
    Isaac MAHURON, Appellant v. TDCJ, Appellee
    No. 10-14-00116-CV
    Court of Appeals of Texas, Waco.
    Opinion delivered and filed October 15, 2015
    
      Isaac Mahuron, pro se.
    Afton Trevino, Christin Cobe Vasquez, Asst. Atty. Gen., Austin, for Appellee.
    Before Chief Justice Gray, Justice Davis, and Justice Scoggins
   OPINION

REX D. DAVIS, Justice

On August 1, 2013, Isaac Mahuron, an inmate at the Ellis Unit, filed this suit pro se against the Texas Department of Criminal Justice (the Department) as an indigent, thus triggering Chapter 14 of the Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. ch. 14 (West 2002 & Supp.2014). His suit alleges that he suffered a partially amputated finger on a broken window in a dayroom and alleges a premises-fiability claim under the Texas Tort Claims Act against the Department.

In compliance with Chapter 14, Mata-ron filed with his petition his “declaration of previous filings,” a copy of his certified inmate-account statement, and his “declaration of exhaustion.” See Tex. Civ. Prac. & Rem. Code Ann. § 14.004 (West Supp. 2014), § 14.005 (West 2002). The declaration of exhaustion explains under penalty of perjury that, after filing his Step-1 Grievance, Mataron filed his Step-2 Grievance by personally handing it to the grievance investigator during a unit lock-down. After not receiving a written decision on the Step-2 Grievance, Mataron inquired and was informed that there was no record of his Step-2 Grievance being filed. He did not receive any responses to his subsequent attempts to obtain information on the missing Step-2 Grievance or to his resubmitted Step-2 Grievance.

After the Department appeared and answered, Mataron commenced written discovery and filed a summary-judgment motion that was denied. Almost eight months after suit had been filed, on March 27, 2014, the Department filed a motion to dismiss under Chapter 14, asserting that Mataron had not exhausted his administrative remedies under section 14.005 because he did not file a copy of the written decision from the prison grievance system. The motion to dismiss did not address the specific allegations in Mahuron’s declaration of exhaustion about why he was unable to 'file a copy of the written decision on his Step-2 Grievance.

In an order signed on March 30, 2014— before Mahuron’s response to the motion to dismiss- was filed on April 2 — the then-trial court judge granted the Department’s motion to dismiss. Mataron appeals, asserting in his sole, issue that the trial court erred and abused its discretion by dismissing his suit for, failure to exhaust his administrative remedies. .

Generally, the dismissal of inmate litigation under Chapter 14 is reviewed for abuse of discretion. Brewer v. Simental, 268 S.W.3d 763, 767 (Tex.App.-Waco 2008, no pet.). “A trial court has no discretion to determine what the law is or in applying the law to the facts and, consequently, the trial court’s failure to analyze or apply the law' correctly is an abuse of discretion.” In re Am. Homestar of Lancaster, Inc., 50 S,W.3d 480, 483 (Tex.2001)(orig.proceeding). Sectiom 14.005(a) provides:

(á) 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.

Tex. Civ. Pkac. & Rem. Code Ann. § 14.005(a).

Section 501.008(d) provides:

(d) An inmate may not file a claim in state court regarding operative facts for which the grievance system provides the exclusive administrative remedy until:
(1) the inmate receives a written de- < cisión issued by the highest authority provided for in the grievance system; or
(2) if the inmate has not received a written 'decision described by Subdivision (1), the 180th day after . the date the grievance is filed.

Tex. Gov’t Code- Ann. § 501.008(d) (West 2012).

