### IN THE TENTH COURT OF APPEALS
No. 10
- 14
- 00116
- CV
ISAAC MAHURON , Appellant v. TDCJ , Appellee

From the County Court at Law Walker County, Texas Trial Court No. 11568
- CV

O P I N I O N
On August 1, 2013, Isaac Mahuron, an inmate at the Ellis Unit, filed this suit pro

se against the Texas Department of Criminal Justice (the Dep artment) as an indigent, thus triggering Chapter 14 of the Civil Practice and Remedies Code. 1 See T EX
. C IV
. P RAC
. &
R EM
. C ODE A NN . ch. 14 (West 2002 & Supp. 20 1 4 ). His suit alleges that he suffered a partially amputated finger on a broken window in a dayroom and alleges a premises

-

1 The petition has a certificate of service with a service date of July 17, 2013.Mahuron v. TDCJ Page 2

liability claim under the Texas Tort Claims Act against the Department.
I n compliance with Chapter 14, Mahuron filed with his petition his “ declaration
of previous filings ,” a copy of his certified inmate

- account statemen t , and his “declaration of exhaustion.” 2 See T EX
. C IV
. P RAC
. & R EM
. C ODE A NN . § 14.004 (West Supp. 2014), §
14.005 ( West 20 02 ). The declaration of exhaustion explains under penalty of perjury that, after filing his Step

- 1 Grievance, Mahuron filed his Step

- 2 Grievance by personally handing it to the grievance investigator during a unit lock

- down. After not receiving a written decision on the Step

- 2 Grievance, Mahuron inquired and was informed that there
was no record of his Step

- 2 Grievance being filed. H e did not receive any responses to
h is subsequent attempts to obtain information on the missing Step

- 2 Grievance or to his resubmitted Step

- 2 Grievance. After the Department appeared and answered, Mahuron commenced written discovery and fil ed a summary

- judgment motion that was denied. Almost eight months
after suit had been filed , on March 27, 2014, the Department filed a motion to dismiss under Chapter 14, asserting that Mahuron had not exhaust ed his administrative remedies
under section 1 4.005 because he did not file a copy of the written decision from the prison grievance system. The motion to dismiss did not address the specific allegation s in Mahuron’s declaration of exhaustion about why he was unable to file a copy of the
written deci sion on his Step

- 2 Grievance.

2 B efore the Department appeared and answer ed , Mahuron filed a “motion requesting determination of exhaustion

. ” This motion sets forth the same specific allegations that we detail below, includes corroborating declarations of two other inmates, and requests that the trial court declare that Mahuron has exhausted the administrative remedies available to him . The t rial court denied this motion but did not dismiss Mahuron’s suit sua sponte

. See T EX
. C IV
. P RAC
. & R EM
. C ODE A NN . § § 14.003, 14. 010 (West 2002)

.Mahuron v. TDCJ Page 3

In an order signed on March 30, 2014

— before Mahuron’s response to the motion
to dismiss was filed on April 2

— the then

- trial court judge granted the Department’s motion to dismiss. Mahuron appeals, asserting in his sole issue that the trial court erred and abused its discretion by dismissing his suit for failure to exhaust his administrative
remedies. Generally, the dismissal of inmate litigation under Chapter 14 is reviewed for
abuse of discretion. Brewer v. Simental, 268 S.W.3d 763, 767 ( Tex. App.

— Waco 2008, no pet.). “ A trial court has no discretion to determine what the law is or in applying the law to the facts and, consequently, the trial court’s failure to analyze or apply the law correctly
is an abuse of discre tion.” In re Am

. Homestar of Lancaster, Inc., 50 S.W.3d 480, 483 (Tex. 2001) (orig. proceeding)

. Section 14.005 (a) provides: (a) An inmate who files a claim that is subject to the griev ance system established under Section 501.008, Government Code, sha ll 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.
T EX
. C IV
. P RAC
. & R EM
. C ODE A NN . § 14.005 (a)

. Section 501.00 8(d) provides: (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; orMahuron v. TDCJ Page 4 (2) if the inmate has not received a written decision described by Subdivision (1), the 180th day after the date the grievance is filed.
T EX
. G OV ’ T C ODE A NN
. § 501.008(d) (West 2012).

