NO. 07-11-00055-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL A AUGUST 16, 2011 PERRY JOHNSON, APPELLANT
v. LISA A. CONNER, ET AL., APPELLEES FROM THE 69TH DISTRICT COURT OF HARTLEY COUNTY; NO. 4622-H; HONORABLE RON ENNS, JUDGE Before CAMPBELL and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION Appellant, Perry Johnson, an inmate proceeding pro se , sued Texas Department of Criminal Justice (TDCJ) officials, Lisa A. Conner and Sandra Murphy, alleging their actions deprived him of his constitutional right to due process of law. The trial court dismissed his claims against Conner and Murphy on the basis that those claims were frivolous. He maintains the trial court abused it s discretion by so finding. We will affirm.2 Factual and Procedural History According to Johnson, he was convicted of a disciplinary violation in case number 2010026065. At some point after t he decision was rendered in that case, Johnson listened to a recording of that hearing. He understood the timetable for appealing that decision to permit him to a ppeal the conviction by filing a grievance within fifteen days of listening to the recording. He says that he attempted to appeal his disciplinary conviction by filing griev ance number 2010182233. According to his petition, his attempted appeal wa s returned to him unprocessed. Johnson filed suit alleging t hat Conner, unit grievance inve stigator at the Dalhart Unit, and Murphy, administrator of the TDCJ Offender Grievance Program, interpreted and applied the TDCJ policy in such a way as to deprive him of due process of law. The trial court dismissed his appeal as fr ivolous, which, on appeal, Johnson contends was an abuse of discretion. Applicable Law and Standard of Review Chapter 14 of the Texas Civil Practi ce and Remedies Code applies to an inmate’s suit in which an affidavit or unsworn declaration of inability to pay costs is filed by the inmate. See T EX
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. C ODE A NN . § 14.002 (West 2002). Among the several grounds on which a trial court may di smiss such a suit is the finding that the inmate’s suit is frivolous or malicious. See id. § 14.003(a)(2) (West 2002). In determining whether a claim is frivolous or malicious, the trial court may consider whether (1) the claim’s realistic chance of ul timate success is slight, (2) the claim has no arguable basis in law or in fact, (3) it is clear that the party cannot prove facts in support3 of the claim, or (4) the clai m is substantially similar to a previous claim filed by the inmate because the claim arises from the same operative facts. Id. § 14.003(b). A claim has no arguable basis in law if the inmate has failed to exhaust his administrative remedies. Hamilton v. Williams , 298 S.W.3d 334, 339–40 (T ex.App.—Fort Worth 2009, pet. denied) (citing Leachman v. Dretke , 261 S.W.3d 297, 311 (Tex.App.—Fort Worth 2008, no pet.), and Retzlaff v. Tex. Dep’t of Crim. 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 that ground was not presented in a motion to dismiss. Id. at 340 (citing Retzlaff , 94 S.W.3d at 653).
We review a trial court’s dismissal of a lawsuit brought by an inmate who had filed an affidavit or declaration of inability to pay costs for an abuse of discretion. In re Douglas , 333 S.W.3d 273, 293 (Tex.App.—Hous ton [1st Dist.] 2010, pet. denied). Under this standard of review, the appellant inmate must s how that the trial court’s action was arbitrary or unreason able in light of all the circ umstances in the case. Id. While, generally, we review a dismissal of inmate litigation under Chapter 14 for an abuse of discretion, we review de novo the specific question whether there was an arguable basis in law for an inmate’s claims. Id. Analysis
Johnson maintains that the trial court abus ed its discretion by dismissing his suit. In four sub-issues, he presents two bases for his contention: (1) the trial court could not have granted the Office of the Attorney General’s “advisory” because the Office of the Attorney General (OAG) identified itself as amicus curiae in the litigation, and (2) the4 trial court abused its di scretion when it conclu ded that Johnson’s suit was frivolous due, in part, to the trial court’s misinter pretation of the relief he requested. OAG as Amicus Curiae
Johnson contends that the trial court di d not have the authority to dismiss his claim based on the “advisory” submitted to the trial court by the OAG. He maintains that, because the OAG identified itself as amicus curiae , the trial court could not have acted on its “advisory.” From the combined answer and motion to dismiss or “advisory,” it is unclear the OAG’s intended role . The OAG did identify itself as amicus curiae , but then it goes on to identify the document as defendant’s answer a nd motion to dismiss and signs the document as “Attorney for Defendants.” As Johnson ably points out, a true amicus curiae is without interest in the proceeding in which it appears. See In re Wingfield , 171 S.W.3d 374, 381 (Tex.App.— Tyler 2005, orig. proceeding) (citing Burger v. Burger , 298 S.W.2d 119, 120–21 (Tex. 1957)). An amicus curiae is a “bystander” whose mission is to aid the court, to act only for the benefit of the court. Id. An amicus curiae is a person or entity “who is not a party to a lawsuit but who petitio ns the court or is requested by the court to file a brief in the action because that person has a strong interest in the subject matter.” B LACK ’ S L AW D ICTIONARY 98 (9th ed. 2009). The OAG had the statutory aut hority, if not the duty, to represent Conner and Murphy, as public servants. See T EX
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. C ODE A NN . § 104.004 (West 2011); Mason v. Wood , 282 S.W.3d 189, 192 (Tex.App.— Beaumont 2009, no pet.). If the OAG filed the combined answer and motion in furtherance of su ch representation,5 then the trial court could have granted the motion to dismiss. If, on the other hand, the OAG was acting as amicus curiae , then the trial court could ha ve entertained the issues it raised as friend of the trial court. See Mason , 282 S.W.3d at 191 (concluding that trial court could consider issues rais ed in OAG’s “advisory,” filed as amicus curiae per trial court’s order, but ultimately observing that OAG’s submission was, in fact, an answer and motion to dismiss on behalf of defendants). So, the tria l court could have granted a motion to dismiss filed by the OAG on behalf of a defendant, and it could have entertained issues or questions raised by t he OAG as friend of the court. However, neither scenario must necessarily present itself to invest t he trial court with the authority to dismiss Johnson’s claims.
