                                  NO. 12-08-00468-CV

                      IN THE COURT OF APPEALS

              TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

JEFFERY BOONE,                               §              APPEAL FROM THE THIRD
APPELLANT

V.                                           §              JUDICIAL DISTRICT COURT
SHARON DIFFERENT AND
ANGELA DUGGER,
APPELLEES                                    §              ANDERSON COUNTY, TEXAS


                                 MEMORANDUM OPINION
       Jeffery Boone, an inmate in the Texas Department of Criminal Justice-Institutional
Division (ATDCJ@), proceeding pro se, filed an in forma pauperis suit against Sharon Different
and Angela Dugger (collectively AAppellees@). In one issue, Boone appeals the trial court=s order
dismissing his suit pursuant to Texas Civil Practice and Remedies Code, chapter 14. We affirm.


                                         BACKGROUND
       Boone is an inmate. While incarcerated, Boone filed a civil suit against Appellees
alleging that they are liable in tort for their refusal to accept for filing written grievances by
Boone made pursuant to Texas Government Code, section 501.008. Boone further alleged that,
by their discriminatory refusals to accept his grievances, Appellees violated his First and
Fourteenth Amendment rights under the United States Constitution. Boone also alleged that
Appellees’ refusals violated his rights pursuant to article I, sections 3 and 8 of the Texas
Constitution. Boone alleged that such violations of his rights caused him to suffer mental and
emotional distress. By his suit, Boone sought injunctive relief as well as the recovery of
compensatory and punitive damages. In conjunction with his original petition, Boone filed an
unsworn declaration of administrative remedies concerning grievances he filed and the date he
received the written decisions concerning such grievances.1
         On September 5, 2008, without conducting a hearing, the trial court found that Boone=s
suit was frivolous or malicious and dismissed it. On September 22, 2008, Boone filed a motion
to modify the trial court’s judgment. This appeal followed.


     DISMISSAL PURSUANT TO TEXAS CIVIL PRACTICE AND REMEDIES CODE, CHAPTER 14
         In his sole issue, Boone argues that the trial court improperly dismissed his suit pursuant
to Texas Civil Practice and Remedies Code, chapter 14. 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.). 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 accrues 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).
         In the instant case, the trial court found in its order of dismissal that Boone’s claim was
frivolous or malicious. We will affirm a dismissal if it was proper under any legal theory. See
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).
         Chapter 14 of the Texas Civil Practice and Remedies Code controls suits brought by an
inmate in which the inmate has filed an affidavit or unsworn declaration of inability to pay
costs.2 TEX. CIV. PRAC. & REM. CODE ANN. § 14.002(a) (Vernon 2002); Hickson, 926 S.W.2d at
398. A failure to fulfill the procedural requirements outlined in chapter 14 results in dismissal of
         1
           The grievances listed in Boone’s affidavit are those pertaining to the allegations he made in the instant
suit as opposed to the grievances he alleges were improperly not accepted for filing by Appellees.
         2
          Chapter 14 does not apply to suits brought under the Family Code. TEX. CIV. PRAC. & REM. CODE
ANN. § 14.002(b) (Vernon 2002).

                                                           2
the inmate's action. See Lilly v. Northrep, 100 S.W.3d 335, 336 (Tex. App.–San Antonio 2002,
pet. denied). Under chapter 14, a court may dismiss an inmate’s claim if it finds the claim to be
frivolous or malicious. TEX. CIV. PRAC. & REM. CODE ANN. § 14.003 (Vernon 2002). A claim is
frivolous if it has no basis in law or fact. See id.
        Chapter 14 further 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.

        (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 (Vernon 2002). In his unsworn declaration, Boone
stated that he filed a step 1 grievance on September 15, 2007 and received the response to that
grievance on November 1, 2007. Boone further declared that he filed a step 2 grievance on
November 14, 2007 and received the response to that grievance on December 18, 2007. The file
stamp on Boone’s original petition indicates that it was filed on February 1, 2008.
        A pro se inmate’s claim under section 14.004 is deemed filed at the time the prison
authorities duly receive the document to be mailed. See Warner v. Glass¸ 135 S.W.3d 681, 684
(Tex. 2004). We have thoroughly reviewed the record, and nowhere in it is there any indication
when prison authorities received Boone’s pleadings to be mailed. Although Boone dated his
original petition beneath his signature, Boone’s original petition contains no reference to the date
on which it was deposited in the TDCJ mail system. There is no declaration in any of Boone’s
pleadings concerning this critical date. Boone’s motion to modify the trial court’s judgment
makes no reference to the date on which his original petition was received by prison authorities
for mailing, nor does Boone make any argument concerning the timeliness of its filing. Finally,
Boone’s brief on appeal is silent concerning this date; Boone has made no argument to this court
concerning the timeliness of filing his petition.
        Section 14.005(b) clearly states that a trial court shall dismiss a claim if the inmate fails
                                                  3
to file it before the thirty-first day after the inmate receives the written decision from the
grievance system. See TEX. CIV. PRAC. & REM. CODE ANN. § 14.005(b). The supreme court’s
decision in Warner contains a bright line rule concerning how such a filing date is determined.
See Warner, 135 S.W.3d at 684.                 Nonetheless, there is no record evidence, allegation, or
argument on which we can rely that supports that Appellant timely filed his suit. We decline to
hold that the date set forth beneath Appellant’s signature on his original petition is evidence of
when the petition was received by the prison mail system. At most, that date indicates when
Appellant signed the pleading. Moreover, even assuming arguendo that Appellant somehow
bypassed the prison mail system and sent his pleadings to the trial court directly by U.S. mail, his
claim was not timely filed under the “mailbox rule” because it was not received within ten days
of the filing deadline.3 See TEX. R. CIV. P. 5.
         In sum, the record contains no indication of the date on which Boone’s petition was
received by the prison mail system. Boone has made no argument to the trial court or this court
concerning the timeliness of its filing. Boone’s petition was file stamped February 1, 2008,
which is more than ten days late. See TEX. CIV. PRAC. & REM. CODE ANN. § 14.005(b); TEX. R.
CIV. P. 5. Accordingly, we hold that the trial court did not abuse its discretion when it dismissed
Boone's suit. Id. Boone=s sole issue overruled.


                                                   DISPOSITION
         Having overruled Boone=s sole issue, we affirm the trial court=s order dismissing Boone=s
suit.


                                                                        SAM GRIFFITH
                                                                            Justice

Opinion delivered January 29, 2010.
Panel consisted of Worthen, C.J., Griffith, J, and Hoyle, J.




                                                    (PUBLISH)


         3
             No postmarked envelope was retained by the trial court from which we could determine a date of mailing.
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