“ Section 14.005(a)(2) ’ s purpose is to demonstrate that an inmate, proceeding in forma pauperis , has exhausted his or her administrative remedies through the TDCJ ’ s grievance system by providing certain information to the court, including a copy of the
written decisi on from the grievance system.” Garrett v. Borden, 283 S.W.3d 852, 853 (Tex. 2009); see Brewer, 268 S.W.3d at 769. “ An inmate must prove he exhausted all
administrative reme dies within the penal grievance system bef ore initiating a lawsuit.” Wallace v. Tex. Dep’t Crim. Just.

- Inst. Div., 36 S.W.3d 607, 610 (Tex. App.

— Houston [1 st
Dist. ] 2000, pet. denied ). The “proper exhaustion” of the grievance process is accomplished by the inmate’s “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.) (citing Woodford v. N go, 548 U.S. 81, 90

- 91, 126 S.Ct. 2378, 2386, 165 L.Ed.2d 368 (2006)). We have previously stated that if an inmate d oes not strictly comply with section 14.005(a), a trial court does not abuse its discretion in dismissing the suit

. Brewer, 268 S.W.3d at 768

. But a year after our decision in Brewer , the supreme court in Garrett did not require strict compliance, holding that a hand

- typed , verbatim reproduction of the
written decision satisfied s ection 14.005(a)(2)

. Garrett, 283 S.W.3d at 853

- 54. And in response to a prison official’s argument that strict compliance is required, a sister court recently similarly held that an inmate substantially compl ied with section 14.005.Mahuron v. TDCJ Page 5

Camacho v. Rosales,

--- S.W.3d

--- , --- , 2014 WL 2808993, at * 3 (Tex. App.

— El Paso June 20, 2014, no pet.) ; see also Francis v. TDCJ

- CID, 188 S.W.3d 799, 804 (Tex. App.

— Fort Worth 2006, no pet.) (“ we believe that such a hypertechnical application of the statute [§ 14.005] is unnecessary and unjust regarding this particular claim”).
L ike many of our sister courts, we have held that an inmate may substantially comply with section 14.004’s requirements for the inmate’s declaration of previous filings. Washington v. T ex. Dep’t Crim. Just.

- Inst. Div., No. 10

- 04

- 00253

- CV, 2005 WL
1484 037, at *3 (Tex. App.

— Waco June 22, 2005, no pet.) (mem. op.) (citing cases). In Washington , the inmate provided limited information about his previous filings because prison officials and employees had allegedly destroyed his legal materials that he need ed to comply with section 14.004. See id. at *1, 3. Therefore, when an inmate alleged on appeal that a prison employee had destroyed his grievances to explain why he had not
filed a declaration of exhaustion, we cited Washington in not ing that the inmate should
have raised that allegation in the trial court and in indicat ing that the inmate could have attempted to substantially comply with section 14.005 by filing a declaration stating the date that his grievance was filed and the date that he received the written grievance
decision

. Bright v. Quarterman, No.10

- 08

- 00140

- CV, 2010 WL 3036475, at *2 (Tex. App.

— Waco Aug. 4, 2010, no pet.) (mem. op.) (citing Washington , 2005 WL 1484037, at *3)

. Finally, we construe Conely v. Tex. Bd. of Crim. Just. , No. 03

- 10

- 00422, 2011 WL 3890404 (Tex. App.

— Austin Aug. 31, 2011, no pet.) (mem. op.) , as an explan ation of how substantial compliance is built into section 14.005 (a) by its incor poration of section 501.008(d):Mahuron v. TDCJ Page 6

[I] f an inmate has filed a grievance and does not receive a written decision issued by the highest authority in the grievance system, he may file a claim in state court on the 180th day after the grievance was filed. See T EX
. G OV ’ T C ODE A NN
. § 501.008(d)

. Any failure to process Conely’s timely filed gri evances therefore would not deprive him of the right to assert claims arising from the same operative facts in district court.

.... Section 501.008 of the government code would permit Conely to file this claim in state court even if, as he asserts, the grievance he attempted to file was “trashed” or not processed and he never received a written response, provided that he filed his state court claim no sooner than 180 days after filing his grievance. See T EX
. G OV ’ T C ODE A NN
. § 501.008(d)(2)

. Con ely, 2011 WL 3890404, at * 2, 4.
In Conely the court addressed whether an inmate who was alleging that his grievances were being “trashed” or not processed had satisfied section 14.005: In his affidavit of exhaustion of administrative remedies, Conely does no t identify a specific step

