Court of Appeals of Texas, Eighth District, El Paso
from 83rd District Court of Pecos County, Texas (TC #
McClure, C.J., Rodriguez, and Hughes, JJ.
CRAWFORD McCLURE, Chief Justice
Joe Morgan is an inmate incarcerated with the Texas
Department of Criminal Justice. Proceeding pro se
and in forma pauperis, Morgan sued the warden and
two correctional officers at TDCJ's Lynaugh Unit,
alleging they failed to protect him when another inmate beat
him with a cup on January 20, 2016. On behalf of Appellees,
the Texas Attorney General's Office (OAG) filed a motion
to dismiss Morgan's lawsuit pursuant to Chapter 14 of the
Texas Civil Practice and Remedies Code, which places numerous
procedural requirements on an inmate who sues in forma
pauperis. See Tex.Civ.Prac.&Rem.Code Ann.
§§ 14.001-.014 (West 2017); Thomas v.
State, No. 10-16-00283-CV, 2017 WL 218938, at *1
(Tex.App.--Waco Jan. 18, 2017, pet. filed) (mem.
op.)("An inmate proceeding in forma pauperis . . . is
subject to the procedural requirements of Chapter 14.").
Morgan contends the trial court abused its discretion when it
dismissed his lawsuit with prejudice.
motion to dismiss, the OAG asserted that Morgan had failed to
meet the requirements of Chapter 14 in three respects: (1) by
failing to provide a sufficient description of the six prior
lawsuits he had filed, (2) by failing to provide an accurate
printout from his inmate trust account, and (3) by failing to
file a copy of the written decision from the inmate grievance
system. Along with his response to the motion, Morgan
provided a declaration stating that he had timely submitted a
Step 1 grievance in the inmate grievance system on February
4, 2016, but that the warden never responded and that
therefore the grievance did not proceed to Step
He also provided a list of lawsuits he had previously filed.
On March 1, 2016, the trial court granted the motion to
dismiss without a hearing and entered judgment dismissing
Morgan's claims with prejudice. Three months after the
trial court entered judgment and three weeks after the trial
court had denied Morgan's motion for new trial, Morgan
filed a printout from his inmate trust account with his
request for preparation of the appellate record.
review a dismissal under Chapter 14 for abuse of discretion.
Camacho v. Rosales, 511 S.W.3d 82 (Tex.App.--El Paso
2014, no pet.); Loyd v. Seidel, 281 S.W.3d 55, 56
(Tex.App.--El Paso 2008, no pet.). A trial court abuses its
discretion if it acts without reference to guiding rules or
principles. Loyd, 281 S.W.3d at 56.
correctly points out that Morgan did not meet the
requirements of Chapter 14 in several respects. For instance,
because Morgan had filed a declaration of inability to pay
costs, Section 14.004 of Chapter 14 required Morgan to also
file "a separate affidavit or declaration"
informing the court of each lawsuit he had previously brought
as a pro se litigant (excluding any lawsuits brought
under the Family Code). Tex.Civ.Prac.&Rem.Code Ann.
§ 14.004(a). Along with his response to the OAG's
motion to dismiss, Morgan filed a declaration listing
"Each Lawsuit Previously Filed." Morgan listed six
prior lawsuits and identified the parties involved, the cause
number (except for one case), and provided a short
description of each lawsuit and its status. Section 14.004,
however, also required Morgan to identify the court in which
each action was brought and "whether the action or a
claim that was a basis for the action was dismissed as
frivolous or malicious under Section 13.001 [allowing
dismissal of any indigent's lawsuit as frivolous or
malicious] or Section 14.003 [allowing dismissal of an
indigent inmate's lawsuit as frivolous or malicious] or
otherwise." Id. at § 14.004(a)(2)(B, D).
Morgan failed to meet these requirements.
Section 14.006(f) required Morgan to file a certified copy of
his trust account statement reflecting the balance of the
account at the time the claim was filed and the activity in
the account for the six months before suit was filed.
Id. at § 14.006(f). Morgan failed to timely
file a trust account statement. Morgan only belatedly filed a
trust account statement three months after judgment was
entered, when he filed his request for preparation of the
appellate record. And, even then, the statement did not show
the balance at the time suit was filed and did not reflect
the activity in the account for the entire six month period
before suit was filed.
alleges in his brief that despite these deficiencies, the
trial court should not have dismissed his case with
prejudice. We agree. Under Texas law, a dismissal for failure
to comply with the requirements of Chapter 14 "may be
corrected through an amended pleading, so a dismissal with
prejudice is not appropriate." Peña v.
McDowell, 201 S.W.3d 665, 665-66 (Tex. 2006)(per
curiam); see also McLean v. Livingston, 486 S.W.3d
561, 564 (Tex. 2016)(discussing the holding in Pena
and applying it to indigent inmate appeals).
if dismissal with prejudice were the only problem with the
trial court's judgment, we would modify the judgment to
be without prejudice and affirm the judgment as modified.
See Brown v. Bluhm, No. 04-09-00031-CV, 2009 WL
2209643, at *3 (Tex.App.--San Antonio July 22, 2009,
no pet.) (mem. op.) (modifying judgment to be without
prejudice and affirming judgment as modified because
deficiency could be corrected by amendment). Here, however,
there is another problem. Morgan correctly asserts that the
trial court should not have addressed and ruled on the motion
to dismiss, but rather was required by statute to abate the
case when he presented evidence that his grievance system
procedure was not complete.
regard, Section 14.005 requires that when an inmate files a
claim subject to the grievance system established under
Section 501.008 of the Texas Government Code, he must file an
affidavit or unsworn declaration stating the date the
grievance was filed and the date the final decision was
received, along with a copy of the written decision from the
grievance system. Tex.Civ.Prac.&Rem.Code Ann. §
14.005(a). In his response to the motion to dismiss, Morgan
stated in his declaration that he had filed a Step 1
grievance on February 4, 2016 with the warden, who never
replied, and that he had "immediately filed my claim,
" because he had learned from previous experience with a
former grievance that when "they do not respond to Step
1 grievances . . . you can't do a Step 2." The OAG
argued in part that Morgan's claim should be dismissed
because he did not file a copy of the written decision from
the grievance system as required by Section 14.005(a), and
had therefore failed to show that he had exhausted his
administrative remedies. But Section 501.008 of the
Government Code provides that the grievance system is the
exclusive administrative remedy and prevents an inmate from
filing a claim in state court, only until either (1) the
inmate receives a written grievance system decision
or (2) if the inmate has not received a written
decision, the 180th day after the date the grievance is
filed. Tex.Gov't Code Ann. § 501.008(d)(West 2012).
Thus, Morgan could have properly filed suit 180 days after
the date he filed his grievance on February 4, 2016, even
without a written decision from the grievance system.
Morgan's response showed that he had not yet received the
written grievance decision, but had proceeded to file suit
before the 180 days had elapsed. Section 14.005(c)
specifically requires that when "a claim is filed before
the grievance system procedure is complete, the court
shall stay the proceedings with respect to the claim
for a period not to exceed 180 days to permit ...