In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-07-00023-CV
______________________________
CHARLES LOPEZ, Appellant
V.
JOHN RUPERT, ET AL., Appellees
On Appeal from the 202nd Judicial District Court
Bowie County, Texas
Trial Court No. 06-C0239-202
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION
Charles Lopez appeals from a judgment dismissing his lawsuit without prejudice. While an inmate at the Barry Telford Unit of the Texas Department of Criminal Justice-Institutional Division (TDCJ), Lopez claims prison officials conspired to delay his "law library lay-ins," to deny access to the courts, to deny access to legal resources, to withhold trial transcripts, to open and read confidential legal correspondence, and to retaliate against Lopez for filing suit. On or about May 9, 2005, Lopez brought suit alleging a conspiracy to deprive him of rights guaranteed by both the Texas Constitution and the United States Constitution. The trial court dismissed the original suit. On or about February 15, 2006, Lopez brought a second suit alleging the same conduct. The trial court dismissed the second suit without prejudice January 10, 2007. Lopez appeals from that dismissal.
The standard for review of a dismissal under Chapter 14 is whether the court abused its discretion. Hickson v. Moya, 926 S.W.2d 397, 398 (Tex. App.--Waco 1996, no writ); Johnson v. Peterson, 799 S.W.2d 345, 347 (Tex. App.--Houston [14th Dist.] 1990, no writ). Abuse of discretion is determined by whether the court acted without reference to any guiding principles. Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124, 126 (1939). Thus, the question is whether the court acted in an arbitrary or unreasonable manner. Smithson v. Cessna Aircraft Co., 665 S.W.2d 439, 443 (Tex. 1984).
Section 14.005 of the Texas Civil Practice and Remedies Code requires that an inmate file both (1) an affidavit or unsworn declaration stating the date the grievance was filed and the date the written decision described by Section 501.008(d) of the Texas Government Code was received by the inmate, and (2) a copy of the form denying the inmate relief. Tex. Civ. Prac. & Rem. Code Ann. § 14.005(a)(1), (2) (Vernon 2002). An inmate may not file a claim in state court regarding operative facts for which the TDCJ 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, or the 180th day after the date the grievance is filed, if the inmate has not received a written decision. Tex. Gov't Code Ann. § 501.008(d) (Vernon 2004). An inmate who files a claim that is also subject to the grievance system must file an affidavit stating the date a grievance was filed and the date a written decision was received, along with a copy of the written decision. Tex. Civ. Prac. & Rem. Code Ann. § 14.005(a).
Lopez claims the trial court erred in dismissing his suit for failure to exhaust administrative remedies. (1) According to Lopez, the record affirmatively demonstrates he exhausted his administrative remedies. Lopez, though, has failed to direct us to where the record supports this contention. The trial court's order of dismissal does not specify why the case was dismissed. The only grievance specifically referenced in Lopez' brief is grievance number 2005057338. Lopez concedes this grievance was filed January 10, 2005. The "Step 2" of grievance number 2005057338 was apparently disposed of February 9, 2005. Because Lopez did not file suit until February 15, 2006, any claim based on grievance 2005057338 was not timely filed. A trial court must dismiss an inmate's lawsuit if the record before the court shows that the inmate failed to file his or her claim in the trial court within thirty-one days of having exhausted all administrative remedies. Tex. Civ. Prac. & Rem. Code Ann. § 14.005(b) (Vernon 2002).
Although there are numerous other grievances in the record, Lopez has failed to direct us to which grievance or grievances form the basis of his suit. (2) Appellate courts have no duty to make an independent search of the reporter's record to find support for an appellant's contentions. Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 283 (Tex. 1994). In order to address the other grievances contained in the record, we would have to address unassigned error. In essence, we would have to brief Lopez' appeal for him. This we decline to do. It is not the proper role of this Court to create arguments for an appellant--we will not do the job of the advocate. See Maranatha Temple, Inc. v. Enter. Prods. Co., 893 S.W.2d 92, 106 (Tex. App.--Houston [1st Dist.] 1994, writ denied). Any error based on other grievances has been waived due to inadequate briefing. See Tex. R. App. P. 38.1. Because any error concerning grievances not referenced by Lopez in his brief has been waived, it is not necessary for this Court to address the arguments raised by the State. (3) Lopez has failed to show that the trial court erred in dismissing his lawsuit.
We affirm the trial court's judgment.
Jack Carter
Justice
Date Submitted: June 19, 2007
Date Decided: August 9, 2007
1. 2. We note Lopez included an appendix to his brief. This appendix includes numerous
grievances, but fails to reference where, or even if, the attached grievances are contained in the
record.
3. The State argues that the affidavit of Russell B. Bailey, the deputy administrator of offender
grievances, affirmatively demonstrates Lopez failed to exhaust his administrative remedies. This
affidavit states no grievances were filed by Lopez between May 23, 2006 and August 28, 2006. The
affidavit also provides grievance number 2006012989 was returned unprocessed and was not
resubmitted within fifteen days as required under the TDCJ grievance rules. Last, the affidavit states
grievance number 2006032589 concerned "disciplinary not communication issues." According to
the State, the lawsuit contains different allegations and additional defendants than the grievances
Lopez claims to have filed. See Riddle v. TDCJ-ID, No. 13-05-00054-CV, 2006 Tex. App. LEXIS
1167 (Tex. App.--Corpus Christi Feb. 9, 2006, pet. denied) (mem. op.) (inmate failed to exhaust
administrative remedies against defendants not named in the grievances).
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In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-10-00167-CR
______________________________
WILLIAM ALBERT SCHATTE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 336th Judicial District Court
Fannin County, Texas
Trial Court No. 23007
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Moseley
MEMORANDUM OPINION
William Albert Schatte appeals from his convictions on his plea of guilty, made before a jury, for aggravated sexual assault in four cases, and for one conviction for indecency with a child. In a unified brief, he complains that the trial court committed reversible error at the punishment phase that requires remanding the cause for a new hearing on punishment.
In this case, he was convicted for aggravated sexual assault of a child, and was sentenced to ninety-nine years imprisonment and a $10,000.00 fine.
Schatte raises a single issue on appeal, in which he contends that the trial court erred by admitting evidence of a prior bad actanal contact with the victimalthough the State had not given him notice of its intent to use the evidence, notwithstanding his request for such notice.
Because the issue raised in each appeal is identical, for the reasons stated in our opinion dated this day in Schatte v. State, cause number 06-10-00166-CR, we affirm the judgment of the trial court.
Bailey C. Moseley
Justice
Date Submitted: May 25, 2011
Date Decided: May 26, 2011
Do Not Publish