                                   NO. 07-11-00055-CV

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL A

                                    AUGUST 16, 2011


                            PERRY JOHNSON, APPELLANT

                                             v.

                        LISA A. CONNER, ET AL., APPELLEES


             FROM THE 69TH DISTRICT COURT OF HARTLEY COUNTY;

                    NO. 4622-H; HONORABLE RON ENNS, JUDGE


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                               MEMORANDUM OPINION


       Appellant, Perry Johnson, an inmate proceeding pro se, sued Texas Department

of Criminal Justice (TDCJ) officials, Lisa A. Conner and Sandra Murphy, alleging their

actions deprived him of his constitutional right to due process of law. The trial court

dismissed his claims against Conner and Murphy on the basis that those claims were

frivolous. He maintains the trial court abused its discretion by so finding. We will affirm.
                              Factual and Procedural History


       According to Johnson, he was convicted of a disciplinary violation in case

number 2010026065.       At some point after the decision was rendered in that case,

Johnson listened to a recording of that hearing.         He understood the timetable for

appealing that decision to permit him to appeal the conviction by filing a grievance

within fifteen days of listening to the recording. He says that he attempted to appeal his

disciplinary conviction by filing grievance number 2010182233.             According to his

petition, his attempted appeal was returned to him unprocessed.


       Johnson filed suit alleging that Conner, unit grievance investigator at the Dalhart

Unit, and Murphy, administrator of the TDCJ Offender Grievance Program, interpreted

and applied the TDCJ policy in such a way as to deprive him of due process of law.

The trial court dismissed his appeal as frivolous, which, on appeal, Johnson contends

was an abuse of discretion.


                         Applicable Law and Standard of Review


       Chapter 14 of the Texas Civil Practice and Remedies Code applies to an

inmate’s suit in which an affidavit or unsworn declaration of inability to pay costs is filed

by the inmate. See TEX. CIV. PRAC. & REM. CODE ANN. § 14.002 (West 2002). Among

the several grounds on which a trial court may dismiss such a suit is the finding that the

inmate’s suit is frivolous or malicious.      See id. § 14.003(a)(2) (West 2002).           In

determining whether a claim is frivolous or malicious, the 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
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of the claim, or (4) the claim is substantially similar to a previous claim filed by the

inmate because the claim arises from the same operative facts. Id. § 14.003(b). A

claim has no arguable basis in law if the inmate has failed to exhaust his administrative

remedies. Hamilton v. Williams, 298 S.W.3d 334, 339–40 (Tex.App.—Fort Worth 2009,

pet. denied) (citing Leachman v. Dretke, 261 S.W.3d 297, 311 (Tex.App.—Fort Worth

2008, no pet.), and Retzlaff v. Tex. Dep’t of Crim. Justice, 94 S.W.3d 650, 653

(Tex.App.—Houston [14th Dist.] 2002, pet. denied)). If an inmate fails to exhaust his

administrative remedies, we may affirm a dismissal even if that ground was not

presented in a motion to dismiss. Id. at 340 (citing Retzlaff, 94 S.W.3d at 653).


       We review a trial court’s dismissal of a lawsuit brought by an inmate who had

filed an affidavit or declaration of inability to pay costs for an abuse of discretion. In re

Douglas, 333 S.W.3d 273, 293 (Tex.App.—Houston [1st Dist.] 2010, pet. denied).

Under this standard of review, the appellant inmate must show that the trial court’s

action was arbitrary or unreasonable in light of all the circumstances in the case. Id.

While, generally, we review a dismissal of inmate litigation under Chapter 14 for an

abuse of discretion, we review de novo the specific question whether there was an

arguable basis in law for an inmate’s claims. Id.


                                          Analysis


       Johnson maintains that the trial court abused its discretion by dismissing his suit.

In four sub-issues, he presents two bases for his contention: (1) the trial court could not

have granted the Office of the Attorney General’s “advisory” because the Office of the

Attorney General (OAG) identified itself as amicus curiae in the litigation, and (2) the

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trial court abused its discretion when it concluded that Johnson’s suit was frivolous due,

in part, to the trial court’s misinterpretation of the relief he requested.


