NUMBER 13-21-00002-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG 

 

DANIEL AIELLO, TDCJ # 2176225, Appellant,

v.

BRIAN COLLIER, ET AL., Appellees.

 

On appeal from the 36th District Court 

of Bee County, Texas.

 

MEMORANDUM OPINION

Before Chief Justice Contreras and Justices Benavides and Longoria

Memorandum Opinion by Justice Longoria

At all times relevant to this case, appellant Daniel Aiello, was an inmate

incarcerated in the McConnell Unit of the Texas Department of Criminal Justice–

Correctional Institutions Division (TDCJ) in Beeville, Texas, and he appeals from the trial 

court’s judgment dismissing as frivolous his suit against appellees Brian Collier, Donna 
2

Bell, Johnny Armstrong, and R. Samaniego, employees of the TDCJ. See TEX. CIV. PRAC.

& REM. CODE ANN. §§ 14.001–.014.

In three issues, which we construe as one, Aiello argues that the trial court erred 

by “misinterpret[ing]” and “ignor[ing]” § 501.099 of the Texas Government Code, and this 

error has resulted: (a) in TDCJ failing to transfer him to a Colorado prison to allow him to 

be located closer to his family or place of residence, as he contends is permitted under 

Article 42 of the Texas Code of Criminal Procedure (the Interstate Corrections Compact); 

and (b) the denial of protected and guaranteed rights under the United States Constitution 

and Texas state laws. See U.S. CONST. amends. I, VIII, XIV; TEX. GOV’T CODE ANN. 

§ 501.099; TEX. CODE CRIM. PROC. ANN. art. 42.19.

1 We affirm.2

I. BACKGROUND

Aiello filed this action pro se and in forma pauperis under Texas Civil Practice and

Remedies Code Chapter 14. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 14.001–.014. In 

his petition filed on August 31, 2020, he alleged that his visitation rights were

unreasonably restricted by TDCJ. He contends TDCJ’s alleged actions contravene the 

Due Process Clause of the Fourteenth Amendment and implicate the Eighth and First 

Amendments. See U.S. CONST. amends. I, VIII, XIV. He requested to be transferred to 

1 Aiello refers to § 501.099 of the Texas Code of Criminal Procedure in his briefing. However, that 

section does not exist under the Texas Code of Criminal Procedure. Given that Aiello included the text of 

the statute in his pleading and a portion in his briefing, we have determined that he is referring to § 501.099 

of the Texas Government Code. See TEX. GOV’T CODE ANN. § 501.099 (titled “Family Unity and 

Participation”).

2 Accordingly, we dismiss as moot all pending motions, including the enumerated motion filed on 

February 11, 2021, which we previously carried with the case.
3

his state of residence, Colorado, to enable him to have visits and emotional support. He 

further sought injunctive relief compelling appellees to comply with § 501.099 of the Texas 

Government Code and Article 42.19 of the Texas Code of Criminal Procedure. See TEX.

GOV’T CODE ANN. § 501.099 (directing TDCJ to “adopt and implement policies that 

encourage family unity while an offender is confined”); TEX. CODE CRIM. PROC. ANN. art. 

42.19. He alleged that he has been illegally denied this transfer since October of 2019.3

Included as attachments to his pleading were correspondence Aiello purportedly 

sent to Collier, Bell, and Armstrong in an attempt to resolve his issue without court 

intervention. Additionally, he included a Step 1 Offender Grievance Form dated July 8, 

2020. The Step 1 grievance contained a written response from TDCJ, which also reflected 

a return to offender date of July 24, 2020.

The Texas Office of the Attorney General (OAG) filed an amicus curiae advisory 

urging the trial court to dismiss Aiello’s suit. The OAG contended that Aiello’s suit did not 

comply with the procedural and substantive requirements of Chapter 14. Procedurally, 

the OAG contended that Aiello failed to include all previous filings in his affidavit or to

provide adequate proof of exhaustion. See TEX. CIV. PRAC. & REM. CODE ANN.

3 We note that Aiello filed a “Motion to Amend and Supplemental [sic] Pleadings” in which he 

attempted to clarify his claims, requested removal of “Defendant Johnny Armstrong and Defendant R. 

Samaniego,” and asked to “strike all other claims filed in [his] previous petition [that were not clarified].”

