Opinion issued March 1, 2016

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-14-00795-CV

———————————

GERALD E. GILBERT, Appellant

V.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE, BOBBY PARVIS, 

CARLA JOSEPH, JAMES MASSBARGER, JUSTIN WATTERSON, THE 

UNIVERSITY OF TEXAS MEDICAL BRANCH, PAUL STRUNK, 

GLENDA ADAMS, STEPHEN SMOCK, AND TAWANA SMITH, Appellees

On Appeal from the 412th District Court

Brazoria County, Texas

Trial Court Case No. 76482-I

O P I N I O N

Appellant Gerald E. Gilbert is an inmate in the custody of the Texas 

Department of Criminal Justice (TDCJ) at the Ramsey Unit in Rosharon, Texas. 

He sued TDCJ, the University of Texas Medical Branch (UTMB), and several 
2

individual employees of both entities. His claims initially stem from injuries he 

allegedly incurred in a bus accident in the Ramsey Unit parking lot in 2006. Over 

the next few years, he developed various medical problems that he attributed to the 

accident. In 2012, he requested a change in assignment and some special 

equipment, including an oval ring cushion and a medically therapeutic mattress—

requests that his petition alleges were improperly handled or denied. He also 

alleged that, in 2013, his personal coaxial cables were seized from his cell’s 

television set by a prison employee.

The trial court granted the defendants’ motion to dismiss. We affirm. 

ISSUES ON APPEAL

Gilbert raises the following four issues here:

1. “Whether the district court by conspiracy in combination with 

improperly deprived plaintiff of his forum choice”;

2. “Whether the district court erred proceeding to final judgment after 

plaintiff filed an amendment to cure failure to comply by substituted 

instrument, and whether substitution should have been allowed”;

3. “Whether the district court erred by conducting an improper 

Alternative Dispute Resolution, under the pretense of a ‘Hearing by 

[Submission]’”;

4. “Whether the district court erred dismissing appellant’s Title 42 

U.S.C.A. §1983 civil rights cause of action for right of recovery for 

failure to comply with an inapplicable preempted state notice of 

claim, judicial administrative procedural requirement under Chapter 

14, Texas Civil Practice and Remedies Code §14.005(a)(2), (b).”

We will discuss the underlying facts and Gilbert’s claims as relevant to the 

analysis of each issue. 
3

VENUE

Gilbert’s lawsuit was filed in Brazoria County on March 25, 2014. He 

addressed his original petition to the 23rd District Court of Brazoria County. His 

case was assigned, however, to the 412th District Court of Brazoria County.1 In 

his first issue, Gilbert argues that assignment to the 412th was improper, and 

deprived him of his right to the venue of his choosing. 

Appellees respond that, while Gilbert was entitled to file in any proper 

county, he “did not have a proprietary interest to select which judge would preside 

over his case in the county of filing.” We agree. 

Gilbert cites Union Carbide Corp. v. Loftin, 256 S.W.3d 869, 873 (Tex. 

App.—Beaumont 2008, pet. dism’d) for the proposition that a “plaintiff is 

generally permitted to choose venue first, and the plaintiff’s choice of venue 

cannot be disturbed if the suit is initially filed in a county of proper venue.” He 

then contends that the 23rd district court “was plaintiff’s choice” and, thus, should 

not have been disturbed. 

Gilbert’s argument, however, conflates venues and individual courts. “In 

Texas, ‘venue’ refers to the county in which suit is proper within the forum state.” 

In re Great Lakes Dredge & Dock Co. L.L.C., 251 S.W.3d 68, 73 (Tex. App.—

Corpus Christi 2008, orig. proceeding) (emphasis added). Thus, although Gilbert 

 

1 According to the Brazoria County District Clerk’s website, cases are randomly 

assigned. 
4

couches his argument in terms of venue, his actual complaint is that he was not 

allowed to choose a particular court within his chosen venue of Brazoria County. 

A plaintiff does not have a right to select a particular judge or court in a multicourt county. In re Bennett, 960 S.W.2d 35, 40 (Tex. 1997) (orig. proceeding).

