Affirmed and Memorandum Opinion filed March 27, 2014.




                                       In The

                       Fourteenth Court of Appeals

                               NO. 14-12-00953-CV

                        GEORGE OLIVAREZ, Appellant
                                         V.
   TEXAS DEPARTMENT OF CRIMINAL JUSTICE CORRECTIONAL
            INSTITUTIONS DIVISION, ET AL, Appellee

                    On Appeal from the 412th District Court
                           Brazoria County, Texas
                        Trial Court Cause No. 69711I

                 MEMORANDUM                       OPINION


      Appellant George Olivarez sued the Texas Department of Criminal Justice
(the “TDCJ”) and several of its employees for breach of contract and fraud. In his
sole issue on appeal, Olivarez argues that the trial court erred when it dismissed his
lawsuit as frivolous. Because Olivarez failed to exhaust his administrative
remedies, we affirm.
      While Olivarez was an inmate at the Wayne Scott Unit in Brazoria County,
Texas, another inmate poured boiling hot water into a plastic trash container. The
container melted, and the boiling water escaped from the trash can, burning
Olivarez’s feet and ankles. In 2007, he sued the TDCJ and TDCJ employees under
42 U.S.C. § 1983 and the Texas Tort Claims Act, alleging that the TDCJ
employees were deliberately indifferent when they failed to prevent the incident.
Olivarez and the TDCJ settled the lawsuit for $500, payable to Olivarez’s Inmate
Trust Fund Account. The settlement was conditioned on the Governor’s approval,
which was to be evidenced by the issuance of a Treasury Warrant. The Texas
Comptroller did issue a treasury warrant for five hundred dollars payable to
appellant’s Inmate Trust Fund Account on January 5, 2010.

      On September 12, 2012, Olivarez sued the TDCJ and several TDCJ
employees in Brazoria County for breach of contract and fraud, alleging that the
TDCJ breached the settlement agreement, misrepresented facts about his right to
receive the payment, and failed to disclose the existence of laws that could prevent
him from receiving payment. The trial court dismissed Olivarez’s case as frivolous
without conducting a hearing. He timely appealed.

      Inmate litigation is governed by chapter 14 of the Texas Civil Practice and
Remedies Code. Under that chapter, a trial court can dismiss a claim if the trial
court finds, as it did here, that the claim is frivolous. Tex. Civ. Prac. & Rem. Code
Ann. § 14.003(a)(2) (West 2002). In making this determination, “the 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 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). Normally, we review the trial court’s decision to

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dismiss a case under chapter 14 for an abuse of discretion. Nabelek v. Dist.
Attorney of Harris Cnty., 290 S.W.3d 222, 228 (Tex. App.—Houston [14th Dist.]
2005, pet. denied); Retzlaff v. Tex. Dep’t of Criminal Justice, 94 S.W.3d 650, 654
(Tex. App.—Houston [14th Dist.] 2002, pet. denied). However, when a trial court
dismisses a case without a hearing, we can affirm only if the claim lacks an
arguable basis in law, and our review of the trial court’s decision is de novo.
Retzlaff, 94 S.W.3d at 653. A claim has no arguable basis in law if (1) it is based
on an indisputably meritless legal theory, (2) it is based on wholly incredible or
irrational factual allegations, or (3) if the inmate failed to exhaust his
administrative remedies. Nabelek, 290 S.W.3d at 228; Retzlaff, 94 S.W.3d at 653.

       Olivarez’s claim has no basis in law because he failed to exhaust his
administrative remedies. Pursuant to Texas law, the TDCJ has established a system
for resolving inmate grievances. See Tex. Gov’t Code Ann. § 501.008(a) (West
2012); Tex. Dep’t of Criminal Justice, Offender Orientation Handbook 52–54 (2004),
available at http://www.tdcj.state.tx.us/documents/Offender_Orientation_Handbook_English.pdf.
A remedy provided by the grievance system is the inmate’s exclusive remedy for
claims that arise while the inmate is housed in a facility operated by the TDCJ or
under contract with the TDCJ. Tex. Gov’t Code Ann. § 501.008(a). An inmate
cannot file a claim in state court for which the grievance system provides the
exclusive remedy until (1) the inmate receives a written decision from the highest
authority provided for in the grievance system or (2) the 180th day after the inmate
filed the grievance if the inmate has not received the requisite written decision. Id.
§ 501.008(d). An inmate who files a claim in state court that is subject to the
grievance system must file with the court an affidavit or unsworn declaration
stating (1) the date the grievance was filed and (2) the date the inmate received the
written decision. Tex. Civ. Prac. & Rem. Code Ann. § 14.005(a)(1) (West 2002).


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In addition to the requisite affidavit or unsworn declaration, an inmate must file
with the court a copy of the written decision from the grievance system. Id. §
14.005(a)(2). Tort claims and breach-of-contract claims against the TDCJ and its
employees are subject to the TDCJ’s grievance system. See Tex. Gov’t Code Ann.
§ 501.008(a) (“A remedy provided by the grievance system is the exclusive
administrative remedy available to an inmate for a claim for relief against the
department . . . .”) (emphasis added); Tex. Dep’t of Criminal Justice, Offender
Orientation Handbook 53 (“actions of an employee” and “any other matter within
the authority of the TDCJ” are subject to the Offender Grievance Procedure); see,
e.g., Retzlaff, 94 S.W.3d at 654 (upholding trial court’s dismissal of inmate’s
personal injury claim because the inmate did not allege personal injury in his
complaints before the grievance system); Loper v. Johnson, No. 09-97-00510-CV,
1998 WL 544881, at *2 (Tex. App.—Beaumont Aug. 27, 1998, pet. denied) (not
designated for publication) (upholding trial court’s dismissal of inmate’s breach-
of-contract and DTPA claims because the inmate failed to exhaust his
administrative remedies).

      Olivarez sued the TDCJ and TDCJ employees for breach of contract and
fraud while he was an inmate at a facility operated by the TDCJ. He did not allege
in his petition that he had exhausted his administrative remedies. He did not file the
affidavit or declaration required by section 14.005 of the Civil Practice and
Remedies Code, nor did he file a copy of the written decision. Based on our review
of the record, we conclude that Olivarez’s claims fall within the ambit of
Government Code section 501.008(a) and that he has failed to exhaust his
administrative remedies. As a result, Olivarez’s breach-of-contract and tort claims
have no basis in law. See Retzlaff, 94 S.W.3d at 654.



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      We overrule Olivarez’s sole issue on appeal and affirm the trial court’s
dismissal of his claims.


                                     /s/       Marc W. Brown
                                               Justice

Panel consists of Justices Boyce, Christopher, and Brown.




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