gives an incorrect legal reason for its decision, the

trial court’s assignment of a wrong reason is not automatically reversible error. Sells,

259 S.W.3d at 198 (citations omitted). A trial court does not abuse its discretion if it

reaches the right result, even where that result is based upon an incorrect legal

reason. Id. Thus, “review of the trial court’s order focuses on the result and not the

trial court’s reasoning . . .” Wilson v. Dewitt, 05-04-00666-CV, 2006 WL 2257700,

at *3 (Tex. App.—Dallas Aug. 8, 2006, no pet.).




                                           4
      The trial court dismissed Appellant Morris’ suit for failure to provide an

affidavit or unsworn declaration relating to previous filings which complied with §

14.004 of the Texas Civil Practice and Remedies Code. However, as Appellant

points out in his brief, Appellant did in fact attach a declaration of previous filings

to his Original Complaint. C.R. at 11.The declaration complied with the

requirements of Chapter 14 by identifying the style, cause number, parties, and

operative facts of previous suits. Id. As a result, the trial court was not correct in

reasoning that Appellant had not complied with § 14.004.

      However, the record reflects Appellant’s failure to properly exhaust all

administrative remedies prior to filing suit, as required by § 14.005 of the Texas

Civil Practice and Remedies Code. The record supports a proper basis for dismissal

of Appellant Morris’ suit, even though those reasons were not expressed in the trial

court’s order.

 2.   Appellant Morris failed to comply with § 14.005 by not properly
      exhausting all administrative remedies prior to filing suit.

      Appellant Morris failed to properly exhaust his claims against Appellees

Gordy Hoisington, and Milligan by not providing notice of his claims in both his

Step 1 and Step 2 TDCJ grievances. Under Chapter Fourteen, an inmate who files

any claim subject to the administrative grievance procedure within the TDCJ, must

exhaust all administrative remedies prior to filing suit. Failure to exhaust all



                                          5
administrative remedies requires a court to dismiss the suit. TEX. CIV. PRAC. &

REM. CODE § 14.005.

      TDCJ currently provides a “two-step procedure for presenting administrative

grievances.” Wendell v. Asher, 162 F.3d 887, 891 (5th Cir. 1998). Prisoners begin

the administrative grievance procedure by filing a Step 1 grievance. Id. If the

prisoner is dissatisfied with the response to the Step One grievance, they may appeal

the Step One grievance by filing a Step 2 grievance. Id. For purposes of Chapter 14,

the exhaustion of administrative remedies requirement “requires the proper

exhaustion of remedies.” Leachman, 261 S.W.3d at 310-11; see also Woodford v.

Ngo, 548 U.S. 81, 90-91(2006) (“Proper exhaustion demands compliance with an

agency's deadlines and other critical procedural rules because no adjudicative system

can function effectively without imposing some orderly structure on the course of

its proceedings.”). Proper exhaustion requires both the timely filing of grievances

and exhaustion as to all claims and all parties. Id.; see also Riddle v. TDCJ-ID, 13-

05-054-CV, 2006 WL 328127 (Tex. App.—Corpus Christi Feb. 9, 2006, pet. denied)

      In his affidavit of exhaustion of remedies, Appellant Morris states that he

exhausted his administrative remedies by filing a Step 1 grievance on November 12,

2008, and a Step 2 grievance on December 1, 2008. C.R. at 12. However, Appellant

failed to file a Step 1 grievance against Appellee Gordy. Appellant failed to file a




                                         6
Step 2 grievance against Appellee Milligan. Further, Appellant failed to file any

grievance whatsoever against Appellee Hoisington.

      Appellant failed to mention Appellee Gordy or Hoisington in his Step 1

grievance. In the Step 1 grievance, Appellant complains that Appellee Milligan

wrongly confiscated and destroyed some of his property, but never mentions

Appellees Gordy or Hoisington. Since Appellant brings claims against Appellees

Gordy and Hoisington, Appellant was required to file a Step 1 grievance addressing

his complaints against them. Since Appellant failed to file a Step 1 grievance against

Appellees Gordy and Hoisington, Appellant has not exhausted his claims against

Gordy and Hoisington as required by §14.005. Thus, the record support dismissal of

claims against Appellees Gordy and Hoisington.