We overrule Gilbert’s first issue. 

AMENDED PLEADINGS

In his second issue, Gilbert argues that the trial court “erred by not allowing 

plaintiff to amend his pleadings.” This appears to be a reference to two filings: (1) 

a June 24, 2014 Plaintiff’s Motion for Substitution of Instrument attaching an 

Application to Proceed in Forma Pauperis and an inmate trust account statement, 

and (2) a July 21, 2014 Motion for Leave to File Supplement to Original 

Complaint attaching various documents in support of his claims (medical 

documents, affidavits, etc.). 

On August 19, 2014, the trial court issued a letter opinion explaining its 

ruling on the outstanding motions. That letter expressed the view that Gilbert did 

not need leave to supplement, but granted the motion “to the extent Court 

permission is needed.” Because the record does not reflect that Gilbert was 

prevented from supplementing or amending any pleadings, he has not shown any 

error related to the court’s treatment of his June 24, 2014 or his July 21, 2014 

motions.
5

After the trial court issued its August 18, 2014 Final Judgment, Gilbert filed 

a September 3, 2014 Motion for Leave to File an Amended Complaint. No ruling 

on that motion appears in the record. “Under rule of civil procedure 63, a party 

may amend its pleadings after the verdict, but before the trial court has entered 

judgment, unless the opposing party establishes surprise.” Hampden Corp. v. 

Remark, Inc., 331 S.W.3d 489, 497 (Tex. App.—Dallas 2010, pet. denied) 

(emphasis added) (citing Greenhalgh v. Serv. Lloyds Ins. Co., 787 S.W.2d 938, 

940 (Tex. 1990)). Gilbert cites no authority for the proposition that a plaintiff has 

a right to amend a petition after a final judgment is entered. Thus, to the extent 

that Gilbert’s third issue is directed at the court’s failure to grant this postjudgment motion to amend, he has not shown error. 

We overrule Gilbert’s second issue. 

HEARING BY SUBMISSION

In his third issue, Gilbert argues that the “trial court erred by conducting an 

improper hearing by submission to dismiss as frivolous with prejudice.” 

On May 28, 2014, the defendants filed a motion to dismiss under Chapter 14 

of the Texas Civil Practice and Remedies Code, which provides: 

§ 14.005. Grievance System Decision; Exhaustion of 

Administrative Remedies

(a) An inmate who files a claim that is subject to the grievance 

system established under Section 501.008, Government Code, shall 

file with the court:
6

(1) an affidavit or unsworn declaration stating the date that the 

grievance was filed and the date the written decision described 

by Section 501.008(d), Government Code, was received by the 

inmate; and

(2) a copy of the written decision from the grievance system.

(b) 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 written 

decision from the grievance system.

(c) If a claim is filed before the grievance system procedure is 

complete, the court shall stay the proceeding with respect to the claim 

for a period not to exceed 180 days to permit completion of the 

grievance system procedure. 

TEX. CIV. PRAC. & REM. CODE § 14.005 (West 2002). 

According to the defendants’ motion to dismiss, Gilbert’s lawsuit is related 

to two grievances, i.e., #2013153287 (filed May 29, 2013; final decision 

November 13, 2013) and #2013210052 (filed August 28, 2013; final decision 

October 21, 2013). Defendants’ motion alleged that Gilbert (1) failed to “file a 

copy of the written grievance decisions or an affidavit stating the dates of the 

grievances and the written decisions” as mandated by section 14.005(a)(1), and (2) 

failed to file “within the 31-day period after receiving written decisions from the 

grievance system” as required by section 14.005(b).

Defendants’ motion additionally claimed that dismissal was appropriate 

because Gilbert failed to file a complying trust account statement under section 

14.006(f).
7

The inmate shall file a certified copy of the inmate’s trust account 

statement with the court. The statement must reflect the balance of the 

account at the time the claim is filed and activity in the account during 

the six months preceding the date on which the claim is filed. The 

court may request the department or jail to furnish the information 

required under this subsection.

