Affirmed and Memorandum Opinion filed March 28, 2006.

 

 

In The

 

Fourteenth Court of Appeals

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NO. 14-04-00821-CV

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CHARLES RAY HARDY, Appellant

 

V.

 

ARGELIO VILLEREAL and TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION, Appellees

 

 

On Appeal from the 23rd District Court

Brazoria County, Texas

Trial Court Cause No. 29,749

 

 

M EM O R A N D U M  O P I N I O N

Appellant, Charles Ray Hardy, an indigent inmate of the Texas Department of Criminal Justice, Institutional Division, appeals from an order dismissing his pro se, in forma pauperis suit against Argelio Villereal and the Texas Department of Criminal Justice.  On appeal, appellant contends (1) the trial court abused its discretion when dismissing the cause of action as frivolous or malicious, and (2) the order of dismissal is voidable.  We affirm.

We review a trial court=s decision to dismiss a lawsuit brought by an inmate under the Inmate Litigation Act, Chapter Fourteen of the Texas Civil Practice and Remedies Code, under an abuse of discretion standard.  Retzlaff v. Tex. Dept. of Criminal Justice, 94 S.W.3d 650, 654 (Tex. App.CHouston [14th Dist.] 2002, pet. denied).  A trial court abuses its discretion when it acts without reference to any guiding rules or principles.  Cire v. Cummings, 134 S.W.3d 835, 838B39 (Tex. 2004). 

When proceeding in forma pauperis, an inmate=s suit must comply with the Inmate Litigation Act as prescribed by Chapter Fourteen of the Texas Civil Practice and Remedies Code.  See Tex. Civ. Prac. & Rem. Code Ann. ' 14.002(a) (Vernon 2002).  The legislature enacted Chapter Fourteen to control the flood of frivolous lawsuits filed in Texas courts by prison inmates.  McCollum v. Mt. Ararat Baptist Church, Inc., 980 S.W.2d 535, 537 (Tex. App.CHouston [14th Dist.] 1998, no pet.).  An inmate must exhaust all administrative remedies before filing a claim with a trial court.  See Tex. Civ. Prac. & Rem. Code Ann. ' 14.005 (Vernon 2002); Sanders v. Palunsky, 36 S.W.3d 222, 226 (Tex. App.CHouston [14th Dist.] 2001, no pet.). 

Appellant included all paperwork necessary for the trial court to consider his claim with his original petition.  He included an affidavit of his previous filings in compliance with section 14.004, an affidavit of his grievances, an affidavit of his inability to pay the costs associated with the claim, and copies of his grievance forms.  See Tex. Civ. Prac. & Rem. Code Ann. '' 14.004, 14.005 (Vernon 2002).  The Inmate Litigation Act required appellant to file his petition within 31 days of the date he received the written decision from the grievance system.  See Tex. Civ. Prac. & Rem. Code Ann. ' 14.005(b) (Vernon 2002).  Appellant=s affidavit shows he received the written decision from the grievance system on May 14, 2004.  Therefore, appellant was required to file his claim by June 14. 

A pro se inmate=s petition is considered filed at the moment it is placed in a properly addressed and stamped envelope or wrapper with the prison authorities for mailing.  Warner v. Glass, 135 S.W.3d 681, 682 (Tex. 2004).  Neither the record nor appellant=s brief indicate on what date appellant=s petition was left with prison authorities for mailing.  The only indication we have as to when it may have been filed is the file stamp on the  petition itself, which was dated July 21, 37 days beyond the deadline.  Appellant dated his signature on the petition with the date of May 24, but the record is devoid of any facts indicating why the petition was not received by the trial court until July 21.  The record does not contain the envelope used to mail the documents nor any other evidence indicating appellant delivered the package for mailing by June 14.  It is clear his filing was delayed, but it is not clear who or what caused that delay.  Neither the record before us nor any arguments by appellant address the delay, and therefore, we are not at liberty to speculate.  Accordingly, we hold the trial court did not abuse its discretion when dismissing appellant=s cause of action.  See Brooks v. Tex. Dept. of Criminal Justice, No. 13-04-00320-CV, 2005 WL 1797071, at *2 (Tex. App.CCorpus Christi July 28, 2005, pet. denied) (not designated for publication) (holding the trial court did not abuse its discretion when no evidence exists the inmate=s petition was not timely received).  We overrule appellant=s first point of error.

In appellant=s second point of error, he claims the trial court=s order of dismissal is voidable because dismissing the cause of action without prejudice conflicts with the dismissal itself.  In essence, appellant argues that a dismissal with prejudice is what would make most sense.  This court has held on prior occasions that a dismissal without prejudice is the appropriate manner to dismiss an inmate=s cause of action under the Inmate Litigation Act.  See, e.g., Barnes v. Tex. Dept. of Criminal Justice, No. 14-02-00801-CV, 2004 WL 612824, at *3 (Tex. App.CHouston [14th Dist.] March 30, 2004, no pet.) (not designated for publication); Hickman v. Adams, 35 S.W.3d 120, 124B25 (Tex. App.CHouston [14th Dist.] 2000, no pet.).  A dismissal with prejudice constitutes the equivalent of an adjudication on the merits and operates as if the case had been fully tried and decided, and therefore, it has full res judicata and collateral estoppel effect.  Hickman, 35 S.W.3d at 124B25.  A trial court=s dismissal of a cause of action under section 14.005 is not a dismissal on the merits, and a dismissal without prejudice is the correct disposition.  Appellant correctly argues that an error in the trial court=s judgment will render that judgment voidable.  See Greiner v. Jameson, 865 S.W.2d 493, 501 (Tex. App.CDallas 1993, writ denied).  However, we find no error in the trial court=s judgment.  Accordingly, we overrule appellant=s second point of error. 

Having considered and overruled each of appellant=s points of error on appeal, we affirm the judgment of the trial court. 

 

 

 

 

 

/s/      John S. Anderson

Justice

 

 

 

 

Judgment rendered and Memorandum Opinion filed March 28, 2006.

Panel consists of Justices Anderson, Edelman, and Frost.

Do Not Publish C Tex. R. App. P. 47.2(b).