      Appellant failed to mention Appellee Hoisington or Milligan in his Step 2

grievance also. In the Step 2 grievance, Appellant complained that Appellee Gordy

did not address all of the claims raised in Appellant’s Step 1 grievance. Appellant

then described the points that he believed Appellee Gordy failed to address with

Gordy’s Step 1 response, but failed to mention Appellee Hoisington or Milligan.

Rather than alerting the Step 2 grievance officials about Appellee Milligan’s

allegedly wrongful conduct, Appellant instead complains that Appellee Gordy’s

investigation was inadequate. Consequently, this Step 2 is insufficient to exhaust

any claims against Appellee Hoisington or Milligan.


                                          7
      To satisfy the exhaustion requirement of §14.005, an inmate must file both a

Step 1 and Step 2 grievance against each party. Leachman v. Dretke, 261 S.W.3d

297, 311 (Tex.App.—Ft. Worth, 2008). Moreover, every claim that an inmate brings

against a defendant must have been raised in both the Step 1 and Step 2 portions of

the TDCJ grievance. Id. If an inmate fails to fulfill the procedural requirements for

inmate litigation, the Court must dismiss the inmate’s suit. Lilly v. Northrep, 100

S.W.3d 335, (Tex.App.—San Antonio, 2002).

      In this case, Appellant failed to file a Step 1 grievance against Appellee

Gordy, a Step 2 grievance against Appellee Milligan, and any grievance against

Appellee Hoisington. Thus, the record supports a proper basis for dismissal based

on Appellant Morris’ failure to properly exhaust as to each Appellee.

                                 CONCLUSION

      The trial court did not abuse its discretion in dismissing Appellant’s suit

pursuant to Chapter 14. The judgment should be affirmed.



                                       Respectfully submitted,

                                       KEN PAXTON
                                       Attorney General of Texas

                                       CHARLES E. ROY
                                       First Assistant Attorney General

                                       JAMES E. DAVIS
                                       Deputy Attorney General for Civil Litigation


                                         8
KAREN D. MATLOCK
Assistant Attorney General
Chief, Law Enforcement Defense Division

/s/ Veronica Chidester
VERONICA CHIDESTER
Assistant Attorney General
Attorney-in-Charge
State Bar No.24082161

P. O. Box 12548, Capitol Station
Austin, Texas 78711
(512) 463-2080 / (512) 936-2109 Fax
Veronica.Chidester@texasattorneygeneral.gov

ATTORNEYS FOR APPELLEES




  9
                         NOTICE OF ELECTRONIC FILING

       I, VERONICA L. CHIDESTER, Assistant Attorney General of Texas, do hereby
certify that I have electronically submitted for filing, a true and correct copy of the above
and foregoing Brief in accordance with the electronic filing system for the Twelfth Court
of Appeals on this the 18th day of August, 2015.
                                          /s/ Veronica L. Chidester
                                          VERONICA L. CHIDESTER
                                          Assistant Attorney General


                       RULE 9.4(I) CERTIFICATE OF COMPLIANCE

       I certify that this computer-generated document, accounting for Rule 9(i)(1)’s
inclusions and exclusions, is 1,657 words, as calculated by Microsoft Word 2010, the
computer program used to prepare this document.
                                          /s/ Veronica L. Chidester
                                          VERONICA L. CHIDESTER
                                          Assistant Attorney General


                                CERTIFICATE OF SERVICE

       I, VERONICA L. CHIDESTER, Assistant Attorney General of Texas, certify that
a true and correct copy of the above and foregoing BRIEF OF APPELLEES has been
served by placing it in the United States Mail, postage prepaid, on August 18, 2015,
addressed to:
Robert C. Morris, TDCJ No. 1311083
TDCJ – Smith Unit
1313 Cr 19
Lamesa, Texas 79331
Plaintiff Pro Se

                                          /s/ Veronica L. Chidester
                                          VERONICA L. CHIDESTER
                                          Assistant Attorney General


                                             10