TEX. CIV. PRAC. & REM. CODE § 14.006(f) (West 2002). 

On June 24, 2014, Gilbert filed a Motion of Objection to Dismiss Pursuant 

to Chapter 14 of the Texas Civil Practice and Remedies Code. Gilbert provided 

the required statements about his prior administrative grievances and the date of 

their final decisions as required by section 14.005(a)(1). He conceded that he did 

not file his lawsuit within 31 days “after the date the inmate receives the written 

decision from the grievance system.” But, he contended that this requirement is 

unreasonable as applied to his claims, and that his claims should instead be subject 

to the two-year statute of limitations provided in section 16.003 of the Texas Civil 

Practice Remedies Code. 

The trial court set defendants’ motion to dismiss by submission for August 

18, 2014. On August 19, 2014, the trial court issued a letter opinion explaining its 

decision to grant defendants’ motion. That letter explained, in relevant part:

[T]he Joint Motion to Dismiss lists several grounds for dismissal. 

These are failure to comply with Chapter 14 by not filing within 31 

days after receiving a response to Step 2 grievances, failure to attach 

copies of the grievances, failure to attach a trust fund statement, and 

failure to attach a statement of prior litigation. Although Mr. Gilbert 

did not file a motion for leave to supplement his Original complaint to 

address the Trust Fund Statement and Statement of Prior Litigation, 
8

the Court believes that he cured the deficiencies when he filed his 

Trust Fund Statement and Statement of Prior Litigation. Mr. Gilbert 

never cured the failure to attach copies of his grievances even after 

this deficiency was pointed out by the Defendants. However, the issue 

he could not have cured is his failure to file his suit within 31 days 

after receiving his Step 2 grievances. Several cases have held that this 

is not able to be cured, and therefore require dismissal. . . . .

Therefore, I have signed the Order granting the State’s Motion to 

Dismiss under Chapter 14.

The court’s first final judgment, signed August 18, 2014, stated that the “all 

of Plaintiff’s claims against Defendants are DISMISSED WITH PREJUDICE for 

failure to comply with Chapter 14 of the Texas Civil Practice and Remedies 

Code.”

On September 3, 2014, Gilbert filed a Memorandum in Support of Motion 

for Reconsideration of Court’s Order of Final Judgment to Dismiss with Prejudice. 

On September 5, 2014, the trial court signed a second Final Judgment expressly 

vacating its August 18, 2014 final judgment. The new judgment was substantively 

the same as the first judgment, except it changed “dismissed with prejudice” to 

“dismissed.”

Gilbert argues that the trial court’s final judgment was erroneous because a 

hearing by submission amounts to “a hybrid form of Alternative Dispute 

Resolution” that deprived him of due-process rights. He cites a federal statute 

permitting communication technology to be used in federal prison cases in lieu of 

the inmate’s personal appearance:
9

To the extent practicable, in any action brought with respect to prison 

conditions in Federal court pursuant to section 1983 of this title, or 

any other Federal law, by a prisoner confined in any jail, prison, or 

other correctional facility, pretrial proceedings in which the prisoner's 

participation is required or permitted shall be conducted by telephone, 

video conference, or other telecommunications technology without 

removing the prisoner from the facility in which the prisoner is 

confined. 

42 U.S.C.A. §1997e(f)(1). 

Section 1997(e) is inapposite, as it applies to federal court—not state 

court—proceedings, and it only governs pretrial proceedings that an inmate is 

“required or permitted” to attend. 

Whether the trial court holds a hearing on a Chapter 14 motion to dismiss is 

left to the trial court’s discretion. TEX. CIV. PRAC. & REM. CODE § 14.003(c) (West 

2002) (“In determining whether Subsection (a) applies, the court may hold a 

hearing.” (emphasis added)); Hamilton v. Pechacek, 319 S.W.3d 801, 808 (Tex. 

App.—Fort Worth 2010, no pet.) (“The plain language of the statute indicates that 

the trial court’s determination to hold a hearing on a chapter 14 motion to dismiss 

is discretionary.”).