OAG as Amicus Curiae


       Johnson contends that the trial court did not have the authority to dismiss his

claim based on the “advisory” submitted to the trial court by the OAG. He maintains

that, because the OAG identified itself as amicus curiae, the trial court could not have

acted on its “advisory.” From the combined answer and motion to dismiss or “advisory,”

it is unclear the OAG’s intended role. The OAG did identify itself as amicus curiae, but

then it goes on to identify the document as defendant’s answer and motion to dismiss

and signs the document as “Attorney for Defendants.”


       As Johnson ably points out, a true amicus curiae is without interest in the

proceeding in which it appears. See In re Wingfield, 171 S.W.3d 374, 381 (Tex.App.—

Tyler 2005, orig. proceeding) (citing Burger v. Burger, 298 S.W.2d 119, 120–21 (Tex.

1957)). An amicus curiae is a “bystander” whose mission is to aid the court, to act only

for the benefit of the court. Id. An amicus curiae is a person or entity “who is not a

party to a lawsuit but who petitions the court or is requested by the court to file a brief in

the action because that person has a strong interest in the subject matter.” BLACK’S LAW

DICTIONARY 98 (9th ed. 2009).


       The OAG had the statutory authority, if not the duty, to represent Conner and

Murphy, as public servants. See TEX. CIV. PRAC. & REM. CODE ANN. § 104.004 (West

2011); Mason v. Wood, 282 S.W.3d 189, 192 (Tex.App.—Beaumont 2009, no pet.). If

the OAG filed the combined answer and motion in furtherance of such representation,
                                               4
then the trial court could have granted the motion to dismiss. If, on the other hand, the

OAG was acting as amicus curiae, then the trial court could have entertained the issues

it raised as friend of the trial court. See Mason, 282 S.W.3d at 191 (concluding that trial

court could consider issues raised in OAG’s “advisory,” filed as amicus curiae per trial

court’s order, but ultimately observing that OAG’s submission was, in fact, an answer

and motion to dismiss on behalf of defendants). So, the trial court could have granted a

motion to dismiss filed by the OAG on behalf of a defendant, and it could have

entertained issues or questions raised by the OAG as friend of the court. However,

neither scenario must necessarily present itself to invest the trial court with the authority

to dismiss Johnson’s claims.


       The trial court’s exercise of its discretionary power to dismiss sua sponte under

Chapter 14 does not depend on a defendant filing a motion to dismiss. See Gross v.

Carroll, 339 S.W.3d 718, 722 (Tex.App.—Houston [1st Dist.] 2011, no pet.) (citing TEX.

CIV. PRAC. & REM. CODE ANN. § 14.003(a)); Wilson v. TDCJ-ID, 107 S.W.3d 90, 92 (Tex.

App.—Waco 2003, no pet.) (citing McCollum v. Mt. Ararat Baptist Church, 980 S.W.2d

535, 537 (Tex.App.—Houston [14th Dist.] 1998, no pet.)). Simply put, without regard to

the motion to dismiss or “advisory,” the trial court had the authority to dismiss Johnson’s

claims as frivolous. Any error associated with considering the OAG’s submission after it

identified itself as amicus curiae would not have caused the rendition of an improper

judgment. See TEX. R. APP. P. 44.1(a).


       While it initially strikes us as curiously inconsistent that the OAG would identify

itself as amicus curiae in the trial court at the same time it purported to represent one of

                                             5
the defendants, we note that the instant case presents a situation in which the trial court

has been granted specific authority to dismiss an inmate’s litigation under Chapter 14

either before or after service and on a party’s motion or the trial court’s own motion.

See TEX. CIV. PRAC. & REM. CODE ANN. § 14.003(a), (c).           With that, we need not

determine the precise capacity in which the OAG participated in this litigation or the

propriety of considering anything submitted by the OAG in such capacity. Regardless of

the capacity in which the OAG appeared before the trial court, the trial court was

authorized to dismiss Johnson’s suit as frivolous.


