IN THE
TENTH COURT OF APPEALS
No. 10-12-00065-CV
MARK WALTERS,
Appellant
v.
BRAD LIVINGSTON AND TEXAS
DEPARTMENT OF CRIMINAL JUSTICE,
Appellees
From the 12th District Court
Walker County, Texas
Trial Court No. 25,548
MEMORANDUM OPINION
Mark Walters, a prison inmate, appeals from the trial court’s dismissal of his civil
lawsuit. Because we find the trial court did not abuse its discretion in dismissing
Walters’ suit with prejudice, the trial court’s judgment is affirmed.
BRAD LIVINGSTON
At the outset, we must determine whether Brad Livingston, the Director of the
Texas Department of Criminal Justice, is a party to this appeal.
Although styled against the Texas Department of Criminal Justice, Walters
initially brought suit against Brad Livingston, in both Livingston’s individual and
official capacity, for the elimination of Project Rio, a re-entry and re-integration
program for inmates. After the Attorney General filed a motion to dismiss Walters’
suit, Walters specifically dropped Livingston from the suit and, by an amended petition
Walters styled as a supplemental petition filed with the trial court clerk, substituted in
the Texas Department of Criminal Justice as the defendant. He explained to the trial
court, in a document in the clerk’s record which appears to be a cover letter to the
amended petition, that his action was deliberate and pursuant to the election of
remedies provision in section 101.106 of the Texas Civil Practice and Remedies Code.
TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(f) (West 2011) (“On the employee's motion,
the suit against the employee shall be dismissed unless the plaintiff files amended
pleadings dismissing the employee and naming the governmental unit as defendant on
or before the 30th day after the date the motion is filed.”). The document signed by
Walters and addressed to the trial court states in relevant part:
I am filing a Second Supplimental [sic] Petition re: cause number 25,584,
as an appropriate response to the defendants [sic] motion to dismiss:
Amicus Curiae.
According to the Civil Practices [sic] and Remedies, Governmental
Liabilities § 101.106(f), I have 30 days after a motion to dismiss is filed to
Amend my pleadings dismissing an employee as defendant and naming
the governmental unit as defendant.
Walters v. Livingston Page 2
As my accompanying affidavit states, I did not receive the motion to
dismiss until June 1, 2011….
Walters’ accompanying affidavit provides in relevant part:
In support of the Amicus Curiae, the Plaintiff is filing a second
supplimental [sic] petition, in accordance with V. T. C. A. Civil Practices
[sic] and Remedies § 101.106(f) which states that within 30 days of a
defendants [sic] motion for dismissal, a plaintiff can file an amended
pleadings dismissing an employee and naming a governmental unit as
defendant.
Thus, as of June 3, 2011, pursuant to Walters’ “Second Supplimental Petition,”
Livingston was no longer a party to Walters’ suit.
Walters amended his lawsuit a third time but did not include Livingston as a
defendant, which would have been pointless given Walters’ earlier decision. The trial
court ultimately dismissed Walters’ suit against TDCJ. The order of dismissal made no
mention of Livingston because Livingston was no longer a party to the proceeding.
By his notice of appeal, Walters named only Livingston as the appellee or other
party to the appeal and did not identify or name TDCJ. Rule 25.1(b) of the Texas Rules
of Appellate Procedure provides that the filing of a notice of appeal invokes our
jurisdiction over all parties to the trial court’s judgment or order appealed from. TEX. R.
APP. P. 25.1(b). We have no order or judgment from the trial court regarding
Livingston. Thus, Livingston is not a party to the appeal, and we have no jurisdiction
over Livingston in this appeal. See TEX. R. APP. P. 25.1(b); Avila v. Lone Star Radiology,
183 S.W.3d 814, 818 (Tex. App. Waco 2005) (Gray, C.J., dissenting) (“A notice of appeal,
Walters v. Livingston Page 3
however, does not invoke our jurisdiction over persons who were not parties in the trial
court.”).
