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COURT
OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 2-06-348-CV

WOODROW WILSON
WILLIAMS,
APPELLANT

TDCJ NO.
672377

V.

WARDEN J.
MOONEYHAM, ET AL.
APPELLEES

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FROM COUNTY COURT AT LAW NO. 1 OF WICHITA COUNTY

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MEMORANDUM
OPINION ON REHEARING[1]

------------

After
considering our prior opinion on appellant Woodrow Wilson
Williams=s
motion for reconsideration, we deny the motion, but we withdraw our
opinion and judgment November 1, 2007, and substitute the
following.

I.  Introduction

Appellant
Woodrow Wilson Williams, appearing pro se, asserts
that the trial court abused its discretion by dismissing with prejudice
his lawsuit against four corrections officers, thus denying him an
opportunity to amend his pleadings to comply with chapter 14 of the Texas
Civil Practice and Remedies Code.
Because we hold that Williams=s
failure to file his lawsuit by the statutory deadline could not have been
remedied by amended pleadings, we affirm.

II.
Background

Williams
is an inmate currently confined in the Texas Department of Criminal
JusticeCCorrectional
Institutions Division.  On
October 13, 2005, Williams sued the four appelleesCcorrections
officers James Mooneyham, Oscar E. Paul, Stanley McMillar, and Sean
PalmerCin
their individual capacities, contending that he had been attacked by a
fellow inmate nearly two years earlier, on October 14, 2003.  Williams alleged that Appellees
acted with gross negligence and deliberate indifference in failing to
protect him from this attack despite their knowledge of a prior attack
perpetrated on him by the same inmate.  Williams filed along with his
petition an AApplication
To Proceed In Forma Pauperis,@
in which he requested to proceed Awithout
being required to prepay fees, cost or give security thereof.@

Appellees
moved to dismiss Williams=s
lawsuit, arguing that Williams had failed to fulfill the procedural
requirements of chapter 14 of the Texas Civil Practice and Remedies Code,
which applies to lawsuits brought by inmates in which an affidavit or
unsworn declaration of inability to pay costs is filed by the inmate.  Tex. Civ. Prac. & Rem. Code
Ann. '
14.002(a) (Vernon 2002).
Appellees asserted that Williams did not satisfy chapter
14=s
requirements because he did not file (1) an affidavit identifying his
previous court filings, (2) a certified copy of his trust account
statement, and (3) an affidavit stating the date that the underlying
grievance was filed and the date the written decision was received by the
inmate along with a copy of the written decision from the grievance
system.  Appellees also argued
that dismissal was warranted because Williams did not file his lawsuit by
the thirty-first day after he received the written decision from the
administrative grievance system.
Subsequently, the trial court dismissed Williams=s
case with prejudice, finding that the case was frivolous and not in
compliance with chapter 14 of the civil practice and remedies code.  Williams now
appeals.

III.  Dismissal Pursuant to Chapter 14 of the

Texas
Civil Practice and Remedies Code

A.     Procedural
requirements

One
of chapter 14=s
procedural prerequisites that Appellees claim Williams did not fulfill is
found in section 14.005, which requires the inmate to file an affidavit or
unsworn declaration stating the date that the prison grievance underlying
the lawsuit was filed, along with a copy of the written decision from the
grievance system.  See id.
'
14.005(a).  The inmate must
file his lawsuit within thirty-one days after the date he received the
written decision from TDCJ=s
grievance system.  See
id. ' 14.005(b).[2]  Other requirements are found in
section 14.004, including the requirement that the inmate must file an
affidavit describing his previous lawsuits, and this affidavit must be
accompanied by a certified copy of the inmate=s
trust account statement.[3]  See id. ' 14.004.  Inmates are held to the same
standard as licensed counsel under this statute regarding these procedural
requirements because otherwise they would be given an unfair advantage
over those represented by counsel.
See Stewart v. Tex. Dep=t
of Criminal Justice-Inst. Div.,
No. 14-01-00848-CV, 2002 WL 31008315, at *2 (Tex. App.CHouston
[14th Dist.] Sept. 5, 2002, no pet.) (not designated for
publication).

B.
Dismissal

Williams
filed what he termed an Aaffidavit@
to request the trial court to allow him to proceed Ain
forma pauperis,@
so he was required to comply with all the procedural requirements of
chapter 14.  See Tex. Civ. Prac. & Rem. Code
Ann. '
14.002(a) (providing that this chapter applies to a suit brought by an
inmate in a district, county, justice of the peace, or small claims court
in which an affidavit or unsworn declaration of inability to pay costs is
filed by the inmate).  The
trial court found that Williams=s
claims were frivolous and not in compliance with chapter 14=s
requirements, and it dismissed Williams=s
claims with prejudice.  We
review a trial court=s
dismissal of an inmate=s
claim under chapter 14 for an abuse of discretion.  Bishop v. Lawson, 131
S.W.3d 571, 574 (Tex. App.CFort
Worth 2004, pet. denied).