We overrule Gilbert’s third issue. 

CONSTITUTIONALITY

In his fourth issue, Gilbert argues that the trial court erred by granting the 

defendants’ motion to dismiss because applying Chapter 14’s dismissal procedures 

to his federal civil rights claim is “unreasonable, unconstitutional and 
10

inapplicable.” Specifically, Gilbert complains about Chapter 14’s requirement that 

the civil action be initiated within 31 days of the grievance decision. See TEX. CIV.

PRAC. & REM. CODE ANN. § 14.005(b). We read Gilbert’s brief to challenge the 

constitutionality of the statute both facially and as applied. State v. Rosseau, 396 

S.W.3d 550, 557 (Tex. Crim. App. 2013) (“[T]o prevail on a facial challenge, a 

party must establish that the statute always operates unconstitutionally in all 

possible circumstances.”); State ex rel. Lykos v. Fine, 330 S.W.3d 904, 910 (Tex. 

Crim. App. 2011) (“A litigant raising only an ‘as applied’ challenge concedes the 

general constitutionality of the statute, but asserts that the statute is 

unconstitutional as applied to his particular facts and circumstances.”).

A. Felder v. Casey

In support of his argument that application of section 14.005(b)’s 31-day 

deadline for filing suit is facially unconstitutional, Gilbert relies on Felder v. 

Casey, 487 U.S. 131, 108 S. Ct. 2302 (1988). In Felder, the Supreme Court 

considered whether a state’s notice-of-claim statute applied to a federal §1983 

claim. Id. at 134, 108 S. Ct. at 2304–05. The statute in question prohibited the 

filing of any action against the state or its subdivisions, agencies, or officers unless 

the plaintiff had filed a written notice-of-claim within 120 days of his or her 

alleged injury. Id. at 136, 108 S. Ct. at 2305. The mandated notice had to include 

“an itemized statement of the relief sought.” Id. at 136–37, 108 S. Ct. at 2305–06.
11

The Supreme Court held that the Supremacy Clause of the federal 

constitution pre-empted the application of the notice-of-claim statute for § 1983 

claims. Id. at 151, 108 S. Ct. at 2313; see also U.S. CONST. art. VI, cl. 2 (“This 

Constitution, and the laws of the United States . . . shall be the supreme law of the 

land; and the judges in every state shall be bound thereby, anything in the 

Constitution or laws of any State to the contrary notwithstanding”). While it 

recognized that states may establish rules of procedure governing litigation in their 

courts, the court admonished that rules of local practice cannot defeat federallycreated causes of action. Felder, 487 U.S. at 138, 108 S. Ct. at 2306. The court 

held,

Because the notice-of-claim statute at issue here conflicts in both its 

purpose and effects with the remedial objectives of § 1983, and 

because its enforcement in such actions will frequently and 

predictably produce different outcomes in § 1983 litigation based 

solely on whether the claim is asserted in state or federal court, we 

conclude that the state law is preempted when the § 1983 action is 

brought in a state court.

Id. at 138, 108 S. Ct. at 2307. 

The state statute conflicted with the purpose of §1983 because the 

“predominant objective” of the statute was to minimize liability and expenses for 

the state while §1983 claims were designed to “provides compensatory relief to 

those deprived of their federal rights by state actors.” Id. at 141, 143, 108 S. Ct. at 

2308–09. The state statute would produce different outcomes based solely on 
12

whether the claim was brought in state or federal court because there was no 

federal corollary requiring notice of claims before bringing claims in federal 

courts. Id. at 141, 108 S. Ct. at 2308. Finally, the court emphasized, “Civil rights 

victims often do not appreciate the constitutional nature of their injuries and thus 

will fail to file a notice of injury or claim within the requisite time period, which in 

Wisconsin is a mere four months.” Id. at 152, 108 S. Ct. at 2314.