The Attorney General raised the issue regarding the proper party against whom
Walters brought his suit. Walters responded in his reply brief that naming TDCJ as the
defendant in his pleading was a misnomer. His response is contrary to the record and
to his election of remedies. Thus, because we have no jurisdiction over Livingston, an
appeal, if any, as to Livingston is dismissed. See TEX. R. APP. P. 42.3(a).
ISSUES ON APPEAL
In his first issue, Walters contends the trial court erred in dismissing Walters’ suit
because: 1) constitutional violations by Livingston allowed Walters to bring a cause of
action; 2) Livingston failed to list Project Rio as an encumbrance; 3) Livingston did not
adhere to the Texas Open Meetings Act; and 4) Livingston is not entitled to either
sovereign immunity or official immunity. This issue questions only the acts or omission
of Brad Livingston. As we have held, Livingston is not a party to this appeal; and any
appeal as to him has been dismissed. Because Livingston is not a party to the appeal,
Walters’ first issue is overruled.
In his second issue, Walters contends the trial court abused its discretion in
dismissing his suit as frivolous because 1) he was either not required to comply with the
grievance procedures or, alternatively, did comply with the procedures, and 2) his
claims had an arguable basis in law. We review the trial court's dismissal of an in forma
Walters v. Livingston Page 4
pauperis suit filed by an inmate under an abuse of discretion standard. Hickson v. Moya,
926 S.W.2d 397, 398 (Tex. App.—Waco 1996, no writ).
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) (West 2012). An
inmate who files a claim that is subject to the prison grievance system must also file an
affidavit or unsworn declaration stating the date the grievance was filed and the date
the written decision was received by the inmate and a copy of the written decision from
the grievance system. TEX. CIV. PRAC. & REM. CODE ANN. § 14.005(a) (West 2002). If an
inmate does not comply with § 14.005(a) or fails to file his claim within 31 days after the
date the inmate receives the written decision from the grievance system, the inmate’s
suit must be dismissed. See id. (b); Leachman v. Dretke, 261 S.W.3d 297, 311 (Tex. App.—
Fort Worth 2008, no pet.) (op’n on rhg). Exhaustion of these administrative remedies
requires the proper exhaustion of the remedies. Leachman, 261 S.W.3d at 311; see Retzlaff
v. Tex. Dep't of Crim. Justice, 94 S.W.3d 650, 654 (Tex. App.—Houston [14th Dist.] 2002,
pet. denied). Further, if an inmate has failed to exhaust his administrative remedies, his
claim has no arguable basis in law, and is, therefore, frivolous. TEX. CIV. PRAC. & REM.
CODE ANN. § 14.003 (West 2002); Retzlaff, 94 S.W.3d at 653.
Walters v. Livingston Page 5
Initially, Walters argues he was not required to comply with the grievance
procedures because Project Rio is a statute which was violated and which is “non-
grievable” under TDCJ policy. He bases this conclusion on language in TDCJ’s
Offender Orientation Handbook which provides an inmate may not "grieve" state or
federal court decisions, laws, or regulations. Offender Orientation Handbook at pg.53,
http://www.tdcj.state.tx.us/documents/Offender_Orientation_Handbook_English.pdf)
(emphasis added). But Walters is not complaining about a state law, that is, that the law
is invalid; he is complaining about the cessation of a state program. He contends the
cessation violates a state law. We do not believe that TDCJ intended this type of claim
made by Walters to be exempt from the grievance procedures under the provision cited
by Walters of the Offender Orientation Handbook. Raising such a claim in a grievance
procedure would give TDCJ an opportunity to correct a violation, if any, that it made in
the cessation of the program.1 See Leachman, 261 S.W.3d at 309 (citing Woodford v. Ngo,
548 U.S. 81, 83-84, 126 S. Ct. 2378, 2382, 165 L. Ed. 2d 368 (2006)) (discussing the
reasoning for the need for the exhaustion of administrative remedies prior to an inmate
filing suit); Whirty v. Grimes, Nos. 07-08-0394-CV & 07-09-0111-CR, 2009 Tex. App.
