Julio Perez, Jr. v. Texas Department of Criminal Justice

• Court: Court of Appeals of Texas
• Decided: February 20, 2015
• Docket: 06-14-00065-CV
• Status: Published

Opinion

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06-14-00065-CV

JULIO PEREZ, JR., Appellant

V.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE, ET AL., Appellees

On Appeal from the 5th District Court Bowie County, Texas Trial Court No. 13C1819-005

Before Morriss, C.J., Moseley and Carter*, JJ. Memorandum Opinion by Chief Justice Morriss

____________________________________ *Jack Carter, Justice, Retired, Sitting by Assignment MEMORANDUM OPINION The lawsuit of Julio Perez, Jr., claims that certain personnel of the Texas Department of

Criminal Justice (TDCJ) saw another inmate squirt a concoction of feces and urine on Perez and

his property and did nothing to stop the behavior or punish the wrongdoer. The trial court

dismissed Perez’ lawsuit as untimely filed. We affirm the trial court’s dismissal.

Perez stated in his petition that the offending act occurred June 21, 2013. It is

uncontested that Perez initially followed the requirements of pursuing his claim by pursuing

step-one and step-two of the grievance procedure. 1 After receiving the October 9 step-two

ruling, Perez filed this lawsuit. In his pro-se brief, Perez complains that, because his petition was

timely filed, the trial court erred by dismissing his suit.

The record supports the trial court’s finding that the petition was not filed within the

requisite thirty-one-day period. See TEX. CIV. PRAC. & REM. CODE ANN. § 14.005(b) (West

2002). Perez argues, however, that thirty-one days did not elapse between the date the ruling

was delivered to him by prison mail and the date his petition was placed in the prison mail.

A trial court’s decision to dismiss a lawsuit brought by an inmate is reviewed for an

abuse of discretion. Lilly v. Northrep, 100 S.W.3d 335, 336 (Tex. App.—San Antonio 2002, pet.

denied). We will find an abuse of discretion only when the ruling under review is made without

1 An inmate is required to demonstrate to the court that the grievance procedures have been exhausted by filing a declaration or affidavit indicating the date he filed the grievance and the date he received the written decision. TEX. CIV. PRAC. & REM. CODE ANN. § 14.002(a) (West Supp. 2014); Garrett v. Borden, 283 S.W.3d 852, 853 (Tex. 2009). The record indicates, and the parties agree, that grievance procedures were properly pursued and exhausted in this case.

2 any basis in guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d

238, 241–42 (Tex. 1985).

An inmate who files a claim, such as a suit under the Texas Tort Claims Act, that is

subject to the grievance system must file both (1) an affidavit or unsworn declaration stating the

date the grievance was filed and the date the written decision was received by the inmate and

(2) a copy of the written decision from the grievance system. TEX. CIV. PRAC. & REM. CODE

ANN. § 14.005(a) (West 2002); Lilly, 100 S.W.3d at 336; Wallace v. TDCJ, 36 S.W.3d 607, 610

(Tex. App.—Houston [1st Dist.] 2000, pet. denied). The court shall dismiss a claim if the inmate

fails to file the claim before the 31st day after the date the inmate receives the written decision

from the grievance system. TEX. CIV. PRAC. & REM. CODE ANN. § 14.005(b); Wallace, 36

S.W.3d at 610–11. 2 A pro se inmate’s civil petition is deemed filed when given to prison

authorities for mailing. Warner v. Glass, 135 S.W.3d 681 (Tex. 2004). No evidence in this

record compels the trial court to find that Perez gave his petition to prison authorities before

November 25, 2013, the date it was actually mailed to the district clerk to be filed.

In this case, Perez’ petition states the date on which he received the order and contains a

section that he labels an unsworn declaration restating the relevant dates, but which is of dubious

effect. 3 We need not rule on the efficacy of Perez’ declaration, however.

2 We also recognize that, because the timetables set out by Chapter 14 are not subject to modification by rule, Rule 5 of the Texas Rules of Civil Procedure does not apply in these cases. TEX. CIV. PRAC. & REM. CODE ANN. § 14.014 (West 2002). 3 Although Perez cites to the correct section of the Code that authorizes the use of an unsworn declaration, that section also provides language to be used in making an unsworn declaration declaring “under penalty of perjury that the foregoing is true and correct.” TEX. CIV. PRAC. & REM. CODE ANN. § 132.001(e) (West Supp. 2014). His unsworn declaration states that such a declaration may be used and contains the perjury language, but only as a 3 Applying the above rules, even assuming that the “unsworn declaration” was sufficient to

adequately prove, under penalty of perjury, that Perez received the order October 23, the record

supports the trial court’s finding that his petition is untimely. The thirty-one-day period expired

November 23, 2014. The petition could be considered timely only if the fact-finder were to

conclude, based on the record, that the original petition was delivered to prison officials on or

before November 23, for the purpose of mailing it to the district clerk.

While contained in his petition is an unsigned paragraph that recites that copies of the

petition were provided to the district clerk and the office of the Texas Attorney General by

regular mail, we note various defects with that paragraph. First, the paragraph was not signed,

unless Perez’ signatures on the petition itself or on the unsworn declaration attached to the

petition were intended as a signature of the “certificate of service.” The paragraph recites that a

copy of the petition was provided to each of the district clerk and the attorney general, but it

never represents that the original petition was delivered or provided to the clerk. Also, notably,

the paragraph fails to state that Perez delivered the original of the petition to prison officials

November 22, for the purpose of their mailing it to the district clerk. Under this record, the trial

court was not compelled to reach that conclusion.

Compliance with Rule 21a of the Texas Rules of Civil Procedure is necessary before

Rule 21a authorizes the courts to treat as prima facie evidence of service a writing that is claimed

to be a certificate of service. Strobel v. Marlow, 341 S.W.3d 470, 475–78 (Tex. App.—Dallas

2011, no pet.); see Mathis v. Lockwood, 166 S.W.3d 743, 745 (Tex. 2005). “As the rule’s

definition. As written, the declaration does not apply the perjury language to Perez himself. As the declaration is written, Perez swore to nothing. See Bahm v. State, 219 S.W.3d 391, 394 (Tex. Crim. App. 2007). 4 requirements are neither vague nor onerous,” extending prima facie evidence status to a non-

complying writing is not favored. Mathis, 166 S.W.3d at 745. We conclude that Perez’ claimed,

but defective, certificate of service does not establish prima facie proof that he timely delivered

the petition to prison authorities.

The record also contains a copy of the face of the envelope used to transmit Perez’

petition to the district clerk; clearly displayed on that envelope just below the postage is the

handwritten date November 25, 2013. That is evidence before the trial court, regardless of

whether Perez’ purported certificate of service sets up prima facie evidence of timely service,

that would authorize a finding that the delivery to prison officials and the mailing occurred

November 25, 4 making Perez’ petition untimely.

Because Section 14.005(b) of the Texas Civil Practice and Remedies Code requires the

dismissal of an untimely filed claim, there was no abuse of discretion in the dismissal of the

lawsuit.

We affirm the dismissal of Perez’ action by the trial court.

Josh R. Morriss, III Chief Justice

Date Submitted: January 20, 2015 Date Decided: February 20, 2015

4 The petition was received for filing November 26, 2013. 5