B. Post-Felder developments in the law 

Since Felder was decided, a new federal law—the Prison Litigation Reform 

Act of 1995 (PLRA)—was enacted, making §1983 claims brought by indigent 

inmates subject to certain exhaustion of remedies requirements, as well as barring 

federal suits by inmates with at least three previous actions deemed frivolous. 

(a) Applicability of administrative remedies

No action shall be brought with respect to prison conditions under 

section 1983 of this title, or any other Federal law, by a prisoner 

confined in any jail, prison, or other correctional facility until such 

administrative remedies as are available are exhausted.

42 U.S.C.A. § 1997e(a) (West Supp. 2000); see also 28 U.S.C.A. § 1915(g) (West 

Supp. 2000) (3-strikes provision).

In 2005, the Ninth Circuit considered the interaction between the PLRA’s 

new administrative exhaustion requirements and an inmate’s time-barred state § 

1983 claim. See Ngo v. Woodford, 403 F.3d 620 (9th Cir. 2005), rev’d by

Woodford v. Ngo, 548 U.S. 81, 126 S. Ct. 2378 (2006). Specifically, the court 
13

addressed whether “the district court properly dismissed a prisoner’s complaint for 

failing to exhaust all available administrative remedies as required by the Prison 

Litigation Reform Act . . . even though the prisoner’s administrative appeal was 

deemed time-barred and no further level of appeal remained in the state prison’s 

internal appeals process.” Id. at 622. 

The Ngo court recognized the PLRA as “a dramatic departure from 

established Supreme Court precedent. Compare Wilwording v. Swenson, 404 U.S. 

249, 251, 92 S. Ct. 407, 30 L.Ed.2d 418 (1971) (per curiam) (declaring that 

inmates “are not held to any stricter standard of exhaustion [of remedies]” than 

other civil rights litigants), with id. § 1997e(a).” 403 F.3d at 623. Ultimately, the 

Ngo court reversed the dismissal of the plaintiff’s suit as inconsistent with the 

purposes of the PLRA:

[A]dministrative exhaustion rules have two principal purposes. See

McCarthy v. Madigan, 503 U.S. 140, 145, 112 S. Ct. 1081 (1992) 

(superseded by amendment of § 1997e(a)). The first is to protect an 

administrative agency’s authority by giving the agency the first 

opportunity to resolve a controversy before a court intervenes in the 

dispute. See id. The second is to promote judicial efficiency by either 

resolving the dispute outside of the courts, or by producing a factual 

record that can aid the court in processing a plaintiff’s claim. Id. at 

145–46, 112 S.Ct. 1081. 

. . . .

[W]e hold that Ngo exhausted all administrative remedies available to 

him as required by the PLRA when he completed all avenues of 

administrative review available to him: His administrative appeal was 

deemed time-barred and no further level of appeal remained in the 
14

state prison’s internal appeals process. We also hold that the PLRA’s 

exhaustion requirement does not bar subsequent judicial consideration 

of an exhausted administrative appeal that was denied on state 

procedural grounds.

Id. at 624, 630–31. 

The United States Supreme Court reversed, holding that “proper exhaustion 

of administrative remedies is necessary”:

The PLRA strengthened this exhaustion provision in several ways. 

Exhaustion is no longer left to the discretion of the district court, but 

is mandatory. See Booth v. Churner, 532 U.S. 731, 739, 121 S. Ct. 

1819 (2001). Prisoners must now exhaust all “available” remedies, 

not just those that meet federal standards. Indeed, as we held in Booth, 

a prisoner must now exhaust administrative remedies even where the 

relief sought—monetary damages—cannot be granted by the 

administrative process. Id. at 734, 121 S. Ct. 1819. Finally, exhaustion 

of available administrative remedies is required for any suit 

challenging prison conditions, not just for suits under § 1983. 

Woodford v. Ngo, 548 U.S. 81, 85 (2006).