The trial court’s exercise of it s discretionary power to dismiss sua sponte under Chapter 14 does not depend on a defendant filing a motion to dismiss. See Gross v. Carroll , 339 S.W.3d 718, 722 (Tex.App.—Houst on [1st Dist.] 2011, no pet.) (citing T EX
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. C ODE A NN . § 14.003(a)); Wilson v. TDCJ-ID , 107 S.W.3d 90, 92 (Tex. App.—Waco 2003, no pet.) (citing McCo llum v. Mt. Ararat Baptist Church , 980 S.W.2d 535, 537 (Tex.App.—Houston [14th Dist.] 1998, no pet .)). Simply put, without regard to the motion to dismiss or “adv isory,” the trial court had the authority to dismiss Johnson’s claims as frivolous. Any error associated with considering the OAG’s submission after it identified itself as amicus curiae would not have caused the rendition of an improper judgment. See T EX
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. P. 44.1(a). While it initially strikes us as curiously inconsistent that t he OAG would identify itself as amicus curiae in the trial court at the same ti me it purported to represent one of6 the defendants, we note that t he instant case presents a situat ion in which the trial court has been granted specific authori ty to dismiss an inmate’s litigation unde r Chapter 14 either before or after servic e and on a party’s motion or the trial court’s own motion. See T EX
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. C ODE A NN . § 14.003(a), (c). With that, we need not determine the precise capacity in which the OAG participated in this litigation or the propriety of considering anything submitted by the OAG in such capacity. Regardless of the capacity in which the OAG appeared befor e the trial court, the trial court was authorized to dismiss Johnson ’s suit as frivolous. The Trial Court’s Determinati on that Claims Were Frivolous According to Johnson’s petition, he was found to have committed a disciplinary violation in disciplinary case number 2010026065. Under his interpretation of TDCJ policy, he had fifteen days after he listened to the recording of the hearing in that case to appeal his disciplinary conviction. Based on that interpretation, Johnson sought to appeal his disciplinary conviction in ca se number 2010026065 by filing grievance number 2010182233. But, he claims, according to TDCJ’s application of the policy, his attempted appeal was returned to him unprocessed as untimely. Johnson claims that Conner and Murphy persisted in their misint erpretation and misapplication of TDCJ policy and, in doing so, denied him due process of law by depriving him of his ability to appeal his disciplinary convicti on in case number 2010026065.
Johnson has failed to establish that he exhausted his administrative remedies with respect to the factual basis for his allegations. See T EX
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. § 14.005(a) (West 2002). In his claims against Conner and Murphy, Johnson7 maintains that he was denied the right to appeal the disciplinary conviction in case number 2010026065 by TDCJ offi cial’s “refusal to process” his grievance number 2010182233. Included in the record before us are a number of completed grievance forms and correspondence advancing Johnson’s interpretation of TDCJ policy in relation to those grievances. However, we do not find in the re cord any copy of the grievance at issue, number 2010182233. An inmate may not file a claim in stat e court regarding operative facts for which the TDCJ grievance system provides the exclusive administrative remedy until the inmate receives a written decision issued by the highest authority provided for in the grievance system, or the 180th day after the date the grievanc e is filed, if the inmate has not received a written decision. T EX
. G OV ’ T C ODE A NN . § 501.008(d) (West 2004). An inmate who files a claim t hat is subject to the grievance system must file an affidavit stating the date a grievance was filed and the dat e a written decision was received, 1 along with a copy of the written decision. See T EX
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. C ODE A NN . § 14.005(a); Bishop v. Lawson , 131 S.W.3d 571, 574 (Tex.App.—Fort Worth 2004, pet. denied). If the inmate fails to file a cl aim within thirty-one days of receiving a final decision from the grievance system, the trial court must dismiss the suit. Id. § 14.005(b); Wolf v. Tex. Dep’t of Crim. Justice , 182 S.W.3d 449, 450 (Tex.App.— Texarkana 2006, pet. denied).

1 We note that Johnson’s affidavit conc erning exhaustion of administrative remedies fails to provide all of the informa tion required by Section 14.005(a). While he does include relevant dates regarding co rrespondence he alleges to have sent to Murphy, he does not refer to any relevant dat es regarding the filing or disposition of grievance number 2010182233.8 Here, though Johnson claims to have been denied the right to appeal case number 2010026065, from the record neither we nor t he trial court could determine whether he sought or received a final administrative decision on the particular issues on which he based his allegations against Co nner and Murphy. Based on the information and record provided, a court could not det ermine when the identified grievance was filed, the subject matter of t hat grievance, and when or if t here was a final administrative ruling on the matters raised. Therefore, it was impossible for the trial court to conclude that Johnson had exhausted his administrative re medies or had filed his lawsuit within thirty-one days of receipt of a final administr ative determination. Regardless of whether the trial court misinterpreted the nature of the re lief Johnson requested, the trial court could have concluded that Johnson fail ed to establish that he exhausted his administrative remedies. Accordingly, the trial court did not abus e its discretion by dismissing the suit. See Hamilton , 298 S.W.3d at 340. We overrule Johnson’s point of
error. Conclusion Having overruled Johnson’s point of erro r, we affirm the tr ial court’s judgment.

Mackey K. Hancock Justice