However, the record does not contain a ruling on the motion and the trial court did not have to permit Aiello 

to amend his pleading before dismissal. See TEX. CIV. PRAC. & REM. CODE ANN. § 14.003(a)(2) (“A court 

may dismiss a claim, either before or after service of process, if the court finds that . . . the claim is 

frivolous. . . .”); see also Conely v. Tex. Bd. of Crim. Just., No. 13-07-00395-CV, 2008 WL 2764567, at *4 

(Tex. App.—Corpus Christi–Edinburg July 17, 2008, no pet.) (mem. op.) (“We find no provision in chapter 

14 that requires that an inmate be given an opportunity to amend his pleadings before dismissal, either 

upon request or sua sponte by the trial court.”).
4

§§ 14.004(a), 14.005. Additionally, the OAG contended that Aiello failed to state a valid 

claim for relief because: (1) there is no recognized private cause of action for violations 

of civil rights under the Texas Constitution or the Texas Code of Criminal Procedure; (2) 

his claims are barred by sovereign immunity; (3) his claims are barred by the Texas Tort 

Claims Act; (4) he cannot establish a violation of a federally protected right under the 

Interstate Corrections Compact; (5) his claims are barred by official immunity; (6) his 

claims are barred by Eleventh Amendment immunity; and (7) his claims are barred by 

qualified immunity. See id. §§ 101.021, 101.106(f), TEX. GOV’T CODE ANN. § 501.099; TEX.

CODE CRIM. PROC. ANN. art. 42.19.

Aiello later filed an “Affidavit for Step 1 and Step 2 Grievances” in which he 

referenced a Step 1 being answered “on or about 09/30/20,” and in which he stated that 

“[he had] never received a written extension, an answer for the [S]tep 2 and neither [S]tep 

1 or 2 returned to the plaintiff.” He also stated in the affidavit that “[a] [S]tep 2 grievance 

was filed on 10/1/20.” Included with the affidavit was another Step 1 Offender Grievance 

Form, dated September 14, 2020, and a Step 2 Offender Grievance Form, dated October 

1, 2020, both pertaining to the same subject matter as Aiello originally grieved on July 8. 

Neither of these grievance forms are accompanied by responses from TDCJ.

Without holding a hearing, on December 7, 2020, the trial court signed an order 

dismissing Aiello’s suit with prejudice as frivolous and for failure to comply with Chapter 

14 of the Texas Civil Practice and Remedies Code. Aiello now appeals.
5

II. FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES

Before we address Aiello’s argument, we must determine whether, as the OAG 

asserts, Aiello has failed to exhaust his administrative remedies. See TEX. CIV. PRAC. &

REM. CODE ANN. § 14.005(a); see also Evans v. Tiffin, No. 13-09-00455-CV, 2010 WL 

3279500, at *2 (Tex. App.—Corpus Christi–Edinburg Aug. 19, 2010, pet. denied) (mem. 

op.).

A. Standard of Review and Applicable Law

Chapter 14 of the Texas Civil Practice and Remedies Code governs inmate 

litigation where an affidavit or unsworn declaration of inability to pay costs is filed by the 

inmate. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 14.001–.014. When, as here, a trial 

court dismisses a claim as frivolous without a hearing, the issue on appeal is limited to 

whether the claim had no arguable basis in law. See Smith v. Tex. Dep’t of Crim. Just.–

Institutional Div., 33 S.W.3d 338, 340 (Tex. App.—Texarkana 2000, pet. denied); see also

Catland v. Blackwell, No. 13-16-00567-CV, 2017 WL 3725725, at *2 (Tex. App.—Corpus 

Christi–Edinburg Aug. 30, 2017, no pet.) (mem. op.). This is a legal issue that we review 

de novo. See Moreland v. Johnson, 95 S.W.3d 392, 394 (Tex. App.—Houston [1st Dist.] 

2002, no pet.).

A claim does not have an arguable basis in law if the inmate failed to exhaust his 

administrative remedies. See Hamilton v. Williams, 298 S.W.3d 334, 339 (Tex. App.—

Fort Worth 2009, pet. denied). Section 501.008 of the Texas Government Code precludes 

an inmate from filing a claim until he has exhausted his remedies through the grievance 
6

system. See TEX. GOV’T CODE ANN. § 501.008(a) (“[A] remedy provided by the grievance 

system is the exclusive administrative remedy available to an inmate for a claim for relief 

against [TDCJ] that arises while the inmate is housed in a facility operated by [TDCJ] or 

under contract with [TDCJ].”); see also Evans, 2010 WL 3279500, at *2. If an inmate fails 

to exhaust his administrative remedies, we may affirm a dismissal even if the ground was 

not presented in a dismissal motion. See TEX. CIV. PRAC. & REM. CODE ANN. § 14.005; see 

also Nelson v. Davis, No. 13-19-00122-CV, 2020 WL 2213965, at *2 (Tex. App.—Corpus 

Christi–Edinburg May 7, 2020, no pet.) (mem. op.).

