                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-17-00105-CV



            JAMES J. ZARYCHTA, Appellant

                           V.

             CORNELIA GREENE, Appellee



         On Appeal from the County Court at Law
                 Walker County, Texas
               Trial Court No. 12603CV




      Before Morriss, C.J., Moseley and Burgess, JJ.
      Memorandum Opinion by Chief Justice Morriss
                                    MEMORANDUM OPINION
        James J. Zarychta, an inmate in the Texas Department of Criminal Justice (TDCJ) at the

Ellis Unit in Huntsville, Texas, appeals the dismissal of his civil lawsuit against Cornelia Greene,

the TDCJ Unit Commissary Manager, as untimely under Chapter 14 of the Texas Civil Practice

and Remedies Code.1 Because the trial court did not abuse its discretion in dismissing the lawsuit,

we affirm.

        “Generally, the dismissal of inmate litigation under Chapter 14 is reviewed for abuse of

discretion.” Mahuron v. TDCJ, 494 S.W.3d 377, 379 (Tex. App.—Waco 2015, no pet.). “A trial

court has no discretion to determine what the law is or in applying the law to the facts and,

consequently, the trial court’s failure to analyze or apply the law correctly is an abuse of

discretion.” Id. (citing In re Am. Homestar of Lancaster, Inc., 50 S.W.3d 480, 483 (Tex. 2001)

(orig. proceeding)).

        Chapter 14 of the Texas Civil Practice and Remedies Code governs all civil lawsuits,

including appeals (except for those under the Texas Family Code) brought by Texas inmates in

which the inmate files an affidavit or unsworn declaration of the inability to pay the court costs

associated with filing litigation. TEX. CIV. PRAC. & REM. CODE ANN. § 14.002 (West 2017). This

case is governed by Section 14.005, which provides, in relevant part:

                (a)    An inmate who files a claim that is subject to the grievance system
        established under Section 501.008,[2] Government Code, shall file with the court:

1
 Originally appealed to the Tenth Court of Appeals in Waco, this case was transferred to this Court by the Texas
Supreme Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (West 2013). We
follow the precedent of the Tenth Court of Appeals in deciding this case. See TEX. R. APP. P. 41.3.
2
 “Section 501.008 of the Government Code precludes an inmate from filing a claim until he has exhausted his
administrative remedies through the grievance system.” Smith v. Tex. Dep’t of Crim. Justice–Int’l Div., 33 S.W.3d

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               (1)     an affidavit or unsworn declaration stating the date that the
        grievance was filed and the date the written decision . . . 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 (West 2017).

        Zarychta filed a suit October 4, 2016, against Greene in Walker County Justice Court,

Precinct 3 (Justice Court), alleging that theft occurred August 27, 2015, when Greene allegedly

used Zarychta’s identification card to withdraw $24.90 from his inmate trust account without

consent. At that time, he did not proceed in forma pauperis, but instead paid a $41.00 filing fee

and $100.00 service fee. The Justice Court set the case for trial, but later dismissed the case with

prejudice for want of prosecution after Zarychta failed to telephonically appear.

        Zarychta appealed the Justice Court’s decision to the County Court at Law of Walker

County, Texas (County Court), for a trial de novo. See TEX. R. CIV. P. 506.3. For purposes of the

appeal, Zarychta filed an unsworn declaration of the inability to pay the court costs, and the Justice

Court certified Zarchtya to proceed in forma pauperis instead of paying the filing fee. In response

to that appeal, Green moved to dismiss Zarychta’s suit on the ground that he failed to exhaust

administrative remedies by timely filing suit.




338, 341 (Tex. App.—Texarkana 2000, pet. denied).
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        In his Section 14.005(a) affidavit, Zarychta swore to the following facts: “STEP-1

GRIEVANCE #2016014289 was filed on September 24, 2015, and signed by the Step-1 reviewing

authority on October 17, 2015. STEP-2 GRIEVANCE #2016014289 was fi1ed on October 19,

2015, and signed by the Step-2 reviewing authority on November 12, 2015.” After receiving the

written decision from the grievance system on November 12, 2015, Zarychta had thirty-one days

to file his claim. Suit in Justice Court was not filed until October 4, 2016. The County Court

dismissed Zarchtya’s claims after concluding that they were untimely under Section 14.005(b) of

the Texas Civil Practice and Remedies Code.

        On appeal, Zarychta argues that the trial court erred because he did not proceed in forma

pauperis in the Justice Court. He notes that he paid the fees associated with the Justice Court filing

and was certified to proceed in forma pauperis for purposes of appeal only after the Justice Court

entered its dismissal. Accordingly, he contends that his lawsuit was subject to only a two-year

statute of limitations, not the thirty-one-day time limit mandated by Section 14.005(b).

        Section 14.002 clarifies that Chapter 14 applies “to an action, including an appeal . . . ,

brought by an inmate in a district, county, justice of the peace, or small claims court . . . , in which

an affidavit or unsworn declaration of inability to pay costs is filed by the inmate.” TEX. CIV.

PRAC. & REM. CODE ANN. § 14.002. In Gross v. Carroll, the First Court of Appeals explained that

an inmate’s initial payment of filing fees would not allow him to circumvent the application of

Chapter 14 when he later claims indigence because such a construction “would violate the

legislative intent to improve judicial efficiency with tailored, nonpunitive procedural rules applied

to all inmate suits in which an affidavit on indigence is filed” and create a “situation in which all

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inmates would be a filing fee away from indigence, yet immune from Chapter 14.” Gross v.

Carroll, 339 S.W.3d 718, 721–22 (Tex. App.—Houston [1st Dist.] 2011, no pet.).

         Under the plain language of Section 14.002, Zarychta’s de novo appeal was governed by

Chapter 14. As the First Court of Appeals reasoned in Gross, we conclude that Zarychta’s

argument seeks to allow him to circumvent Chapter 14 and violate its legislative intent.

Accordingly, we conclude that the trial court did not abuse its discretion in dismissing Zarychta’s

lawsuit.3

         We affirm the trial court’s judgment.


                                                       Josh R. Morriss, III
                                                       Chief Justice

Date Submitted:            February 7, 2018
Date Decided:              February 14, 2018




3
 At trial, Zarychta argued that the application of Section 14.005(b) to his case violated his right to access the courts.
The trial court did not rule on this issue. On appeal, he argues that Section 14.005(b) “does not now operate equally
on all within the class.” We find these issues unpreserved. See TEX. R. APP. P. 33.1.

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