“Section 14.005(a)(2)’s purpose is to demonstrate that an inmate, proceeding in forma pauperis, has exhausted his or hér ádministrative remedies through the TDCJ’s grievance system by providing certain information to the court, including a copy of the written decision from the grievance system.” Garrett v. Borden, 283 S.W.3d 852, 853 (Tex.2009); see Brewer, 268 S.W.3d at 769. “An inmate must prove he exhausted all administrative remedies within the penal grievance system before initiating a lawsuit.” Wallace v. Tex. Dep’t Crim. Just-Inst. Div., 36 S.W.3d 607, 610 (Tex.App.-Houston [1st Dist.] 2000, pet. denied). The “proper exhaustion” of the grievance process is accomplished by the inmate’s “compliance with an agency’s, deadlines and other critical procedural rules.” Leachman v. Dretke, 261 S.W.3d 297, 309 (Tex.App-Fort Worth 2008, no pet.) (citing Woodford v. Ngo, 548 U.S. 81, 90-91, 126 S.Ct. 2378, 2386, 165 L.Ed.2d 368 (2006)).

We have previously stated that if an inmate does not strictly comply with section 14.005(a), a trial court does not abuse its discretion in. dismissing the suit. Brewer, 268 S.W.3d at 768.. But a year after our decision in Brewer, the supreme court in Garrett 'did not require strict compliance, holding that a hand-typed, verbatim reproduction of the written decision satisfied section 14.005(a)(2). Garrett, 283 S.W.3d at 853-54. And in response to a prison official’s argument that strict compliance is required, a sister court recently similarly held that an inmate substantially complied with section 14.005. Camacho v. Rosales, — S.W.3d ;-,-, 2014 WL 2808993, at *3 (Tex.App.-El Paso June 20, 2014, no pet.); see also Francis v. TDCJ-CID, 188 S.W.3d 799, 804 (Tex.App.-Fort Worth 2006, no pet.) (“we believe that such a hypertechnical application of the statute [§ 14.005] is unnecessary and unjust regarding this particular claim”).

Like many of our sister courts, we have held that an inmate may substantially comply with section 14.004’s requirements for the inmate’s declaration of previous filings. Washington v. Tex. Dep’t Crim. Just-Inst. Div., No. 10-04-00253-CV, 2005 WL 1484037, at *3 (Tex.App.-Waco June 22, 2005, no pet.) (mem.op.) (citing cases). In Washington, the. inmate provided limited information about his previous filings because prison officials and employees had allegedly destroyed his legal materials that he needed to comply with section 14.004. See id. at *1, 3. Therefore, when an inmate alleged on appeal that a prison employee had destroyed his grievances to explain why he had not filed a declaration of exhaustion, we cited Washington in noting that the inmate should have raised that allegation in the trial court and in indicating that the inmate could have attempted to substantially comply with section 14.005 by filing a declaration, stating the date that his grievance was filed and the date that he- received the written grievance decision. Bright v. Quarterman, No.10-08-00140CV, 2010 WL 3036475, at *2 (Tex.App.-Waco Aug. 4, 2010, no pet.) (mem.op.) (citing Washington, 2005 WL 1484037, at *3).

Finally, we construe Conely v. Tex. Bd. of Crim. Just., No. 03-10-00422, 2011 WF 3890404 (Tex.App.-Austin Aug. 31, 2011, no pet.) (mem.op.), as an explanation of how substantial compliance is built into section 14.005(a) by its incorporation of section 501.008(d):

[I]f an inmate has filed a grievance and does not receive a written decision issued by the highest authority in the grievance system, he may file a claim in state court on the 180th day after' the grievance was filed. See Tex, Gov’t Code Ann. § 501.008(d). Any failure to process Conely’s timely filed, grievances therefore would not deprive him of the right to assert claims arising from the same operative facts in district court.
Section 501.008 of the government code would permit Conely to file this claim in state court even if, as he asserts, the grievance he attempted to file was “trashed” or not processed and he never received a written response, provided that he filed his state court claim no sooner than 180 days after filing his grievance. See Tex. Gov’t Code Ann. § 501.008(d)(2).

Conely, 2011 WL 3890404; at *2, 4,

In Conely the court addressed whether an inmate who was alleging that his grievances were being “trashed” or not. processed had satisfied section 14.005:

In his affidavit of exhaustion of administrative remedies, Conely does not identify a specific step-one grievance in which he made a claim that-any prison official’s actions violated his right to be free from cruel and unusual punishment. He does aver that “there are other issues and or [sic] constitutional violations noted in plaintiffs complaint herein that plaintiff attempted to submit a grievance about however these grievances were trashed by defendants,” Even if this general statement could be construed to refer to the alleged Eighth Amendment violation, Conely does not state the date on which the grievance was filed as required by section 14.005(a).