On remand, the Ninth Circuit affirmed the district court’s dismissal of the 

plaintiff’s claim. And, because the plaintiff had waited months beyond the 15-day 

deadline to file his administrative appeal, the court declined to address whether the 

15-day appeal window was facially constitutional, i.e., whether that requirement 

gives inmates “a meaningful opportunity to exhaust.” Ngo v. Woodford, 539 F.3d 

1108, 1110 (9th Cir. 2008) (citing Felder, 487 U.S. 131, 146 (1988). It also 

rejected the plaintiff’s as-applied challenge, and left open the issue of whether 
15

exceptional circumstances could excuse non-compliance with PLRA’s 

requirements: 

It is unclear whether we can read exceptions into the PLRA’s 

exhaustion requirement. Compare Woodford v. Ngo, 126 S. Ct. at 

2393 (Breyer, J., concurring in the judgment), with Booth v. Churner, 

532 U.S. 731, 741 n. 6, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001). Even 

if we could, no such exception applies here. Ngo hasn’t shown that 

administrative procedures were unavailable, that prison officials 

obstructed his attempt to exhaust or that he was prevented from 

exhausting because procedures for processing grievances weren’t 

followed. Ngo argues that prison officials didn’t follow procedures 

and misled him. However, the acts he complains about took place 

only after Ngo sent his March 20, 2001, letter to Deputy Warden 

Kane. As a result, they could have no effect on Ngo’s ability to 

exhaust, as he had already missed the deadline.

Id. at 1110.

Texas courts have heeded the Supreme Court’s admonishment that, under 

the PLRA, “proper exhaustion” means “compliance with an agency’s deadlines 

and other critical procedural rules.” Leachman v. Dretke, 261 S.W.3d 297, 309 

(Tex. App.—Fort Worth 2008, no pet.) (quoting Woodford, 548 U.S. at 90–91, 126 

S. Ct. at 2386). For example, the Fort Worth Court of Appeals held that dismissal 

of an inmate’s suit with prejudice was proper after the plaintiff missed the 15-day 

window to file a Step 1 grievance against prison officials. Id. at 311; see also id. at 

310–311 (“Following the reasoning of the Supreme Court in Woodford, we adopt 

the interpretation that the exhaustion of remedies requirement under section 

501.008 of the government code and section 14.005 of the civil practice and 
16

remedies code requires proper exhaustion of remedies, i.e., the timely filing of 

grievances, before an inmate may seek judicial review.”). 

The Fort Worth court left open the question of whether an “as applied” 

constitutional challenge to Texas’s administrative procedures could be viable. Id. 

at 311. Specifically, it noted that it need not decide that issue because the plaintiff 

would not have benefited from “some kind of discovery rule applied as an 

exception to proper exhaustion,” as he knew about his grievance before the 15-day 

deadline. Id. 

Also relying on the post-Felder enactment of the PLRA, the Beaumont 

Court of Appeals has rejected a Supremacy Clause challenge to section 14.005(b)’s 

31-day deadline, declining to hold that—under Felder—that deadline was 

preempted by federal law. Thomas v. Bush, 23 S.W.3d 215, 217–18 (Tex. App.—

Beaumont 2000, pet. denied). 

C. Gilbert’s case

The provisions about which Gilbert complains are a part of a statutory 

scheme for inmates to exhaust their remedies within the inmate grievance system 

before filing suits, and shorten the time they have to file suit:

§ 501.008. Inmate Grievance System

(a) The department shall develop and maintain a system for the 

resolution of grievances by inmates housed in facilities operated by 

the department or under contract with the department that qualifies for 

certification under 42 U.S.C. Section 1997e and the department shall 
17

obtain and maintain certification under that section. A remedy 

provided by the grievance system is the exclusive administrative 

remedy available to an inmate for a claim for relief against the 

department that arises while the inmate is housed in a facility operated 

by the department or under contract with the department, other than a 

remedy provided by writ of habeas corpus challenging the validity of 

an action occurring before the delivery of the inmate to the 

department or to a facility operated under contract with the 

department.

(b) The grievance system must provide procedures:

(1) for an inmate to identify evidence to substantiate the 

inmate’s claim; and

(2) for an inmate to receive all formal written responses to the 

inmate’s grievance.