A
court abuses its discretion if it acts without reference to guiding rules
or principles.  Id.;
see Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42
(Tex. 1985), cert. denied, 476 U.S. 1159 (1986).  A dismissal for failure to file a
description of the prior litigation is not an abuse of discretion.  Bell v. Tex.
Dep=t
of Criminal Justice-Inst. Div.,
962 S.W.2d 156, 158 (Tex. App.CHouston
[14th Dist.] 1998, pet. denied); Hickson v. Moya, 926 S.W.2d 397,
398 (Tex. App.CWaco
1996, no writ).  Nor is a
dismissal for failure to file the affidavit of grievances and a copy of
the written decision from the grievance system an abuse of
discretion.  See
Bishop, 131 S.W.3d at 574-75.
Furthermore, a court must dismiss a claim if the inmate fails to
file the claim before the thirty-first day after the date the inmate
receives the written decision from the grievance system.  Tex. Civ. Prac. & Rem. Code
Ann. '
14.005(b).

Williams
concedes that, due to an Aoversight,@
he did not file an affidavit identifying the suits he had brought in the
past, nor did he file an affidavit regarding his previously filed
grievances and copies of the written decisions.  Furthermore, the information he
does provide in his pleadings regarding his grievance decisions shows that
he did not meet the thirty-one-day deadline for filing suit.

In
Williams=s
response to Appellees=
motion to dismiss, Williams asserted that he had exhausted his
administrative remedies.  His
pleading reveals that he had received a decision from the grievance system
dated October 30, 2003.[4]  Williams complained that his step
one grievance was not allowed to proceed to the Astep
two process.@  But the responses to his
subsequent repeated grievance filings make clear that TDCJ had reached a
decision on his grievance and that the decision had been communicated to
him in the October 30, 2003 response to his initial grievance.[5]  Williams did not file suit until
October 13, 2005Cnearly
two years after he received this grievance decision. Accordingly, based on
the above-cited authority, we hold that the trial court did not abuse its
discretion by dismissing Williams=s
suit.

We
would come to the same conclusion even if, as Williams contends in his
motion for reconsideration, prison officials improperly failed to allow
his step one grievance to escalate to a step two grievance.  The triggering event that starts
the running of the thirty-one-day period for filing suit is the receipt of
a written decision issued by the highest authority provided for in the
grievance system or, if the inmate has not received such a written
decision, then the 180th day after the date the grievance is filed.  See Tex. Civ. Prac. & Rem. Code
Ann. '
14.005(a)(1), (b); Tex.
Gov=t
Code Ann.
'
501.008(d).  Therefore, even
if the grievance process was not exhausted because Williams=s
complaint did not proceed to a step two grievance and he did not receive a
written decision from the highest authority provided for in the grievance
system, he still was required to file suit within 180 days of October 14,
2003Cthe
date his grievance was filed.
But because he waited nearly two years to sue, he did not meet this
deadline either; consequently, the trial court did not abuse its
discretion by dismissing Williams=s
suit.

Our
holding that the trial court did not abuse its discretion does not,
however, end our inquiry.
Williams argues in his first point that the trial court abused its
discretion by dismissing his case with prejudice, instead of without
prejudice, giving him no opportunity to correct the procedural
deficiencies in his original lawsuit.  Therefore, we must also determine
whether the trial court abused its discretion by dismissing
Williams=s
suit with prejudice.

IV.
Dismissal with Prejudice

A.
Applicable Law

A
dismissal with prejudice constitutes an adjudication on the merits and
operates as if the case had been fully tried and decided.  See Ritchey v. Vasquez, 986
S.W.2d 611, 612 (Tex. 1999).
Thus, orders dismissing cases with prejudice have full res judicata
and collateral estoppel effect, barring subsequent relitigation of the
same causes of action or issues between the same parties.  See Barr v. Resolution Trust
Corp., 837 S.W.2d 627, 630-31 (Tex. 1992).