Id., 2011 WL 3890404, at *4. The court then explained what an inmate should do in the situation of a missing grievance or the lack of a written responsé to a grievance:

When no written response has been received, an inmate can satisfy the requirements of civil practice and remedies code section 14.005 by stating the date that his grievance was filed and demonstrating that 180 days have passed without his receiving a written decision from the grievance system. Conely’s affidavit provides no- information regarding the date he attempted to file a grievance ’ complaining of the alleged violation of his Eighth Amendment rights and therefore fails to comply with section 14.005(a). Accordingly, the trial court acted within its discretion in dismissing Conely’s claim. Brewer, 268 S.W.3d at 768.

Id.

We thus hold that an inmate may substantially, comply with section 14.005. To be clear, we are not stating that an inmate is not required to exhaust the administrative remedy of the prison grievance system. Rather, if the grievance system provides the exclusive administrative remedy for a. claim, an inmate must exhaust that^ administrative remedy and must file an affidavit or unsworn declaration of exhaustion. Tex. Gov’t Code Ann. § 501.008(d)(2); Tex. Civ. PRAC. & Rem. Code Ann. § 14.005(a). If the inmate cannot strictly comply with section 14.005(a) by providing a copy of the written decision and by stating the date of the written decision, the ' inmate ’ may substantially comply with section 14.005(a) by filing an affidavit or unsworn declaration that states the filing dates of his Step-1 and Step-2 grievances and that specifically details why the inmate cannot state the date of the written decision from the grievance system and cannot provide a copy of that written decision. See Conely, 2011 WL 3890404, at 4; Bright, 2010 WL 3036475, at *2.

We now turn to the record to determine whether Mahuron’s declaration of exhaustion establishes that he substantially complied with section 14.005(a). In his declaration of exhaustion, Mahuron states:

• He filed his Step-1 grievance on March 17, 2013, and the grievance number is # 2013115312.
• He received a response on May 1, 2013 that the broken window has been fixed. Mahuron adds that the window had not been fixed and that the response did not address his injury.
• On May 10, 2013, he submitted his Step-2 grievance to Unit Grievance Investigator (UGI) Brewer by personally handing it to her when she visited his wing because the Ellis Unit was on lockdown for a semiannual shakedown.
• Because he did not receive a response to his Step-2 grievance or an extension, on June 25, 2013, he submitted an 1-60 (request for information) to UGI Brewer, who Mahuron claims responded as follows: “Grievance #2013115312 was closed on 5/01/13 for Step 1. There is no record in the computer of Step-2 being filed.”
• On June 27, Mahuron submitted to Brewer a duplicate Step-2 Grievance and another 1-60 that he claims stated:
Ms. Brewer: Concerning Grievance #2013115312, on Friday May 10, 2013, which was the last day of the semiannual lockdown/shakedown, you came to the wing, J-24, that morning picking up grievances at which time I personally handed you my Step-2 Grievance # 2013115312 with the Step-1 attached. Would you PLEASE check your files, including the file folder you carry, to see if my Step-2 was inadvertently misplaced, and if so, process it accordingly. If you are still unable to locate it, would you allow me to resubmit the attached duplicate Step-2 that I maintained for my files.
Your assistance in this matter is GREATLY appreciate [sic ].
• On July 3, Mahuron submitted to Brewer another 1-60 that he claims stated:
Ms. Brewer: On 6/26/13 I submitted an 1-60 to you concerning Step-2 Grievance # 2013115312, along with a copy of that Step-2.
Would you please inform me:
if you found my previously submitted Step-2 Grievance # 2013115312;
if you have processed my previously submitted Step-2 # 2013115312;
if you have processed the resubmitted Step-2 # 2013115312.
Your continued assistance in this matter is appreciated.
• After getting no response to the 1-60 requests, Mahuron then sent a complaint letter dated July 12 to Sandra K. Murphy, TDCJ Grievance Manager, and that letter sets forth the above history. A copy of this letter is attached to Mahuron’s declaration.

