Affirmed and Memorandum Opinion filed March 27, 2014.

In The

Fourteenth Court of Appeals

NO. 14-12-00953-CV

GEORGE OLIVAREZ, Appellant

V.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE CORRECTIONAL 

INSTITUTIONS DIVISION, ET AL, Appellee

On Appeal from the 412th District Court

Brazoria County, Texas

Trial Court Cause No. 69711I

MEMORANDUM OPINION

Appellant George Olivarez sued the Texas Department of Criminal Justice 

(the “TDCJ”) and several of its employees for breach of contract and fraud. In his 

sole issue on appeal, Olivarez argues that the trial court erred when it dismissed his 

lawsuit as frivolous. Because Olivarez failed to exhaust his administrative 

remedies, we affirm.
While Olivarez was an inmate at the Wayne Scott Unit in Brazoria County,

Texas, another inmate poured boiling hot water into a plastic trash container. The 

container melted, and the boiling water escaped from the trash can, burning

Olivarez’s feet and ankles. In 2007, he sued the TDCJ and TDCJ employees under 

42 U.S.C. § 1983 and the Texas Tort Claims Act, alleging that the TDCJ 

employees were deliberately indifferent when they failed to prevent the incident. 

Olivarez and the TDCJ settled the lawsuit for $500, payable to Olivarez’s Inmate 

Trust Fund Account. The settlement was conditioned on the Governor’s approval, 

which was to be evidenced by the issuance of a Treasury Warrant. The Texas 

Comptroller did issue a treasury warrant for five hundred dollars payable to 

appellant’s Inmate Trust Fund Account on January 5, 2010. 

On September 12, 2012, Olivarez sued the TDCJ and several TDCJ 

employees in Brazoria County for breach of contract and fraud, alleging that the 

TDCJ breached the settlement agreement, misrepresented facts about his right to 

receive the payment, and failed to disclose the existence of laws that could prevent 

him from receiving payment. The trial court dismissed Olivarez’s case as frivolous 

without conducting a hearing. He timely appealed.

Inmate litigation is governed by chapter 14 of the Texas Civil Practice and 

Remedies Code. Under that chapter, a trial court can dismiss a claim if the trial 

court finds, as it did here, that the claim is frivolous. Tex. Civ. Prac. & Rem. Code 

Ann. § 14.003(a)(2) (West 2002). In making this determination, “the court may 

consider whether: (1) the claim’s realistic chance of ultimate 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 support of the claim; or (4) the claim is substantially similar to a 

previous claim filed by the inmate because the claim arises from the same 

operative facts.” Id. § 14.003(b). Normally, we review the trial court’s decision to 

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dismiss a case under chapter 14 for an abuse of discretion. Nabelek v. Dist. 

Attorney of Harris Cnty., 290 S.W.3d 222, 228 (Tex. App.—Houston [14th Dist.] 

2005, pet. denied); Retzlaff v. Tex. Dep’t of Criminal Justice, 94 S.W.3d 650, 654 

(Tex. App.—Houston [14th Dist.] 2002, pet. denied). However, when a trial court 

dismisses a case without a hearing, we can affirm only if the claim lacks an 

arguable basis in law, and our review of the trial court’s decision is de novo. 

Retzlaff, 94 S.W.3d at 653. A claim has no arguable basis in law if (1) it is based 

on an indisputably meritless legal theory, (2) it is based on wholly incredible or 

irrational factual allegations, or (3) if the inmate failed to exhaust his 

administrative remedies. Nabelek, 290 S.W.3d at 228; Retzlaff, 94 S.W.3d at 653.

Olivarez’s claim has no basis in law because he failed to exhaust his 

administrative remedies. Pursuant to Texas law, the TDCJ has established a system 

for resolving inmate grievances. See Tex. Gov’t Code Ann. § 501.008(a) (West 

2012); Tex. Dep’t of Criminal Justice, Offender Orientation Handbook 52–54 (2004), 

available at http://www.tdcj.state.tx.us/documents/Offender_Orientation_Handbook_English.pdf.

A remedy provided by the grievance system is the inmate’s exclusive remedy for 

claims that arise while the inmate is housed in a facility operated by the TDCJ or 

under contract with the TDCJ. Tex. Gov’t Code Ann. § 501.008(a). An inmate 

cannot file a claim in state court for which the grievance system provides the 

exclusive remedy until (1) the inmate receives a written decision from the highest 

authority provided for in the grievance system or (2) the 180th day after the inmate 

filed the grievance if the inmate has not received the requisite written decision. Id.

§ 501.008(d). An inmate who files a claim in state court that is subject to the 

grievance system must file with the court an affidavit or unsworn declaration 

stating (1) the date the grievance was filed and (2) the date the inmate received the 

written decision. Tex. Civ. Prac. & Rem. Code Ann. § 14.005(a)(1) (West 2002).

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In addition to the requisite affidavit or unsworn declaration, an inmate must file 

with the court a copy of the written decision from the grievance system. Id. § 

14.005(a)(2). Tort claims and breach-of-contract claims against the TDCJ and its

employees are subject to the TDCJ’s grievance 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 the 

department . . . .”) (emphasis added); Tex. Dep’t of Criminal Justice, Offender 

Orientation Handbook 53 (“actions of an employee” and “any other matter within 

the authority of the TDCJ” are subject to the Offender Grievance Procedure); see, 

e.g., Retzlaff, 94 S.W.3d at 654 (upholding trial court’s dismissal of inmate’s 

personal injury claim because the inmate did not allege personal injury in his 

complaints before the grievance system); Loper v. Johnson, No. 09-97-00510-CV, 

1998 WL 544881, at *2 (Tex. App.—Beaumont Aug. 27, 1998, pet. denied) (not 

designated for publication) (upholding trial court’s dismissal of inmate’s breachof-contract and DTPA claims because the inmate failed to exhaust his 

administrative remedies).

Olivarez sued the TDCJ and TDCJ employees for breach of contract and 

fraud while he was an inmate at a facility operated by the TDCJ. He did not allege 

in his petition that he had exhausted his administrative remedies. He did not file the 

affidavit or declaration required by section 14.005 of the Civil Practice and 

Remedies Code, nor did he file a copy of the written decision. Based on our review 

of the record, we conclude that Olivarez’s claims fall within the ambit of 

Government Code section 501.008(a) and that he has failed to exhaust his 

administrative remedies. As a result, Olivarez’s breach-of-contract and tort claims

have no basis in law. See Retzlaff, 94 S.W.3d at 654. 

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We overrule Olivarez’s sole issue on appeal and affirm the trial court’s 

dismissal of his claims.

/s/ Marc W. Brown

Justice

Panel consists of Justices Boyce, Christopher, and Brown.

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