                              NUMBER 13-08-420-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


JEFFERY LEE HOYLE,                                                           Appellant,

                                           v.

RONALD FERRELL, ET AL.,                                                     Appellees.


                   On appeal from the 156th District Court
                           of Bee County, Texas


                         MEMORANDUM OPINION

                   Before Justices Yañez, Garza, and Vela
                   Memorandum Opinion by Justice Vela

      Appellant, Jeffery Lee Hoyle, appearing pro se and in forma pauperis, appeals an

order of the trial court dismissing his case for failing to comply with the procedural

requirements of chapter 14 of the Texas Civil Practice and Remedies Code. By one issue,

Hoyle argues that the trial court erred in dismissing his case with prejudice. We affirm.
                                       I. BACKGROUND

       Hoyle is serving a ninety-nine year sentence at the McConnell Unit of the Texas

Department of Criminal Justice. He filed suit against Ronald Ferrell and James Fitts

alleging that he was improperly denied dentures. Hoyle urged that the defendants, who

are a physician and a dentist, provided inadequate medical care and assessment of his

medical condition, failed to provide him with appropriate pain relief, and failed to implement

and maintain programs to develop staff skills. Appellees, through the office of the Attorney

General, filed a motion to dismiss, asserting that Hoyle failed to comply with chapter 14 of

the Texas Civil Practice and Remedies Code. TEX . CIV. PRAC . & REM . CODE ANN . § 14.001-

.014 (Vernon 2002). Specifically, the motion urges that Hoyle did not comply with the filing

requirements of sections 14.004, 14.005 or 14.006 of the Texas Civil Practice and

Remedies Code. Id. §§ 14.004; 14.005(a),(b); 14.006(f).

       The trial court held a hearing at which Hoyle appeared by telephone. At that

hearing, counsel for appellees informed the court that Hoyle did not file an affidavit

documenting previous lawsuits he had filed as required by the statute. See id. § 14.004.

Counsel also asserted that Hoyle failed to file his lawsuit prior to the 31st day after the date

Hoyle received his written decision from the grievance system. See id. § 14.005(b). Hoyle

told the trial court that he had not received his Step 2 grievance response until January 8,

2008, after the deadline for filing a claim under section 14.005(b). Counsel for appellees

noted that Hoyle made no complaint in his pleadings that he failed to receive his copy of

the Step 2 grievance response until January 8. Hoyle also presented no evidence that he

had not received his response until January. Hoyle attached his Step 2 grievance form to

his petition. There is, however, no affidavit or unsworn declaration stating the date the

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grievance was filed and the date the written decision was received. Appellees urged in

their motion and at the hearing that the Step 2 grievance was signed on October 22, 2007.

Hoyle did not dispute that it was signed on that date. The evidence is undisputed that

Hoyle did not file his lawsuit until January 18, 2008. The trial court found that Hoyle failed

to comply with chapter 14's prerequisites.

                                   II. STANDARD OF REVIEW

       The standard of review for dismissal of a suit brought by an inmate under the statute

governing inmate litigation is whether the trial court abused its discretion. Thomas v.

Knight, 52 S.W.3d 292, 294 (Tex. App.–Corpus Christi 2001, pet. denied). A trial court

abuses its discretion if it acts arbitrarily, capriciously, and without reference to guiding rules

and principles. Mercedes-Benz Credit Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex. 1996).

The fact that, under similar circumstances, an appellate court might decide a matter

differently than did the trial court does not demonstrate that an abuse of discretion has

occurred. The burden of proof rests on the appellant asserting abuse of discretion to

overcome the presumption that the action of the trial court was justified. Fed. Deposit Ins.

Co. v. Kendrick, 897 S.W.2d 476, 479 (Tex. App.–Amarillo 1995, no writ).

       Inmate litigation is governed by special procedural rules set forth in chapter 14 of

the Texas Civil Practice and Remedies Code. See TEX . CIV. PRAC . & REM .CODE ANN . §§

14.002-.014 (Vernon 2005).        The two step offender grievance program is the sole

administrative remedy for TDCJ inmates. Crain v. Prasifka, 97 S.W.3d 867, 868 (Tex.

App.–Corpus Christi 2003, pet. denied). TDCJ's system must be exhausted before an

inmate can file suit. Id.



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                                        III. ANALYSIS

       Here, Hoyle’s argument is that the trial court should not have dismissed his claim

with prejudice. An inmate must prove that he has exhausted all administrative remedies

before he is entitled to initiate an action within the court system. Wallace v. Tex. Dep’t of

Criminal Justice - Inst. Div., 36 S.W.3d 607, 610 (Tex. App.–Houston [1st Dist. 2000, pet.

denied); Smith v. Tex. Dep’t of criminal justice - Inst. Div., 33 S.W.3d 338, 340-41 (Tex.

App.–Texarkana 2000, pet. denied). Section 14.005(a) requires the inmate to file an

affidavit or unsworn declaration stating the date the grievance was filed and the date the

written decision was received. TEX . CIV. PRAC . & REM . CODE ANN . § 14.005(a). The trial

court shall dismiss a claim if the inmate fails to file the claim before the 31st day after the

date the inmate receives a written decision from the grievance system. Id. A suit that is

not timely filed pursuant to section 14.005(b) is barred and may be dismissed with

prejudice. Id. § 14.003(a); Moreland v. Johnson, 95 S.W.3d 392, 395 (Tex. App.–Houston

[1st Dist.] 2002, no pet); see also Dumas v. Tex. Dep’t of Criminal Justice - Inst. Div., No.

13-04-321-CV, 2005 WL 1797074, at *1 (Tex. App.–Corpus Christi July 28, 2005, no pet.)

(mem. op., not designated for publication).

       The burden was on Hoyle to show that he did not receive a response until January

8, 2008, as he suggested for the first time at the hearing. See Wallace, 36 S.W.3d at 610.

There was, however, no evidence before the trial court at the time of the hearing to show

that Hoyle had not been timely notified of the outcome of his Step 2 grievance. Further,

Hoyle’s error could not be remedied by amendment of his claim because he did not timely

file it within the time dictated by the statute. The trial court had no evidence before it to



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show that Hoyle did not timely receive notification of his Step 2 grievance. Because Hoyle

did not comply with the statutory requirements, we find no abuse of discretion. Hoyle’s

issue is overruled.

                                     IV. CONCLUSION

       The judgment of the trial court is affirmed.




                                                      ROSE VELA
                                                      Justice

Memorandum Opinion delivered and
filed this 30th day of October, 2008.




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