MEMORANDUM OPINION
No. 04-11-00009-CV
Perry HAMMONDS,
Appellant
v.
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
Appellee
From the 218th Judicial District Court, Karnes County, Texas
Trial Court No. 10-05-00084-CVK
Honorable Ron Carr, Judge Presiding
Opinion by: Sandee Bryan Marion, Justice
Sitting: Sandee Bryan Marion, Justice
Phylis J. Speedlin, Justice
Rebecca Simmons, Justice
Delivered and Filed: August 17, 2011
AFFIRMED
This is an appeal from the trial court’s dismissal of a lawsuit filed by an inmate against
the Texas Department of Criminal Justice (“TDCJ”). On appeal, appellant asserts the trial court
erred by dismissing his lawsuit and by not ruling on (1) his objections to the TDCJ’s answer and
its motion to dismiss, (2) his objection that the TDCJ did not comply with Texas Government
Code section 2001.175, (3) his “offer of record,” and (4) his request for findings of fact and
conclusions of law. We affirm.
04-11-00009-CV
BACKGROUND
Appellant, Perry Hammonds, is an inmate at the Stiles Unit in Beaumont, Texas.
Hammonds initially brought three administrative grievances against the TDCJ, alleging
forfeitures were improperly made from his inmate account. Hammonds originally filed suit
against the TDCJ in district court on August 10, 2009. Although the record in this appeal does
not contain the record from that lawsuit, Hammonds contends his suit was dismissed without
prejudice on January 27, 2010. On May 13, 2010, Hammonds filed the underlying lawsuit, again
alleging forfeitures were improperly made from his inmate account. The TDCJ moved to
dismiss the suit on the grounds it was barred by the statute of limitations and, therefore,
frivolous. The trial court dismissed the suit, and this appeal ensued.
DISCUSSION
A trial court may dismiss an inmate’s claim if the court finds the claim is frivolous. TEX.
CIV. PRAC. & REM. CODE ANN. § 14.003(a)(2) (West 2002). A claim is frivolous if, for among
other reasons, the claim’s realistic chance of ultimate success is slight or the claim has no
arguable basis in law or in fact. Id. § 14.003(b)(1), (2). In this case, the TDCJ argued
Hammonds’s claim was barred by the thirty-one-day statute of limitations imposed by Civil
Practice and Remedies Code section 14.005, which provides as follows:
(a) An inmate who files a claim that is subject to the grievance system established
under Section 501.008, Government Code, shall file with the court:
(1) an affidavit or unsworn declaration stating the date that the
grievance was filed and the date the written decision described by
Section 501.008(d), Government Code, was received by the
inmate; and
(2) a copy of the written decision from the grievance system.
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(b) A 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.
Id. § 14.005(a), (b).
According to his affidavit, Hammonds received a written decision on each of his three
grievances on July 18, 2009; July 21, 2009; and July 24, 2009, respectively. Thus, the
limitations period on all three claims expired in mid-to-late August 2009. If Hammonds filed his
original suit on August 10, 2009, then his suit was timely as to all three claims. However, that
lawsuit was dismissed without prejudice, and Hammonds did not file this lawsuit until May 13,
2010, almost nine months after the limitations period expired.
In his objection to the TDCJ’s motion to dismiss, Hammonds argued that because his
August 2009 suit was timely and was dismissed without prejudice, his May 2010 suit was also
timely because the dismissal without prejudice of the 2009 suit allowed him to refile. A
dismissal is the equivalent of a suit never having been filed. Cunningham v. Fox, 879 S.W.2d
210, 212 (Tex. App.—Houston [14th Dist.] 1994, writ denied). Therefore, if a suit is dismissed,
the statute of limitations is not tolled for any new pleading filed. Id. Accordingly, as a general
rule, when a case is dismissed, limitations run from the time the cause of action accrued until the
date of the refiling. See id.
“The procedural requirements placed on suits filed by indigent inmates under chapter 14
are designed to control the flood of frivolous lawsuits filed in the courts of this state by prison
inmates.” Sanders v. Palunsky, 36 S.W.3d 222, 226 (Tex. App.—Houston [14th Dist.] 2001, no
pet.). “Requiring indigent inmates to file affidavits related to their previous filings, to exhaust
their administrative remedies, to file suit within 31 days after the decision on their grievance, and
to dismiss their suits if they do not comply, furthers the legitimate, even compelling, state
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interest in protecting scarce judicial resources from the continued onslaught of prisoners who
abuse the judicial system by filing frivolous civil lawsuits.” Id. When Hammonds’s 2009 suit
was dismissed, he was still required to refile any subsequent suit within the appropriate
limitations period, absent any statutory tolling period. In this case, there is no statutory authority
for tolling Hammonds’s inmate lawsuit. Accordingly, the applicable limitations period is
calculated without reference to Hammonds’s first suit. Therefore, the trial court did not err in
concluding his claim was frivolous because it was filed outside the thirty-one-day limitations
period. 1
Hammonds also complains the trial court did not rule on his objection that the TDCJ
failed to comply with the following requirement under the Texas Government Code:
After service of the petition on a state agency and within the time permitted for
filing an answer or within additional time allowed by the court, the agency shall
send to the reviewing court the original or a certified copy of the entire record of
the proceeding under review. The record shall be filed with the clerk of the court.
....
TEX. GOV’T CODE ANN. § 2001.175(b) (West 2008). Hammonds also complains the trial court
erred by not ruling on his written “offer of proof” in which he asked the court to admit the TDCJ
disciplinary report and hearing record. Hammonds did not re-urge these complaints during the
hearing on the TDCJ’s motion to dismiss, which he attended. And, it appears the trial court was
aware of the file, which is also included in the record on appeal. Accordingly, we conclude
Hammonds has not shown the trial court abused its discretion.
Finally, Hammonds asserts the trial court abused its discretion by failing to rule on his
request for findings of fact and conclusions of law. Although Hammonds filed a request for
1
The granting of the TDCJ’s motion to dismiss is an implicit rejection of Hammonds’s objection to the motion to
dismiss and his objection to the TDCJ’s original answer (which included a statute of limitations affirmative
defense); therefore, we disagree with his complaints that the trial court did not rule on his objections.
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04-11-00009-CV
findings of fact and conclusions of law, the trial court did not make the findings and conclusions.
Hammonds did not file a notice of past due findings of fact and conclusions of law that complied
with Texas Rule of Civil Procedure 297. See TEX. R. CIV. P. 297. 2 He thus waived any
complaint regarding the court’s failure to make the findings and conclusions.
CONCLUSION
We overrule Hammonds’s issues on appeal and affirm the trial court’s judgment.
Sandee Bryan Marion, Justice
2
“If the court fails to file timely findings of fact and conclusions of law, the party making the request shall, within
thirty days after filing the original request, file with the clerk and serve on all other parties in accordance with Rule
21a a ‘Notice of Past Due Findings of Fact and Conclusions of Law’ which shall be immediately called to the
attention of the court by the clerk. Such notice shall state the date the original request was filed and the date the
findings and conclusions were due.” TEX. R. CIV. P. 297.
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