- one grievance in which he made a claim that any prison official’s actions violated his right to be free from cruel and unusual punishment. He does aver that “there are other issues and or [sic] constitutional violations noted in plaintiff’s complaint herein that plaintiff attempted to submit a grievance about however these grievances were trashed by defendants.” Even if this general statement could be construed to refer to the alleged Eighth Amendment violation, Conely does not state the date on which the grievance was filed as required by section 14.005(a)

. Id. , 2011 WL 3890404, at *4. The court then explained what an inmate should do in the situation of a missing grievance or the lack of a written response to a grievance: When no written response has been received, an inmate can satisfy the requirements of civil practice and remedies code section 14.005 by stating the date that his grievance was filed and demonstrating that 180 days have passed without his receiving a writt en decision from the grievance system. Conely’s affidavit provides no information regarding the date he attempted to file a grievance complaining of the alleged violation of his Eighth Amendment rights and therefore fails to comply with section 14.005(a).Mahuron v. TDCJ Page 7

Accordingly, the trial court acted within its discretion in dismissing Conely’s claim. Brewer, 268 S.W.3d at 768.
Id.
W e thus hold that an inmate may substantially comply with section 14.005

. To be clear, w e are not stating that an inmate is not required to exhaust the administrative remedy of the prison grievance system

. Rather, if the grie vance system provides the exclusive administrative remedy for a claim, an inmate must exhaust that administrative remedy and must file an affidavit or unsworn declaration of exhaustion. T EX
. G OV ’ T C ODE
A NN
. § 501.008(d)(2); T EX
. C IV
. P RAC
. & R EM
. C ODE A NN . § 14.005(a). I f the inmate cannot strictly comply with section 14.005(a) by provid ing a copy of the written decision and by stating the date of the written decision , the inmate may substantially comply with section 14.005(a) by filing an affidavit or unsworn declaration that states the filing dates of his Step

- 1 and Step

- 2 grievances and that specifically details why the inmate cannot state the
date of the w ritten decision from the grievance system and cannot provide a copy of that
written decision. See Conely, 2011 WL 3890404, at *4; Bright, 2010 WL 3036475, at *2.
We now turn to the record to determine whether Mahuron ’ s declaration of
exhaustion establish e s that he substantially complie d with section 14.005(a). In his declaration of exhaustion, Mahuron states :

 H e filed his Step

- 1 grievance on March 17, 2013 , and the grievance number is #2013115312

.

 H e received a response on May 1, 2013 that the broken wi ndow ha s been fixed. Mahuron adds that the window had not been fixed and that the response did not address his injury

.Mahuron v. TDCJ Page 8

 On May 10, 2013, he submitted his Step

- 2 grievance to Unit Grievance Investigator (UGI) Brewer by personally handing it to her when she visited his wing because the Elli s Unit was on lockdown for a semi

- annual shake down.

 B ecause he did not receive a response to his Step

- 2 grievance or an extension, on June 25, 2013, he submitted an I

- 60 (request for information) to UGI Brewer, who Mahuron claims responded as follows: “Grievance #2013115312 was closed on 5/01/13 for Step 1. There is no record in the computer of Step

- 2 being filed.” 3

 O n June 27, Mah uron submitted to Brewer a duplicate Step

- 2 Grievance and another I

- 60 that he claim s stated: Ms. Brewer: Concerning Grievance #2013115312, on Friday May 10, 2013, which was the last day of the semi

- annual lockdown/shakedown, you came to the wing, J

- 24, that morning picking up grievances at which time I personally handed you my Step

- 2 G rievance #2013115312 with the Step

- 1 attached. Would you PLEASE check your files, including the file folder you carry, to see if my Step

- 2 was inadvertently misplaced, and if so, process it accordingly. If you are still unable to locate it, would you all ow me to resubmit the attached duplicate Step

- 2 that I maintained for my files.
Your assistance in th is matter is GREATLY appreciate [ sic ].

 On July 3 , Mah uron submitted to Brewer another I

- 60 that he claims stated: Ms. Brewer: On 6/26/13 I submitted an I

- 60 to you concerning Step

- 2 Grievance #2013115312, along with a copy of that Step

- 2. Would you please inform me: if you found my previously submitted Step

- 2 Grievance #2013115312; if you have processed my previously submitted Step

- 2 #2013115312; if yo u have processed the resubmitted Step

- 2 #2013115312. Your continued assistance in this matter is appreciated.

 After getting no response to th e I

- 60 requests, Mahuron then sent a complaint letter dated July 12 to Sandra K. Murphy, TDCJ G rievance Manager, a nd that letter sets forth the above history. A copy of this letter is attached to Mahuron’s declaration.