LEXIS 2535, *5 (Tex. App.—Amarillo Apr. 14, 2009, pet. denied) (mem. op.). Walters
cannot side step the grievance procedures by re-characterizing his claim as one not
covered by the procedures. See Whirty, 2009 Tex. App. LEXIS 2535, *9 (“Couching the
1 We do not hold that there was a violation in ceasing the program.
Walters v. Livingston Page 6
claim as one in tort for damages does not remove it from the exhaustion requirement of
chapter 14.”). Accordingly, we hold Walters was required to comply with TDCJ’s
grievance procedures.
Alternatively, Walters contends that if he was required to comply, he actually
complied with the grievance procedure and exhausted his administrative remedies. We
find he did not.
Walters attached Step 1 and Step 2 grievance forms to his original petition;
however, his complaints in those grievance forms do not comport with his claims in his
suit. In his grievance, Walters complains about not receiving a certificate of on-the-job-
training through Project Rio when he had qualified to receive one. Walters’ grievance
does not address the issues he brought in his civil suit; and, thus, we cannot say he
either sought or received a final administrative decision on those issues. See Wolf v. Tex.
Dep't of Crim. Justice, 182 S.W.3d 449, 451 (Tex. App.—Texarkana 2006, pet. denied);
Williams v. Ballard, No. 10-08-00378-CV, 2009 Tex. App. LEXIS 9246 (Tex. App.—Waco
Dec. 2, 2009). Further, Walters did not attach an affidavit or unsworn declaration
stating the date that the grievance was filed and the date the written decision was
received by him. TEX. CIV. PRAC. & REM. CODE ANN. § 14.005(a)(1) (West 2002). The
Step 2 grievance form does not show when he received this final decision. Thus,
Walters did not provide the trial court with the information required so it could
determine whether the lawsuit was timely filed; and, given that over two months had
Walters v. Livingston Page 7
elapsed between the time the Step 2 grievance form as signed by a TDCJ agent and the
time Walters filed his lawsuit, it is entirely reasonable for the trial court to conclude that
over thirty-one days had elapsed since Walters was informed of the final administrative
decision. See Wolf, 182 S.W.3d at 451.
Walters failed to properly exhaust his administrative remedies, and as such,
raising his claim by bringing suit against TDCJ had no arguable basis in law.
Accordingly, the trial court did not abuse its discretion in dismissing Walters’ suit as
frivolous. Walters’ second issue is overruled.
In his third issue, Walters contends the trial court abused its discretion in not
issuing findings of fact and conclusions of law. Pursuant to Rules 296 and 297 of the
Texas Rules of Civil Procedure, a trial judge must, when properly requested, prepare
findings of fact in cases tried in the district court or county court without a jury. See TEX.
R. CIV. P. 296, 297. Those rules, however, do not impose any duty on the trial court to
file findings of fact or conclusions of law where there has been no trial as in this case.
Kendrick v. Lynaugh, 804 S.W.2d 153, 156 (Tex. App.—Houston [14 Dist.] 1990, no pet.);
Smith v. Quada, No. 10-09-00414-CV, 2011 Tex. App. LEXIS 5122, *5-6 (Tex. App.—Waco
July 6, 2011, pet. denied) (mem. op.). Walters’ third issue is overruled.
In his fourth and last issue, Walters complains that the trial court abused its
discretion in dismissing Walters’ case with prejudice. A motion to dismiss that is
granted pursuant to section 14.003 for failure to establish an arguable basis in law is
Walters v. Livingston Page 8
appropriately dismissed with prejudice. Nabelek v. DA of Harris County, 290 S.W.3d 222,
233 (Tex. App.—Houston [14th Dist.] 2005, pet. denied); Williams v. Ballard, No. 10-08-
00378-CV, 2009 Tex. App. LEXIS 9246, *4 (Tex. App.—Waco Dec. 2, 2009, no pet.). We
have already determined Walters’ claims had no arguable basis in law. Thus, the trial
court did not abuse its discretion in dismissing Walters’ suit with prejudice. Walters’
fourth issue is overruled.
CONCLUSION
Having overruled each of Walters’ issues on appeal, we affirm the trial court’s
judgment.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Appeal dismissed in part and affirmed in part
Opinion delivered and filed November 1, 2012
[CV06]
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