Affirmed and Memorandum Opinion filed February 16, 2012.




                                            In The

                       Fourteenth Court of Appeals

                                    NO. 14-11-00773-CV


                             KENNETH L. HILL, Appellant

                                              V.

          BRUCE SMITH M.D. AND MICHELLE LASTRAPE, Appellees


                        On Appeal from the 412th District Court
                               Brazoria County, Texas
                             Trial Court Cause No. 44666


                   MEMORANDUM                           OPINION


       This appeal arises from appellant’s suit against appellees for alleged denial of
medical treatment. The trial court granted appellees’ motion to dismiss on the ground
that appellant failed to exhaust his administrative remedies. In three issues appellant
contends the trial court (1) abused its discretion in dismissing his suit for failure to state a
claim, (2) violated the federal supremacy clause, and (3) abused its discretion in
dismissing his claim pursuant to Chapter 14 of the Civil Practice and Remedies Code.
We affirm.
                              Factual and Procedural Background

       In January, 2009, appellant filed suit against appellees alleging they violated his
rights under 42 U.S.C. § 1983 by refusing to give him a pair of custom-made orthopedic
shoes to treat a chronic condition, which causes swelling in his foot. On January 30,
2009, appellees filed a motion to dismiss pursuant to Chapter 14 of the Texas Civil
Practice and Remedies Code, on the grounds that appellant’s suit was frivolous because
appellees are entitled to qualified immunity as a matter of law.

       On August 16, 2011, the trial court sent a letter to appellant and the Assistant
Attorney General informing the parties of several decisions concerning the various
motions taken under advisement. The court noted that, on May 17, 2011, the parties
began a telephonic hearing on appellees’ motion to dismiss. At the hearing, a question
arose as to whether appellant had ever before asserted that his condition was not treated
for 41 days. Another telephonic hearing was held on July 22, 2011, at which appellant
acknowledged that he had not filed a formal grievance on his claim. The court informed
the parties at that time that it would grant the Chapter 14 motion. On September 7, 2011,
the court granted the motion to dismiss under Chapter 14. This appeal followed.

                 Chapter 14 of the Texas Civil Practice and Remedies Code

       Chapter 14 applies when, as here, an inmate files suit in a district court and files an
affidavit of indigence. See Tex. Civ. Prac. & Rem. Code Ann. § 14.002. Under Chapter
14, a trial court may dismiss an inmate’s suit for failure to comply with the chapter’s
procedural requirements; it may also dismiss a suit that is malicious or frivolous. Id. §
14.003; Hickman v. Adams, 35 S.W.3d 120, 123–24 (Tex. App.—Houston [14th Dist.]
2000, no pet.). The trial court need not rely on a defendant’s motion to exercise its
discretionary power to dismiss under chapter 14. See 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.).




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                                      Standard of Review

       We review a dismissal under chapter 14 for an abuse of discretion. Bishop v.
Lawson, 131 S.W.3d 571, 574 (Tex. App.—Fort Worth 2004, pet. denied). To determine
whether a trial court abused its discretion, we must decide whether the trial court acted
without reference to any guiding rules or principles; in other words, we must decide
whether the act was arbitrary or unreasonable. Downer v. Aquamarine Operators, Inc.,
701 S.W.2d 238, 241–42 (Tex. 1985).

       In conducting our review, we take as true the allegations in the inmate’s petition
and review the types of relief and causes of action set out therein to determine whether,
as a matter of law, the petition states a cause of action that would authorize relief. See
Scott v. Gallagher, 209 S.W.3d 262, 266 (Tex. App.—Houston [1st Dist.] 2006, no pet.).
A claim has no arguable basis in law if the inmate has failed to exhaust his administrative
remedies. Retzlaff v. Tex. Dep’t of Criminal 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 the ground was not presented in a motion to
dismiss. Tex. Civ. Prac. & Rem. Code Ann. § 14.005; Retzlaff, 94 S.W.3d at 653.

                           Exhaustion of Administrative Remedies

       Section 14.005(a) mandates that an inmate who files a claim that is 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. 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. § 14.005(a)(2). If an inmate does not strictly
comply with section 14.005(a), a trial court does not abuse its discretion in dismissing the
claim. Retzlaff, 94 S.W.3d at 653.

       A remedy provided by the statutory prison inmate grievance system is the
exclusive administrative remedy available to an inmate for a claim for relief against
TDCJ. Tex. Gov’t Code Ann. § 501.008(a). ―An inmate may not file a claim in state


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court regarding operative facts for which the grievance system provides the exclusive
administrative remedy until: (1) the inmate receives a written decision issued by the
highest authority provided for in the grievance system[.]‖ Id. § 501.008(d)(1). The
purpose of sections 14.005 and 501.008 is to allow the trial court to ensure that an inmate
proceeding in forma pauperis has first used TDCJ’s grievance procedure and has
exhausted his administrative remedies through the prison grievance system before filing
suit on the same operative facts. See Brewer v. Simental, 268 S.W.3d 763, 769 (Tex.
App.—Waco 2008, no pet.).

       The exhaustion of remedies requirement under section 501.008 of the Government
Code and section 14.005 of the Civil Practice and Remedies Code requires proper
exhaustion of remedies before an inmate may seek judicial review. Leachman v. Dretke,
261 S.W.3d 297, 310–11 (Tex. App.—Fort Worth 2008, no pet.) (following Woodford v.
Ngo, 548 U.S. 81, 83–84 (2006)).        Because appellant admitted he had not filed a
grievance, he failed to properly exhaust his administrative remedies, and therefore failed
to comply with the statutory procedural requirements as to his claims against appellees.
The trial court did not err in dismissing these claims as frivolous. See Tex. Civ. Prac. &
Rem. Code Ann. § 14.005(a); Tex. Gov’t Code Ann. § 501.008(d); Retzlaff, 94 S.W.3d at
654. Appellant’s three issues are overruled.

       The judgment of the trial court is affirmed.

                                                   PER CURIAM



Panel consists of Chief Justice Hedges and Justices Jamison and McCally.




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