Michael Lou Garrett v. Mario A. Del Fierro

• Court: Court of Appeals of Texas
• Decided: July 17, 2006
• Docket: 07-05-00107-CV
• Status: Published

Opinion

NO. 07-05-0107-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

JULY 17, 2006

______________________________

MICHAEL LOU GARRETT,

Appellant

v.

MARIO A. DEL FIERRO, et al.,

Appellees

_________________________________

FROM THE 181^ST DISTRICT COURT OF POTTER COUNTY;

NO. 91,954-B; HON. JOHN B. BOARD, PRESIDING _______________________________

Memorandum Opinion _______________________________

Before QUINN, C.J., and REAVIS and HANCOCK, JJ.

Michael Lou Garrett (Garrett) appeals from an order dismissing his lawsuit against Mario A. Del Fierro, and numerous other defendants. A prison inmate, Garrett sued as a pauper averring "multiple civil rights causes of action." Through the five issues before us, he contends that the trial court abused its discretion in dismissing his suit and denying him sanctions. We overrule the issues and affirm the dismissal.

An inmate attempting to access the state trial courts of Texas as a pauper must clear various statutory hurdles. One such hurdle involves exhausting administrative remedies and filing suit within 31 days after receiving the written decision from the pertinent grievance system. Tex. Civ. Prac. & Rem. Code Ann. §14.005(b) (Vernon 2002). Should that deadline go unsatisfied, then the trial court must dismiss the claim. Id. Here, Garrett concedes that he did not file suit until 54 days had lapsed from the time he received the written decision of the body that considered his grievance. Thus, he did not comply with §14.005(b), and dismissal was warranted. Moreover, his suggestion that the provision was inapplicable because his suit propounded federal causes of action and only the State's general statute of limitations applied to such causes matters not. Simply put, §14.005(b) is not a statute of limitations but rather one step in a procedure used in determining whether an inmate can sue as a pauper. Doyle v. Lucy, No. 14-03-0039-CV, 2004 Tex. App. LEXIS 2790 (Tex. App.-Houston [14^th Dist.] March 30, 2004, no pet.) (not designated for publication) (holding that the statute is not one of limitations). Consequently, Garrett's postulations about statutes of limitation are inapposite.

Next, Garrett argues that the trial court abused its discretion in acting upon the motion to dismiss without affording him opportunity to respond to it. Assuming arguendo that such was error, we find it harmless given his concession that suit was filed outside the 31-day window mentioned above.

As to the issue that the trial court abused its discretion in failing to sanction the defendants, we note that they were the prevailing party below. Not only did the trial court grant their motion to dismiss, but we have found that decision to be an act legitimately within the trial court's discretion. Given this, any decision to forego sanctioning the defendants for purportedly filing a baseless motion lay within the trial court's discretion.

To reiterate, we overrule each issue raised by Garrett and affirm the order of dismissal.

Brian Quinn

Chief Justice

NO. 07-10-00370-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

OCTOBER 20, 2010

IN THE INTEREST OF J.D.O., JR., A CHILD

 FROM THE 320TH DISTRICT COURT OF POTTER COUNTY;

NO. 74,608-D; HONORABLE DON R. EMERSON, JUDGE

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

ORDER OF ABATEMENT

By letter of September 28, 2010, the Court notified appellant Ja’Mario Oliver, Sr. that the filing fee for his appeal had not been paid.  The filing fee was paid October 8, 2010.

Reviewing the limited documents currently before us, we note the trial court’s order terminating appellant’s parental rights was signed July 30, 2010.  Notice of appeal was filed with the trial court on September 22.  The notice states it was “forwarded” on September 15.  No motion for extension of time to file notice of appeal was filed.  See Tex. R. App. P. 26.3.

An appeal from an order terminating the parent-child relationship is accelerated and governed by the rules for accelerated appeals in civil cases.  Tex. Fam. Code Ann. § 109.002(a) (Vernon 2009).  Absent a motion for extension of time, the notice of appeal in an accelerated appeal must be filed within twenty days after the order is signed.  Tex. R. App. P. 26.1(b) and 26.3; In re K.A.F., 160 S.W.3d 923, 926-27 (Tex. 2005).  Under those rules, appellant’s notice of appeal must have been placed in the prison mail system by August 19.  See Ramos v. Richardson, 228 S.W.3d 671, 673 (Tex. 2007) (per curiam); Warner v. Glass, 135 S.W.3d 681, 686 (Tex. 2004) (per curiam) (both finding pleadings filed when received for mailing by prison authorities); Tex. R. Civ. P. 5 (“mailbox rule”).

            If a notice of appeal is filed within six months of the day the order or judgment appealed is signed, a restricted appeal is available provided the appellant: (1) filed notice of appeal within six months of the district court’s order; (2) was a party to the underlying suit; (3) did not participate in the dismissal hearing; and (4) can demonstrate error apparent on the face of the record.  See Tex. R. App. P. 26.1(c) and 30; Gold v. Gold, 145 S.W.3d 212, 213 (Tex. 2004).  An order terminating the parental rights of a person who was personally served is not subject to collateral or direct attack after the sixth month after the date the order of termination was signed.  Tex. Fam. Code Ann. § 161.211(a) (Vernon 2008).  Here, the order states appellant received proper notice of the termination hearing but “wholly made default.”  

We do not have jurisdiction over an untimely appeal. See In re K.A.F., 160 S.W.3d at 927. We are obligated to review on our own motion issues affecting jurisdiction.  M.O. Dental Lab v. Rape, 139 S.W.3d 671, 673 (Tex. 2004) (per curiam).  It appears appellant’s notice of direct appeal may be untimely but also appears it might suffice as a notice of restricted appeal.[1]  See Tex. R. App. P. 30. 

The appeal is abated until further order of the Court.  Appellant and appellee Texas Department of Family and Protective Services are each directed to file a brief and any supporting materials addressing the following issues: (1) whether a jurisdictional basis for treating appellant’s case as a direct appeal exists; (2) whether a jurisdictional basis for treating appellant’s case as a restricted appeal exists.  Briefs and any supporting materials must be actually received by the clerk of this Court no later than Friday, November 10, 2010.  Any document a party submits for filing with the clerk of the Court shall be served on the other party, and proof of service shown by a certificate on the document.  Tex. R. App. P. 9.5.  The Court will then determine its jurisdiction over the appeal.

            It is so ordered.

                                                                                    Per Curiam     

---

[1] It appears appellant did not timely file a statement of the point or points to be appealed as required by Family Code § 263.405(b)(2),(i). Because our only inquiry at this stage is our jurisdiction, we do not address that matter.