3 See Garrett, 283 S.W.3d at 853

- 54 (holding that inmate may provide verbatim reproduction of the written grievance decision )

.Mahuron v. TDCJ Page 9

The Department’s motion to dismiss does not address any of the specific allegations in Mahuron’s declaration ; it claim s only that inmates “should no t be allowed to circumvent the exhaustion requirement of Chapter 14 by summarily alleging they exhausted their administrative remedies when they did not.” We note that, because of
its numerous and specific factual assertions, Mahuron’s declaration was readily
controvertible by the Department

. 4 Mahuron’s response to the Department’s motion to dismiss similarly sets forth the above history and includes as corroboration the declarations of two other inmates who both state under penalty of perjury that the y observed Mahuron hand his Step

- 2 Grievance to UGI Brewer on May 10, 2013. On appeal, the Department’s brief again asserts that inmates should not be
allowed to summarily alleg e that they exhausted their administrative remedies. We agree, but Mahuron’s declaration is not a summar y alleg ation that he exhausted his
remedies. 5 Rather, it specifies his attempts to exhaust the prison grievance system and includes the filing dates of his grievances

. The Department next asserts that Mahuron “complains that his Step 2 grievance was not received by the Unit Grievance Investigator, only proving his failure to exhaust.” Mahuron, however, is not complaining that his Step

- 2 Grievance was not received, nor is

4 A trial court may dismiss a claim if the court finds that “ the inmate filed an affidavit or unsworn declaration required by this chapter that the inmate knew was false. ” T EX
. C IV
. P RAC
. & R EM
. C ODE A NN . § 14.003 (a)(3).

5 An inmate’s summary or conclusory allegation that he exhausted his administrative remedies in the prison grievance system would not substantially comply with section 14.0 05(a). See, e.g., Conely, 2011 WL 3890404, at *4 ( “ Conely’s affidavit provides no information regarding the date he attempted to file a grievance complaining of the alleged violation of his Eighth Amendment rights and therefore fails to comply with sectio n 14.005(a).” )

.Mahuron v. TDCJ Page 10

he claiming that he exhausted the grievance system and received a written decision on his Step

- 2 Grievance. Instead, he a sserts with factual specifici ty that he did deliver his Step

- 2 Grievance to UGI Brewer. H is declaration admits that he did not get a wri tten Step

- 2 decision, and he explains why he did not get it and could not file it with his
declaration

. Mahuron contends that he did everything that he possibly could do to exhaust his administrative remedies within the prison grievance system, and he was left
with two choices

— abandon his premises

- liability claim for his partially amputated finger , or file suit with a declaration of exhaustion that explain s his efforts to exhaust the prison grievance system

. Based on the record, we conclude that Mahuron substantially complied with section 14.005(a). See Conely, 2011 WL 3890404, at *4 ; see also Bright, 2010 WL 3036475, at *2 (indicating that inmate could have attempted to substantially comply with section 14.005 by filing declaration stating date grievanc e was filed and date he received written grievance decision ).
U nder Government Code section 501.008(d) (2) , because Mahuron did not receive a written grievance system decision, he could file his suit 180 days after the date his grievance was filed. See Conely, 2011 WL 3890404, at *4 (citing T EX
. G OV ’ T C ODE A NN
. § 501.008(d)(2) ). Mahuron’s Step

- 1 Grievance was filed on March 17, 2013. His petition was filed on August 1, 2013 after being mailed by him on July 17, 2013 ( approximately 120 days after his gr ievance was filed )

. Mahuron ’s suit was thus filed before the expiration of 180 days after his grievance was filed , but s ection 14.005(c) provides : “ 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 permitMahuron v. TDCJ Page 11

completion of the grievance system procedure. ” T EX
. C IV
. P RAC
. & R EM
. C ODE A NN . §
14.005 (c)

. Because the issue is not before us, we express no opinion on the applicability
of sectio n 14.005(c) upon remand, but w e again note that the Department did not file its
motion to dismiss until almost eight months after suit was filed. In conclusion, w e sustain Mahuron’s sole issue , reverse the trial court’s dismissal
order , and remand this ca se for further proceedings consistent with this opinion

.

REX D. DAVIS Justice Before Chief Justice Gray, Justice Davis, and Justice Scoggins (Chief Justice Gray concurs with opinion ) Reversed and remanded Opi nion delivered and filed Octo ber 15 , 2015 [CV06]