(c) A report, investigation, or supporting document prepared by the 

department in response to an inmate grievance is considered to have 

been prepared in anticipation of litigation and is confidential, 

privileged, and not subject to discovery by the inmate in a claim 

arising out of the same operative facts as are alleged in the grievance.

(d) An inmate may not file a claim in state 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; or

(2) if the inmate has not received a written decision described 

by Subdivision (1), the 180th day after the date the grievance is 

filed.

(e) The limitations period applicable to a claim arising out of the same 

operative facts as a claim for which the grievance system provides the 

exclusive remedy:

(1) is suspended on the filing of the grievance; and

(2) remains suspended until the earlier of the following dates:
18

(A) the 180th day after the date the grievance is filed; or

(B) the date the inmate receives the written decision 

described by Subsection (d)(1).

(f) This section does not affect any immunity from a claim for 

damages that otherwise exists for the state, the department, or an 

employee of the department.

TEX. GOV’T CODE ANN. § 501.008(d) (West 2012).

§ 14.005. Grievance System Decision; Exhaustion of 

Administrative Remedies

(a) An inmate who files a claim that is subject to the grievance 

system established under Section 501.008, Government Code, shall 

file with the court:

(1) an affidavit or unsworn declaration stating the date that the 

grievance was filed and the date the written decision described 

by Section 501.008(d), Government Code, was received by the 

inmate; and

(2) a copy of the written decision from the grievance system.

(b) 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 written 

decision from the grievance system.

(c) If a claim is filed before the grievance system procedure is 

complete, the court shall stay the proceeding with respect to the claim 

for a period not to exceed 180 days to permit completion of the 

grievance system procedure.

TEX. CIV. PRAC. & REM. CODE ANN. § 14.005 (emphasis added). 

Although the 31-day deadline for filing a lawsuit is couched within a statute 

entitled “Exhaustion of Administrative Remedies,” Gilbert contends that it 

operates as a statute of limitations rather than an administrative remedy because it 
19

truncates when a suit can be filed in court to seek a judicial remedy, rather than 

governing procedures or timelines before an administrative agency to obtain an 

administrative remedy. For that reason, he argues that section 14.005(b) is 

analogous to the “notice of claim” requirement that the Felder court rejected as 

preempted under the Supremacy Clause. Nonetheless, the 31-day deadline has 

been characterized by other courts as “not a statute of limitations, but a procedural 

tool to screen inmate lawsuits.” Doyle v. Lucy, No. 14-03-00039-CV, 2004 WL 

612905, at *3 (Tex. App.—Houston [14th Dist.] Mar. 30, 2004, no pet.) (mem. 

op.). For the reasons below, we reject Gilbert’s Supremacy Clause argument 

regardless of which characterization of section 14.005(b) is correct. 

1. Facial Challenge 

Changes in the law since Felder was decided have undercut largely, if not 

completely, the premise behind Gilbert’s argument for invalidating section 

14.005(b) as pre-empted by § 1983. As previously discussed, the Felder court 

expressed two primary concerns in invalidating Wisconsin’s notice-of-claim 

requirement, i.e., (1) potentially different outcomes depending on whether a case 

was brought in state or federal court (because there was no such federal 

requirement), and (2) the possibility that inmates might not appreciate the 

constitutional nature of their injuries within the notice-of-claim time period. 
20

 Since the PLRA was enacted, these concerns from Felder do not apply to 

the section 14.005(b) 31-day time limit for filing suit. The PLRA requires all state 

administrative remedies be exhausted before suit can be filed in federal court, 

meaning that—assuming section 14.005(b) is an administrative exhaustion 

requirement—it would apply equally whether an inmate suit was filed in state or 

federal court.2

The concern that an inmate might not appreciate the constitutional nature of 

his or her claim is likewise not implicated by section 14.005(b)’s 31-day filing 

deadline because neither a state or federal suit can be brought until the inmate 

claim has been through the prison’s internal grievance system. In other words, 

unlike the notice-of-claim requirement in Felder, the 31-day court filing deadline 

in section 14.005(b) does not come into play until after the inmate has identified 

his or her complaint and adjudicated it throughout the prison grievance procedures. 