The Department’s motion to dismiss does not address any of the specific allegations in Mahuron’s declaration; it claims only that inmates “should not be allowed to circumvent the exhaustion requirement of Chapter 14 by summarily alleging they exhausted their administrative remedies when they did not.” We note that, because of its numerous and specific factual assertions, Mahuron’s declaration was readily controvertible by the Department. Mahuron’s response to the Department’s motion to dismiss similarly sets forth the above history and includes as corroboration the declarations of two other inmates who both state under penalty of perjury that they observed Mahuron hand his Step-2 Grievance to UGI Brewer on May 10, 2013.

On appeal, the Department’s brief again asserts that inmates should not be allowed to summarily allege that they exhausted their administrative remedies. We agree, but Mahuron’s declaration is not a summary allegation that he exhausted his remedies. Rather, it specifies his attempts to exhaust the prison grievance system and includes the filing dates of his grievances.

The Department next asserts that Ma-huron “complains that his Step 2 grievance was not received by the Unit Grievance Investigator, only proving his failure to exhaust.” Mahuron, however, is not complaining that his Step-2 ,Grievance was not received, nor is he claiming that he exhausted the grievance system and received a written decision on his Step-2 Grievance. Instead, he asserts with factual specificity that he did deliver his Step-2 Grievance to UGI Brewer. His declaration admits that he did not get a written Step-2 decision, and he explains why he did not get it and could not file it with his declaration. Ma--huron contends that he did everything that he possibly could do to exhaust his administrative remedies within the prison grievance system, and he.was left with two choices — abandon, his premises-liability claim for his partially amputated finger, or file suit with, a declaration.-of exhaustion that explains his efforts to exhaust the prison grievance system. Based on the record, we conclude that Mahuron substantially complied with section 14.005(a). See Conely, 2011 WL 3890404, at *4; see also Bright, 2010 WL 3036475, at *2 (indicating that inmate could have attempted to substantially comply with section 14.005 by filing declaration stating date grievance was filed and date he received written grievance decision).

Under Government Code section 501.008(d)(2), because Mahuron did not receive a written grievance system decision, he could file his suit 180 days after the date his grievance was filed. See Conely, 2011 WL 3890404, at *4 (citing Tex. Gov’t Code Ann. § 501.008(d)(2)). Mahuron’s Step-1' Grievance was filed on March 17, 2013. His petition was filed on August 1, 2013 after being mailed by him on July 17, 2013 (approximately 120 days after his grievance wa¡s filed). Mahuron’s suit was thus filed before the expiration of 180 days after his grievance was filed, but section 14.005(c) provides: “If a claim is filed before the grievance system procedure is complete, the court shall stay the proceeding with respect to the claim for a period not to exceed 180 days to permit completion of the grievance system-procedure.” Tex, Civ.- Peac. & Rem.-'Code’ Ann. § 14.005(c). Because the issue is not before -us, we express' no opinion on • the applicability of section 14.005(c) upon remand, -but we again note that the Department did not file-its motion'to dismiss until almost eight months after suit was Tiled;

In conclusion, we sustain Mahuron’s sole issue, reverse, the trial court’s dismissal order, and remand this case for further proceedings consistent, with this opinion.

• (Chief Justice -Gray concurs with opinion).

TOM GRAY, Chief Justice,

concurring;

This appeal involves a question of statutory construction. It is not about substantial compliance. There is .no question the inmate did not comply: not even close. He could not comply. - The State made compliance impossible.

The question is what is the alternative to compliance if the/ability to comply with one statute is prevented by the opposing party? Here, another statute provides a remedy; but is it an available remedy if the first statute does not provide for the use of the remedy? ' The question thus becomes whether the two statutes are in conflict or whether they can be reconciled in some manner.

