### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-12-00742- CV

Juan Rob ert o Rodriguez, Appellant

v. Texas Depart m ent of Crim inal Ju stice and Texas Board of P ardons an d Par oles, Appellees

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 261 ST JUDICI AL DISTRICT NO. D-1 -GN-1 2-0 0077 , H ONO RAB LE GUS J. STRAUSS, JR., J UDGE P RESIDING

M E M O R A N D U M O P I N I O N
Appellant J uan Roberto Rodrigue z filed a petition in the trial court alleg ing fr au d , tortious interfe renc e with a contract, and special d am ages, claims rela ted t o whether he shoul d be serving a twenty -y ear sentenc e or a twenty -five y ear sentenc e. He arg ued that his classifica tion by 1 appellee s the Texas Depa rtment of Criminal J ustice and the Texas Boa rd of Pardons and Paroles conflicts with the judgme n t signe d by the trial court. Appellee s responde d and filed a motion to dismiss the s u i t as frivolous under chapte r 14 of the civil prac tice and reme dies code. Appellee s noted that R o d ri gu ez had not filed (1) an aff idavit providing information about other lawsuits he had broug ht while an inmate or (2) an aff idavit stating the dates on which h e filed a g rieva nce and rece ived a written decision. See Tex. Ci v. Prac. & Rem. Code §§ 14.004, .005. Two m onths

Rodrigue z asserts that he pled g uilty to arson in exchang e for a twenty -y ear sentenc e but 1 that appellee s have c lassified him as serving a twenty -five- y ear

sentenc e.later, the trial court dismiss ed the suit “for failure to co m p ly with Chapter 14 of the Texas Civil

Practice and Remedies Code.” Rodrigue z appea ls, complaining that the court abused its discretion
in dismiss ing the suit, thus depriving him of due course of law, and that the trial court should have construed a

letter he wrote to a

ppellees te n day s befor e filing his suit as a g rieva nce. Rodrigue z’s suit is subject to the require ments of chapte r 14. S ee i d

. § 1 4

. 002(a) (cha pter 14 applies to suit broug ht by inmate in which inmat e fi l es aff idavit or decla

ration of inability to pay costs). There fore , Rodrigue z was require d to file an aff idavit descr ibing any previous lawsuits, other than actions under the family code. See id

. § 14.004(a)

. Howeve r, despite the State’s pointing out the omission two months befor e the suit was dismiss ed, Rodrigue z did not reme dy the

err or by filing a previous-la wsui t s af fi d avit. Thus, the trial court did not abuse its discretion in

2
dismiss ing the lawsuit. See Brewer v. Simental , 268 S.W .3d 763, 767 (Tex. App.—Waco 2008, no pet.) (“F ailure to fulfill those proce dural require ments [of chapte r 14] will result in dismiss al of an inmate’s suit. ”) ; Jo sey v. Bell Cnty. Law Enforceme nt Ctr. , No. 03-02-00612- CV, 2003 WL 1088450, at *1 (Tex. App.—Austin Mar. 13, 2003, pet. denied) (mem. op.) (whe n inmate does not file proper aff

idavit or decla

ration rela ted t o p re vious lawsuits, “dismissal is not an abuse of

Nor did Rodrigue z file an aff idavit stating whether he filed a g rieva nce rela ted to his claim, 2 altho u gh he did file a response asser ting that his claim was not subject to the g rieva nce proce ss. Be cause Rodrigue z’s suit was proper ly dismiss ed due to his failure to file the require d section 14.004 aff idavit, we need not decide whether his claim, the underly i n g i s s u e o f which is whether he was sentenc ed to twenty or twenty -five y ear s, is subject to the g rieva nce proce ss. See Tex. Civ. Prac. & Rem

. C o d e § 14.005(a) (if claim “is subject to the g rieva nce sy stem established under Section 501.008, Gover

nment Code,” inmate must file aff idavit showing exhaustion of g rieva nce proce ss); Tex. Gov’t C ode § 501.008 (TDCJ shall develop gr ievance sy stem to be ex clusive admini strative reme dy for claims arising ag ainst TDCJ while inmate is in TDCJ fac ility , “other t h an a reme dy provided by writ of habea s corpus challeng ing the validity of an action occur ring befor e the delivery of the inmate to” TDCJ ). 2discretion”) ; Samuels v. Strain , 11 S.W .3d 404, 406-07 (Tex. App.—Houston [1s t Dist.] 2000, no

pet.) (inmate did not provide specific s about ear lier civil suit in previous-la wsuits aff idavit, and court held that beca

use inmate “did not comply with the mandatory require ments of section 14.004(a) (2) with reg ard to suit H-96-2744, the trial court could have proper ly assumed this suit was ‘substantially simil ar’ to the previous suit and, there fore , frivolous”). We overr ule Rodrigue z’s first issue. Be ca u se dismiss al was proper based on his failure to file the previous-la wsuits aff idavit, we need not decide his rema ining issues. We aff irm the trial court’s ju d g me n t d is mi s s in g Ro d r ig u e z’ s s u it f

o r f a il u r e to

c o mp ly w it

h c h a p te r 1 4

. We d is mi s s Ro d

r ig u e z’ s pending motions.

__________________________________________ David Pury ear , J ustice
Be fore J ustices Pury ear , Pemberton, and Rose
Affir med Filed: Jul y

31, 2014

3