## NO. 12

- 1 2

- 00 234

- C V

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

ROBERT C. MORRIS, § APPEAL FROM THE THIRD APPELLANT

V.
ELIZABETH CROSS, SHE RRI MILLIGAN, § JUDICIAL DISTRICT COURT J OHN BECRAFT, BRYAN G ORDY, CHRISTY HOISINGTON A ND CHERYL LAWSON APPELLEES § ANDERSON COUNTY, TEXAS

MEMORANDUM OPINION
Robert C. Morris appeals from the trial court’s dismissal of his civil suit against Elizabeth Cross, Sherri Milligan, J ohn Becraft, Bryan Gordy, Christy Hoisington, and Cheryl Lawson. The dismissal was rendered pursuant to Chapter Fourteen of the Texas Civil Practice and Remedies
Code. Morris raises two issues on appeal. We affirm.

B ACKGROUND Morris, an inmate, claims that, on January 14, 2010, several individuals harassed him in retaliation for a civil lawsuit that he filed. A few days later, Morris filed a Step 1 Offender Grievance Form with the Texas Department of Criminal Justice

– Correctional Institutions Divisio n (TDCJ

- CID). According to Morris’s grievance, Milligan and Cross, with the assistance of Becraft, confiscated Morris’s legal documents and some other personal property. In response to his grievance, TDCJ

- CID informed Morris that proper procedures were f ollowed and he was not
harassed. Dissatisfied with the response, Morris filed his Step 2 Offender Grievance Form with TDCJ

CID. On March 19, 2010, TDCJ

- CID responded to his Step 2 grievance that he was properly advised at Step 1 and no further action was necessary. According to Morris’s Declaration of2

Exhaustion of Administrative Remedies, Morris received TDCJ

- CID’s response to his Step 2 grievance on March 31, 2010. On May 29, 2012, Morris brought a pro se in forma pauperis suit pursuant to Chapter
Fourt een of the Texas Civil Practice and Remedies Code

. According to his petition, Morris claims that Milligan, Cross, and Becraft violated Morris’s constitutional rights and several Texas laws by confiscating his legal documents and other personal property. Morris also alleges that Gordy, Hoisington, and Lawson failed to follow the proper procedures in processing his Step 1 and Step 2 grievances.
The trial court found Morris’s claims to be “ frivolous or malicious.” Specifically, the trial
court found the re alistic chances of ultimate success of Morris’s claims to be slight and that the waiver of governmental immunity does not apply to property damage, injury, or death “sustained by
inmate

. ” Accordingly, the trial court dismissed Morris’s lawsuit. This appe al followed.

D ISMISSAL OF S UIT In his first issue, Morris argues that the trial court abused its discretion when it dismissed his suit because his claims are not frivolous or malicious. In his second issue, Morris argues that the
trial court abused its discretion when it found his claims “ lack merit to succeed. ”
Standard of Review
We review the trial court ’ s dismissal of a suit filed under Chapter Fourteen under an abuse
of discretion standard. Hickson v. Moya
, 926 S.W.2d 397, 398 (Tex. App.

– Waco 1996, no writ). A trial court abuses its discretion if it acts arbitrarily, capriciously, and without reference to any guiding rules or principles. Lentworth v. Trahan
, 981 S.W.2d 720, 722 (Tex. App.

– Houston [1st Dist.] 1998, no pet.). We will affirm a dismi ssal if it was proper under any legal theory. See Johnson v. Lynaugh , 796 S.W.2d 705, 706

- 07 (Tex. 1990); Birdo v. Ament , 814 S.W.2d 808, 810 (Tex. App.

–

Waco 1991, writ denied). The trial courts are given broad discretion to determine
whether a case shou ld be dismissed because (1) prisoners have a strong incentive to litigate; (2) the government bears the cost of an in forma pauperis suit; (3) sanctions are not effective; and (4) the
dismissal of unmeritorious claims accrue to the benefit of state officia ls, courts, and meritorious
claimants. See Montana v. Patterson , 89 4 S.W.2d 812, 814

- 15 (Tex. App.

– Tyler 1994, no writ).3

Chapter 14 Chapter Fourteen of the Texas Civil Practice and Remedies Code controls suits brought by
an inmate when the inmate file s a n affidavit or unsworn declaration of inability to pay costs. 1 T EX

. C IV

. P RAC

. & R EM

. C ODE A NN

. § 14. 002(a) (West Supp. 201 2)

. The inmate must comply with the procedural requirements set forth in Chapter Fourteen

. Id

. §§ 14.002(a), 14.004, 14.005 (West 2002
& West Supp. 2012 ). If an inmate fails to file suit before the thirty

- first day after the date the inmate receives the written decision from the grievance system, the trial court must dismiss the suit.
Id

. § 14.005(b) (West 2002)

. Additionally, fili ng a claim that is frivolous will result in the dismissal of an inmate’s suit.
See id

. To determine whether a claim is frivolous or malicious, among other potential factors, we consider whether the claim’s realistic chance of ultimate success is slight o r the claim has no arguable basis in law or in fact. Id

. § 14.003(b) (West 2002)

. Application
Morris admits that he received the written decision fro m the grievance system on March 31, 2010. However, he did not file suit in state court until May 29, 20 12. Instead, he sought to amend his pending federal suit to include the new claims of harassment. Because Morris failed to file this
suit before the thirty

- first day after he received the written decision from the grievance system, the
trial court was re quired to dismiss his suit. Id

. § 14.005. Because the trial court’s dismissal of
Morris’s suit was mandatory under applicable law , the trial court did not abuse its discretion in dismissing the suit . We overrule Morris’s first and second issues.

D ISPOS ITION Having overruled Morris’s first and second issues, we affirm the judgment of the trial court.



### B RIAN 

### H OYLE Justice
Opinion delivered June 19 , 2013. Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(PUBLISH)

1 Chapter Fourteen does not apply to an action brought under the Texas Family Code. T EX

. C IV

. P RAC

. & R EM

. C ODE A NN

. § 14.002(b) ( West Supp. 20 1 2).4 

## COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

JUNE 19 , 2013

NO. 12

- 12

- 00234

- CV

ROBERT C. MORRIS , Appellant V. ELIZABETH CROSS, SHERRI MILLIGAN, JOHN BECRAFT, BRYAN GORDY, CHRISTY HOISINGTON, AND CHERYL LAWSON , Appellee s

Appeal from the 3rd Judicial District Court
of Anderson County, Texas. (Tr.Ct.No. 3

- 41714

THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being considered, it is the opinion of this court that there was no error in the judgment. It is therefore ORDERED, ADJUDGED and DECREED tha t the judgment
of the court below be in all things affirmed , and that this decision be certified to the court
below for observance. Brian Hoyle , Justice. Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J

.