Chapter 14 provides:

(a) An inmate who flies 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.
(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.'
' (c) If a claim is filed "before the griev- . anee system procedure'is complete, the court shall stay the proceeding with respect to the claim for a period not to exceed 180 days to permit the completion of the grievance system procedure.

Tex. Civ. PRAC. & Rem. Code Ann. § 14.005 (West 2002) (emphasis added).

Mahuron asserts that the State frustrated his 'efforts to exhaust his Step 2 grievance by never ruling on it. In fact, he alleges that notwithstanding that he personally handed his Step 2 grievance to the UGI (Unit Grievance -Investigator) C. Brewer, the State reports no “computer” record of having received it, much less having decided it.

Mahuron, then unable to' comply with Chapter 14, only knew one thing to do— file suit. He did. Fortunately for Mahu-ron, there is another statute that addresses the same issues as Chapter 14 of the Texas Civil Practice and Remedies Code: The Texas Government Code provides:

(a) The department shall develop and maintain a system for ’the resolution of grievances by inmates housed in facilities operated by thé department or under contract with the department that, qualifies, for certification under 42 U.S.C.. Section 1997e and the department shall obtain and maintain certification under that section. A remedy provided by the grievance system is the exclusive administrative remedy available to an inmate for a claim for relief against the department that arises while the inmate is housed in a facility operated by the department or under contract with the department, other than a remedy provided by writ of habeas corpus challenging the validity of an action occurring before the delivery of the inmate to the department or to a facility operated under contract with the department.
(b) The grievance system must provide procedures:
(1) for an inmate to identify evidence to substantiate the inmate’s claim; and
(2) for an inmate to receive all formal written responses to the in- ■ mate’s grievance.
(c) A report, investigation, or supporting document prepared by the department in response to an inmate grievance is considered to • have been prepared in anticipation of litigation and is confidential, privileged, and not subject to discovery by the inmate in a claim arising out of the same operative facts as are alleged in the grievance.
(d) An inmate mew/ not file a claim in state court regarding operative facts for which the grievance system provides the exclusive administrative'remedy until:
(1) the inmate receives a %vritten decision issued by the highest,authority provided for in the grievance system; or ,
(2) if the inmate has not received a , written decision described by Subdivision (1), the 180th day after the date the grievance is filed.
(e) The limitations period applicable to a claim arising out of the same operative facts as a claim for which the grievance system provides the exclusive'remedy:
(1) is suspended on the filing of the ■grievance; and
(2) remains suspended until the earlier of the following dates:
(A) the 180th day after the date the. grievance is filed; or.
(B) the date the inmate receives ’ the written decision described by Subsection (d)(1),
(f)This section does not affect any immunity from a claim for damages that otherwise exists for the state, the department, or an employee of the department.

Tex. Gov’t Code Ann. § 501,008 (West 2012) (emphasis added).

These two statutes address a number of the same activities. Our attention is on the requisites of the inmate’s filing in State court to avoid dismissal as it relates to exhaustion of administrative remedies. Thus, we note that Texas Civil Practice and Remedies Code section 14.005(a)(2) requires that “a copy of the written decision from the grievance system” must be filed with the trial court clerk. Tex. Crv. PRAC. & Rem. Code Ann. § 14.005(a)(2) (West 2002). It allows for nothing less. Failure to file a copy of the written decision can result in dismissal. Id. (b). The statutes presumes the grievance system will always result in a written decision.

Texas • Government Code , section 501.008(d)(2) does not make such a presumption. Instead, it provides the remedy: if the inmate has not received the written decision by the 180th day after the date the grievance was filed, the. inmate can proceed to file suit. See Tex. Gov’t Code Ann. §. 501.008(d)(2) (West 2012). .