A
dismissal with prejudice is improper if the plaintiff=s
failure to comply with the statute=s
procedural requirements can be remedied.  See Hickman v. Adams, 35
S.W.3d 120, 125 (Tex. App.CHouston
[14th Dist.] 2000, no pet.).
When reviewing whether the trial court abused its discretion by
dismissing with prejudice, this court should consider whether the
prisoner=s
error could be remedied with more specific pleading; if so, a dismissal
with prejudice is improper.
See Thomas v. Knight, 52 S.W.3d 292, 294 (Tex.
App.CCorpus
Christi 2001, pet. denied), cert. denied, 537 U.S. 890
(2002).

B.
Analysis

Williams=s
failure to file affidavits relating to his previous lawsuits and grievance
decisions could certainly be corrected through supplemental filings.  See, e.g., Thomas v.
Skinner, 54 S.W.3d 845, 847 (Tex. App.CCorpus
Christi 2001, pet. denied) (holding that dismissal with prejudice for
failing to file previous-filings affidavit was improper because
inmate=s
error could have been remedied through amendment).  However, his failure to file his
claim before the thirty-one day deadline cannot be remedied.  See Moreland v. Johnson, 95
S.W.3d 392, 395 (Tex. App.CHouston
[1st Dist.] 2000, no pet.) (AA
suit that is not timely filed pursuant to section 14.005(b) is barred and
may be dismissed with prejudice.@);
see also Jon v. Tuatagola, No. 06-05-00116-CV, 2006 WL 237519, at
*2 (Tex. App.CTexarkana
Feb. 2, 2006, no pet.) (mem. op.) (holding that plaintiff=s
failure to comply with chapter 14=s
filing deadline presented a time bar that could not be remedied).

Inmates
must comply with rules that make the trial process possible or that
facilitate the functioning of our system of justice.  Randle v. Wilson, 26 S.W.3d
513, 516 (Tex. App.CAmarillo
2000, no pet.).  A limitation
period, such as that contained in section 14.005(b), is such a rule.  Id.  For an inmate who has already
pursued a grievance through administrative channels and has exhausted his
administrative remedies, thirty‑one days is ample time to convert that
grievance into a lawsuit.
Id.  Because
Williams did not act until nearly two years after receiving a decision on
his grievance, his suit is time-barred, and he cannot remedy this late
filing.  See Moreland,
95 S.W.3d at 395.
Accordingly, we hold that the trial court did not abuse its
discretion by dismissing Williams=s
claims with prejudice.  We
overrule Williams=s
first point.[6]

V.  Conclusion

Having
overruled Williams=s
first point and held that the trial court did not abuse its discretion by
dismissing his claims with prejudice, we affirm the trial
court=s
dismissal order.

BOB
MCCOY

JUSTICE

PANEL A:   CAYCE, C.J.; HOLMAN and
MCCOY, JJ.

DELIVERED: January
31, 2008

[1]See Tex. R. App. P.
47.4.

[2]Section 14.005
applies to suits Asubject to the
grievance system established under Section 501.008, Government
Code.@  Section 501.008 of the Texas
Government Code, in turn, directs the TDCJ to create a grievance system
for inmates and provides that a remedy through the grievance system is the
exclusive administrative remedy available to an inmate for a claim for
relief against the TDCJ that arises while the inmate is housed in a TDCJ
facility. See Tex.
Gov=t
Code Ann. ' 501.008(a) (Vernon
2004).  An inmate may not file
such a claim for relief against the TDCJ in state court until he has
exhausted his administrative remedies through the grievance system.  See id. ' 501.008(d).  Williams does not dispute that his
claims against Appellees are subject to the TDCJ grievance
system.

[3]Appellees asserted,
incorrectly, in their motion to dismiss that Williams did not file a
certified copy of his trust fund account statement.  See id. ' 14.006(f)
(requiring the statement to reflect the balance of the account at the time
the claim is filed and activity in the account during the six months
preceding the date on which the claim is filed).  We note that while Williams did
not attach a copy of his trust fund statement to his original petition, he
did subsequently file this document in the trial court before the
Appellees filed their motion to dismiss.

[4]Specifically,
Williams stated that his grievance was returned to him on October 30,
2003, with the remarks, AYou were reviewed
by UCC on 10-22-30.  A unit
transfer was recommended.@

[5]Williams claimed
that he submitted two more grievances on October 17 that were both
returned to him on October 30, 2003, with the response, AThis grievance was
answered on a previous grievance.@

Williams continued
to submit step two grievances dated November 2003, December 31, 2003, and
January 29, 2004, to which he received no
response.

[6]Because we have
held that the trial court properly dismissed Williams=s suit with
prejudice based on procedural defects, we need not reach his remaining
points, which all concern the actual merits of the suit.  See Tex. R. App. P. 47.1.