B. Analysis

Here, Aiello failed to exhaust his administrative remedies because the record does 

not contain a written decision by the highest authority provided for in the grievance system 

nor an affidavit stating when he received such written decision. See TEX. CIV. PRAC. &

REM. CODE ANN. §§ 14.005(a)(1) (requiring inmate to file with the court “[a]n affidavit or 

unsworn declaration stating the date that the grievance was filed and the date the written 

decision described by [§] 501.008(d) [of the Texas] Government Code, was received by 

the inmate”); (a)(2) (requiring inmate to file with the court “a copy of the written decision 

from the grievance system”); TEX. GOV’T CODE ANN. § 501.008(d)(1) (“An inmate may not 

file a claim in state court regarding operative facts for which the 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[.]”); 

Camacho v. Rosales, 511 S.W.3d 82, 87, n.2 (Tex. App.—El Paso 2014, no pet.) 
7

(“TDCJ’s inmate grievance procedure is a two-step process . . . . If the inmate receives 

an adverse Step 1 decision, the inmate has 15 days to file a Step 2 grievance.”); see also 

Nelson, 2020 WL 2213965, at *2 (concluding that inmate “did not exhaust all the 

administrative remedies and has not presented an appeal with an arguable basis in the 

law” after reasoning that inmate’s Step 2 grievance, from which his appeal was taken, 

was returned as untimely filed and inmate’s appeal “[d]oes not contain a ‘written decision’ 

by the highest authority in the grievance system”).

Instead, the record shows that Aiello completed a Step 1 grievance on July 8, and 

he received a written response on July 24. He then later completed another Step 1 

grievance dated September 14, followed by a Step 2 grievance dated October 1, but 

neither the September 14 nor the October 1 grievance, as they appear in the record,

contain a written response from TDCJ. Additionally, while Aiello’s “Affidavit for Step 1 and 

Step 2 Grievances” refers to an answer received on or about September 30 on a Step 1 

grievance, it also states that “[n]either [the] Step 1 or 2 [were] returned to [him][,]” which, 

at a minimum, undermines his statement that he received a response, as the response 

would be on the grievance form. Further, while the “Affidavit for Step 1 and Step 2 

Grievances” mentions a Step 2 grievance, it only mentions that it was “[f]iled on 10/1/20,” 

as opposed to Aiello receiving a response from TDCJ to his filing.4

4 We also observe that Aiello filed an “Affidavit for Grievances” purportedly executed on December 

3, 2020 but filed on December 21, 2020, after the dismissal. Nonetheless, even if we considered this 

affidavit as timely, it also does not contain a written decision by the highest authority in the grievance 

system. Instead, it references, in pertinent part, the Step 1 completed on July 8, including part of TDCJ’s 

decision, and states that he sent “[a] step 1 grievance with an ambiguous response[,] a step 2 grievance 

unanswered by [TDCJ] . . . violating [their] policy by not replying by certain required date. Sent to [trial court] 

in . . . Oct[ober] 2020.” As referenced in this memorandum opinion, the record contains only three offender 
8

Accordingly, because Aiello failed to exhaust his administrative remedies, his suit 

lacks an arguable basis in law, and the trial court did not err in dismissing his suit as 

frivolous. 5 See TEX. CIV. PRAC. & REM. CODE ANN. § 14.003; see also Leachman v. 

Dretke, 261 S.W.3d 297, 311–12 (Tex. App.—Fort Worth 2008, no pet.); see also Nelson, 

2020 WL 2213965, at *2.

Moreover, because Aiello did not timely proceed with the second step of the 

grievance process triggered on July 24, the defect in his pleading cannot be remedied by 

re-pleading. See Camacho, 511 S.W.3d at 87, n.2 (“If the inmate receives an adverse 

Step 1 decision, the inmate has 15 days to file a Step 2 grievance.”). Therefore, the trial 

court did not err in dismissing his suit “with prejudice.” See Harris County v. Sykes, 136 

S.W.3d 635, 639 (Tex. 2004) (“In general, a dismissal with prejudice is improper when 

grievance forms—the Step 1 completed on July 8, the Step 1 completed on September 14, and the Step 2 

completed on October 1—and none of these three forms contain a written decision by the highest authority 

provided for in the grievance system.

5 While we observe that Aiello’s Step 1 grievance dated September 14 and his Step 2 grievance 

dated October 1 do not contain “written decisions” from the highest authority in the grievance system,

implying that the two-step grievance procedure is incomplete and a stay warranted to allow time for 

completion, a stay is not necessary here because it would be futile. See TEX. CIV. PRAC. & REM. CODE ANN. 