The Trial Court’s Determination that Claims Were Frivolous


       According to Johnson’s petition, he was found to have committed a disciplinary

violation in disciplinary case number 2010026065. Under his interpretation of TDCJ

policy, he had fifteen days after he listened to the recording of the hearing in that case

to appeal his disciplinary conviction. Based on that interpretation, Johnson sought to

appeal his disciplinary conviction in case number 2010026065 by filing grievance

number 2010182233. But, he claims, according to TDCJ’s application of the policy, his

attempted appeal was returned to him unprocessed as untimely. Johnson claims that

Conner and Murphy persisted in their misinterpretation and misapplication of TDCJ

policy and, in doing so, denied him due process of law by depriving him of his ability to

appeal his disciplinary conviction in case number 2010026065.


       Johnson has failed to establish that he exhausted his administrative remedies

with respect to the factual basis for his allegations. See TEX. CIV. PRAC. & REM. CODE

ANN. § 14.005(a) (West 2002). In his claims against Conner and Murphy, Johnson

                                            6
maintains that he was denied the right to appeal the disciplinary conviction in case

number 2010026065 by TDCJ official’s “refusal to process” his grievance number

2010182233. Included in the record before us are a number of completed grievance

forms and correspondence advancing Johnson’s interpretation of TDCJ policy in

relation to those grievances. However, we do not find in the record any copy of the

grievance at issue, number 2010182233.


      An inmate may not file a claim in state court regarding operative facts for which

the TDCJ grievance system provides the exclusive administrative remedy until the

inmate receives a written decision issued by the highest authority provided for in the

grievance system, or the 180th day after the date the grievance is filed, if the inmate

has not received a written decision. TEX. GOV’T CODE ANN. § 501.008(d) (West 2004).

An inmate who files a claim that is subject to the grievance system must file an affidavit

stating the date a grievance was filed and the date a written decision was received,1

along with a copy of the written decision. See TEX. CIV. PRAC. & REM. CODE ANN. §

14.005(a); Bishop v. Lawson, 131 S.W.3d 571, 574 (Tex.App.—Fort Worth 2004, pet.

denied). If the inmate fails to file a claim within thirty-one days of receiving a final

decision from the grievance system, the trial court must dismiss the suit.          Id. §

14.005(b); Wolf v. Tex. Dep’t of Crim. Justice, 182 S.W.3d 449, 450 (Tex.App.—

Texarkana 2006, pet. denied).



      1
        We note that Johnson’s affidavit concerning exhaustion of administrative
remedies fails to provide all of the information required by Section 14.005(a). While he
does include relevant dates regarding correspondence he alleges to have sent to
Murphy, he does not refer to any relevant dates regarding the filing or disposition of
grievance number 2010182233.
                                            7
         Here, though Johnson claims to have been denied the right to appeal case

number 2010026065, from the record neither we nor the trial court could determine

whether he sought or received a final administrative decision on the particular issues on

which he based his allegations against Conner and Murphy. Based on the information

and record provided, a court could not determine when the identified grievance was

filed, the subject matter of that grievance, and when or if there was a final administrative

ruling on the matters raised. Therefore, it was impossible for the trial court to conclude

that Johnson had exhausted his administrative remedies or had filed his lawsuit within

thirty-one days of receipt of a final administrative determination. Regardless of whether

the trial court misinterpreted the nature of the relief Johnson requested, the trial court

could have concluded that Johnson failed to establish that he exhausted his

administrative remedies.      Accordingly, the trial court did not abuse its discretion by

dismissing the suit. See Hamilton, 298 S.W.3d at 340. We overrule Johnson’s point of

error.


                                         Conclusion


         Having overruled Johnson’s point of error, we affirm the trial court’s judgment.




                                                         Mackey K. Hancock
                                                              Justice




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