So, are the two statutes in conflict? It may initially appear so. Can the statutes be reconciled? Sure they can. Quite easily-

An inmate cannot file what is never provided. The State cannot require an impossible act when it controls the ability to comply. When the inmate alleged the State had failed to comply with the grievance system by not providing a written decision of his Step 2 grievance, he took himself out of the need to comply with a portion of section 14.005(a)(1) and (2) and from any claim that the proceeding could be dismissed on that basis. The inmate’s relief from the State’s failure to provide the written decision is to proceed to the filing of the claim in State court pursuant to Texas Government Code section 501.008(d)(2).

It may be important to understanding this analysis to know that the Attorney General’s Office, representing the State, never denied receiving the Step 2 grievance and offered no evidence to rebut Mahuron’s assertion that the properly completed Step 2 grievance was hand delivered to the UGI. The State only asserted there was no “computer record” that a Step 2 grievance was filed. There was no affidavit by the UGI or other evidence denying that the Step 2 grievance was hand delivered as Mahuron contends.

Thus, we reserve for another day what the procedure would be if there is a disputed fact issue about whether an inmate timely filed the Step 2 grievance. Likewise, it is of no importance in this proceeding that the suit was filed well before the 180 day period specified in the Government Code. The remedy for a prematurely filed suit is a stay until the period expires, not dismissal of the suit. See Tex. Civ. PRAC. &Rem. Code Ann. § 14.005(c) (West 2002). In this instance, it was not dismissed for failure to comply with Chapter 14 until long after the 180 day period had expired.

The cases cited as a basis for the determination that the inmate “substantially compiled” with the filing requirement of Chapter 14 are not on point or are easily distinguishable; but there is no reason to do so herein.

Finally, I note that one of the arguments made by Mahuron is that the State should not be allowed the ability to use its failure to comply with the grievance system to have the suit against it dismissed. Without actually using the words, the argument made by Mahuron is that the State should be estopped from obtaining a dismissal because it did not timely provide the inmate with a written decision to the inmate’s Step 2 grievance. To allow such would stand the concepts of access to the courts and due process on their ear. The State completely fails to address this argument.

If you look only to Chapter 14 of the Texas Civil Practice and Remedies Code for the resolution to this case, the estoppel argument must be addressed. To some extent, that appears to be what the Court has done, albeit under the label of “substantial compliance.” However, because the Government Code provides a remedy when the State fails to comply with its own grievance system, the issue of estoppel need not be resolved in this opinion.

Conclusion

Because Mahuron is expressly authorized by Texas Government Code section 501.008(d)(2) to file suit when the State has failed to provide a written decision to an inmate’s Step 2 grievance, the trial court erred in granting the State’s motion to dismiss Mahuron’s claim for failure to comply with Chapter 14 of the Texas Civil Practice and Remedies Code. Because this analysis yields the same judgment as that supported by the Court’s opinion, I respectfully concur in that judgment but not in the Court’s opinion. 
      
      . The petition has a certificate of service with a service date of July 17, 2013.
     
      
      . Before the Department appeared and answered, Mataron filed a “motion requesting determination of exhaustion.” This motion sets forth the same specific allegations that we detail below, includes corroborating declarations of two other inmates, and requests that the trial court declare that Mataron has exhausted the 'administrative remedies available to him. The trial court denied this motion but did not dismiss Mahuron’s suit sua sponte. See Tex.' Civ. Prac. & Rem: Code Ann, §§ 14.003, 14.010 (West 2002).
     
      
      . See Garrett, 283 S.W.3d at 853-54 (holding that inmate may provide verbatim reproduction of the written grievance decision).
     
      
      . A trial court may dismiss a claim if the court finds that "the inmate filed an affidavit or unsworn declaration required by this chapter that the inmate knew was false.” Tex. Civ. Pjrac. & Rem. Code Ann. § 14.003(a)(3).
     
      
      . An inmate’s summary or conclusory allegation that he exhausted his administrative remedies in the prison grievance system would not substantially comply with section 14.005(a). See, e.g., Conely, 2011 WL 3890404, at *4 (“Conely’s affidavit provides no information regarding the date he attempted to file a grievance complaining of the alleged violation of his Eighth Amendment rights and therefore fails to comply with section 14.005(a).”).
     