§ 14.005(c). Specifically, Aiello’s Step 1 grievance dated September 14 is substantially similar to his original 

Step 1 grievance completed on July 8, and he already received a written response to his original Step 1 

grievance on July 24. See generally McCullough v. Tex. Dep't of Crim. Just.-Inst. Div., No. 2-07-072-CV, 

2008 WL 704419, at *1 (Tex. App.—Fort Worth Mar. 13, 2008, no pet.) (mem. op.) (stating in the 

background of the memorandum opinion that “[w]hen the prison officials failed to return McCullough's 

wedding band and his eyeglasses, he pursued administrative remedies by filing grievances on June 2 and 

June 7, 2004, which were returned to him unprocessed because the issue had ‘already [been] grieved’”). 

Nevertheless, even if we construed his Step 1 grievance filed on September 14 as a Step 2 grievance, it 

would be untimely, and thus would lack a written decision by the highest authority in the grievance system. 

See Camacho v. Rosales, 511 S.W.3d 82, 87, n.2 (Tex. App.—El Paso 2014, no pet.) (“If the inmate 

receives an adverse Step 1 decision, the inmate has 15 days to file a Step 2 grievance.”); see also Nelson, 

v. Davis, No. 13-19-00122-CV, 2020 WL 2213965, at *2 (Tex. App.—Corpus Christi–Edinburg May 7, 2020, 

no pet.) (mem. op.) (explaining that inmate’s Step 2 grievance was returned as untimely and concluding 

that he did not exhaust his administrative remedies because his appeal “does not contain a ‘written decision’ 

by the highest authority in the grievance system”).
9

the plaintiff is capable of remedying the jurisdictional defect.”); Leachman, 261 S.W.3d at 

302, 311–12 (“[A]lthough a dismissal with prejudice is improper if the error can be 

remedied, because [inmate] failed to timely file his [Step 1] grievances as to [three TDCJ 

employees], his error as to these claims cannot be remedied; his fifteen-day deadline to 

file offender grievance forms on those claims has passed. Therefore, it was not an abuse 

of discretion for the trial court to dismiss these claims with prejudice.”); Hamilton, 298 

S.W.3d at 342 (explaining that because “[inmate] cannot remedy the error through a more 

specific pleading, the trial court did not abuse its discretion by dismissing [inmate’s] 

privacy claim with prejudice under chapter fourteen[,]” where inmate failed to “[f]ollow 

through and reassert [a] claim [for violation of his constitutional right to privacy in his 

person] in the second step of the grievance process”); Thomas v. Knight, 52 S.W.3d 292, 

295–96 (Tex. App.—Corpus Christi–Edinburg 2001, pet. denied) (sustaining inmate’s first 

issue where inmate failed to state operative facts for which relief is sought in his affidavit 

of previous filings after explaining in pertinent part that “[i]f the error could be remedied, 

then a dismissal with prejudice is improper”); see also Kelly v. Mendoza, No. 13-11-

00322-CV, 2012 WL 4038507, at *1 (Tex. App.—Corpus Christi–Edinburg Sept. 13, 2012, 

no pet.) (mem. op.) (“A trial court may dismiss a claim with prejudice under section 14.005 
10

when the failure to exhaust administrative remedies cannot be corrected.”).

6 We overrule 

Aiello’s issue.7

III. CONCLUSION

We affirm the trial court’s judgment.

NORA L. LONGORIA

Justice

Delivered and filed on the

28th day of April, 2022.

6 In Crain v. Prasifka, this Court held that the dismissal of an inmate’s suit under § 14.005 for the 

failure to exhaust administrative remedies should have been “without prejudice” because “[a] dismissal for 

failure to comply with the conditions in [§] 14.005 is not a dismissal on the merits, but rather an exercise of 

the trial court’s discretion under [C]hapter 14.” 97 S.W.3d 867, 870 (Tex. App.—Corpus Christi–Edinburg 

2003, pet. denied). However, after we decided Crain, the Texas Supreme Court clarified the law regarding 

this matter in Peña v. McDowell, 201 S.W.3d 665, 665–66 (Tex. 2006) (per curiam). In Peña, the trial court 

dismissed an inmate's suit with prejudice as “frivolous or malicious” because the inmate failed to comply 

with the § 14.004 filing requirements—specifically, for failing to list the operative facts of any suit previously 

filed pro se by the inmate. See id. The court of appeals affirmed the dismissal but reformed the judgment 

to read “without prejudice.” Id. at 665. The Texas Supreme Court held that “[u]nder Texas law, [a dismissal 

for failure to comply with § 14.004] may be corrected through an amended pleading, so a dismissal with 

prejudice is not appropriate.” Id. at 666; see McLean v. Livingston, 486 S.W.3d 561, 564 (Tex. 2016). 

Accordingly, we follow the relevant supreme court authority herein.

7 Because we conclude that Aiello’s claims have no arguable basis in law, we need not address 

the specific arguments he makes on appeal. See TEX. R. APP. P. 47.1.