                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-08-00173-CV

MAURICE MITCHELL,
                                                           Appellant
v.

DOUG DRETKE, ET AL,
                                                           Appellee



                          From the 278th District Court
                             Walker County, Texas
                             Trial Court No. 23,349


                          MEMORANDUM OPINION


      Appellant Maurice Mitchell, a state prison inmate, sued the Texas Department of

Criminal Justice, Institutional Division and several TDCJ officials and employees (Doug

Dretke, director of TDJC’s Institutional Division; Harman Weston, Jr., an assistant

warden; and prison officers Dorthy Johnican and Angela Henderson) under the Texas

Tort Claims Act for the loss and destruction of Mitchell’s personal property. The trial

court dismissed Mitchell’s suit as frivolous. Mitchell now appeals. We will affirm.

      Mitchell’s petition alleges that, on June 15, 2005, while he was leaving the TDCJ’s
Darrington Unit to be transferred to the Ellis Unit, Johnican, whom Mitchell had had

conflicts with and had filed grievances against, along with fellow officer Henderson,

taunted Mitchell. Johnican called him a “smart ass nigger” and told him she would go

to the property room and make sure Mitchell did not get his property. Mitchell sat on

the ground in protest and demanded that ranking officials come to the scene. Weston

and others arrived, and Mitchell complained to Weston that Johnican was going to

retaliate against him by taking his property because he had filed grievances against her.

As Johnican carried away Mitchell’s property, Weston promised Mitchell that he would

make sure Mitchell got all of his property.

        When Mitchell’s property arrived at the Ellis Unit and he received it on July 14,

2005, Mitchell’s typewriter had been broken and rendered unusable, and his bag of

commissary items and supplies and his fan were missing. Also missing was Mitchell’s

personal photo album with over 275 family photos. Mitchell alleges that Johnican, with

Henderson’s help, took or destroyed his property, and that Weston negligently trained

or supervised them. Dretke is apparently only named as a nominal defendant because

he was the director of TDJC’s Institutional Division.

        Mitchell’s Step 1 grievance was received on July 19, and, dissatisfied with the

response, he filed a Step 2 Grievance in October. The grievance response is dated

November 2, 2005. Mitchell filed suit on February 6, 2009, and the trial court dismissed

it as frivolous. Mitchell presents four issues on appeal: (1) whether the trial court

abused its discretion in denying Mitchell’s motion for default judgment, which occurred

before the dismissal; (2) whether the trial court abused its discretion in dismissing

Mitchell v. Dretke                                                                 Page 2
Mitchell’s suit because notice of Chapter 14 was not posted in the prison; (3) whether

the trial court abused its discretion in dismissing Mitchell’s suit with prejudice; and (4)

whether Mitchell has a right to re-file his suit if his suit should have been dismissed

without prejudice.

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

abuse of discretion. Brewer v. Simental, 268 S.W.3d 763, 767 (Tex. App.—Waco 2008, no

pet.). A prison inmate who files suit in a Texas state court pro se and who seeks to

proceed in forma pauperis must comply with the procedural requirements set forth in

Chapter 14 of the Civil Practice and Remedies Code. Id. (citing TEX. CIV. PRAC. & REM.

CODE ANN. §§ 14.002(a), 14.004, 14.005 (Vernon 2002)).             Failure to fulfill those

procedural requirements will result in dismissal of an inmate’s suit. Id.

       Subsection 14.005(a) mandates that an inmate who files a claim subject to the

TDCJ grievance system file an affidavit or unsworn declaration stating the date that his

grievance was filed and the date that he received the written grievance decision. Id. at

768 (citing TEX. CIV. PRAC. & REM. CODE ANN. § 14.005(a)(1)). The section also mandates

the filing of a copy of the written grievance decision. Id. (citing TEX. CIV. PRAC. & REM.

CODE ANN. § 14.005(a)(2)).      If an inmate does not strictly comply with subsection

14.005(a), a trial court does not abuse its discretion in dismissing the claim. Id.

        Mitchell adequately pleaded that he had exhausted his administrative remedies

through the prison grievance system. He also pleaded, and the Step 2 grievance shows,

that the response was dated November 2, 2007. “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

Mitchell v. Dretke                                                                    Page 3
written decision from the grievance system.” TEX. CIV. PRAC. & REM. CODE ANN. §

14.005(b).     Mitchell’s suit was filed approximately ninety days later.                      It was thus

untimely under subsection 14.005(b), and the trial court properly dismissed the suit.1

See id.; Wolf v. Texas Dep’t Crim. Just., Inst. Div., 182 S.W.3d 449, 451 (Tex. App.—

Texarkana 2006, pet. denied); see also Walp v. Hunter, No. 10-03-00019-CV, 2004 WL

444695 (Tex. App.—Waco Mar. 10, 2004, no pet.) (mem. op.). And because Mitchell

cannot cure his untimely filing of suit, dismissal with prejudice was not error. See, e.g.,

Wolf, 182 S.W.3d at 450-51.

        We overrule issues two, three, four, and given our disposition, we need not

address issue one. TEX. R. APP. P. 47.1.




        1
           Section 14.004 requires an inmate proceeding in forma pauperis to file an affidavit or unsworn
declaration that specifically identifies all other pro se lawsuits brought by the inmate. TEX. CIV. PRAC. &
REM. CODE ANN. § 14.004. A trial court may dismiss an inmate’s claim as frivolous when the inmate fails
to file such an affidavit or unsworn declaration. See Thomas v. Skinner, 54 S.W.3d 845, 847 (Tex. App.—
Corpus Christi 2001, pet. denied). Mitchell filed his affidavit of previous filings three weeks after the trial
court had dismissed his suit.

         For the first time on appeal, Mitchell claims that he had no notice of section 14.004 and that the
prison units he had been in had failed to post notice of it when it was enacted and until February 1, 2000,
when he was released from Ad-Seg. Chapter 14’s enacting legislation in 1995 required TDCJ to “post
notice of the provisions of this Act in each law library maintained by the department or under contract
with the department.” See Act of May 19, 1995, 74th Leg., R.S., ch. 378, § 9, 1995 Tex. Gen. Laws 2921,
2926-27. Mitchell claims that he was unaware of section 14.004 until the Attorney General’s office filed an
amicus curiae motion to dismiss. However, Mitchell apparently was aware that, under Chapter 14, he
was required to plead his exhaustion of the prison grievance system, and he does not explain how he was
aware of section 14.005 but not section 14.004 or why he was unable to learn of section 14.004’s existence
after he was released from Ad-Seg in 2000. Regardless, pro se litigants are presumed to know the law
and are charged with constructive knowledge of the law, irrespective of Chapter 14’s enacting
legislation’s posting provision in 1995. See Walp v. Hunter, No. 10-03-00019-CV, 2004 WL 444695, at *2
(Tex. App.—Waco Mar. 10, 2004, no pet.) (mem. op.). In any event, because this lack-of-notice claim is
being raised for the first time on appeal, Mitchell has not preserved it for appellate review. See, e.g.,
Wilson v. TDCJ-ID, 268 S.W.3d 756, 762 (Tex. App.—Waco 2008, no pet.). Finally, because Mitchell failed
to timely file suit under section 14.005 and dismissal was proper on that basis alone, the alleged failure to
post notice is harmless.

Mitchell v. Dretke                                                                                     Page 4
        The trial court’s dismissal order is affirmed.



                                                  REX D. DAVIS
                                                  Justice

Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Affirmed
Opinion delivered and filed September 15, 2010
[CV06]




Mitchell v. Dretke                                               Page 5