See Randle v. Wilson, 26 S.W.3d 513, 516 (Tex. App.—Amarillo 2000, no pet.) 

(“This is not a circumstance wherein the inmate merely has 31 days to discover the 

claim and then initiate suit upon it; he already knows of it.”).

Given the Supreme Court’s reasoning in Woodford, we reject Gilbert’s facial 

constitutional challenge to section 14.005(b). Under Woodford, an inmate’s 

 

2 And, if section 14.005(b) is instead a statute of limitations, federal courts borrow 

the state statute of limitations for § 1983 actions, see Wallace v. Kato, 549 U.S. 

384, 387 127 S. Ct. 1091, 1095 (2007), which would again lead to the same 

application of the 31-day filing requirement. 
21

misstep in timely complying with any prison internal grievance administrative 

procedure forecloses a § 1983 claim in state or federal court because of the 

requirement that all administrative procedures be properly and timely complied 

with. Woodford, 548 U.S. at 90, 126 S. Ct. at 2386 (“Proper exhaustion demands 

compliance with an agency’s deadlines and other critical procedural rules.”). We 

see no reason that the Supreme Court would treat Texas’s 31-day court filing 

requirement differently. 

 Accordingly, we hold that, on its face, the 31-day deadline in §14.005 of 

the Civil Practice and Remedies Code does not violate the Supremacy Clause of 

the federal constitution for §1983 claims. We overrule Gilbert’s fourth issue.

2. As-applied

We interpret Gilbert’s arguments about his inability to comply with the 31-

day deadline as an as-applied challenge to section 14.005(b). Gilbert focuses his 

argument on the alleged unreasonableness of subjecting pro se inmates without 

legal training and with limited time in the law library to a 31-day limitations 

period. Such reasoning has been rejected by other courts, and we reject it here. 

[A] state may require inmates to comply with rules that make the trial 

process possible or that facilitate the functioning of our system of 

justice. Hodge v. Prince, 730 F. Supp. 747, 751 (N.D. Tex. 1990), 

aff’d, 923 F.2d 853 (5th Cir. 1991). A limitation period, such as the 

31 day period at bar, is akin to such a rule. It exists not only to compel 

litigants to action, but also provides our judicial system an opportunity 

to timely and efficiently address legitimate claims and injuries, thus, it 

serves a reasonable purpose. Moreover, it is not unreasonable to 
22

expect inmates to comply with it. For a prisoner who has already 

pursued a grievance through administrative channels and has 

exhausted his administrative remedies, 31 days to convert that 

grievance into a lawsuit is ample time to act. This is not a 

circumstance wherein the inmate merely has 31 days to discover the 

claim and then initiate suit upon it; he already knows of it. 

Randle v. Wilson, 26 S.W.3d 513, 516 (Tex. App.—Amarillo 2000, no pet.); see 

also Wallace v. Tex. Dep’t of Criminal Justice-Institutional Div., 36 S.W.3d 607, 

611 n.4 (Tex. App.—Houston [1st Dist.] 2000, pet. denied) (“The 31 day period 

for filing suit in section 14.005(b) serves a reasonable purpose by allowing the 

judicial system an opportunity to address legitimate claims and injuries in a timely 

and efficient manner.”). 

Significantly, Gilbert does not argue that he was unaware of the deadline, or 

that prison or court officials interfered with his ability to comply with the deadline. 

As the Ninth Circuit did in Ngo, and the Amarillo Court of Appeals did in Randle, 

we leave open the question of whether—and under what circumstances—an 

inmate’s individual circumstances could excuse compliance with administrative 

procedures or filing deadlines. We hold only that Gilbert has not made such a 

showing here. 

We overrule Gilbert’s fourth issue. 

CONCLUSION

We affirm the trial court’s judgment. 
23

Sherry Radack

Chief Justice

Panel consists of Chief Justice Radack and Justices Higley and Massengale.