P. David Romei v. State
P. David Romei v. State
Opinion
IN THE
TENTH COURT OF APPEALS
No. 10-09-00062-CR
No. 10-09-00063-CR
P. David Romei,
Appellant
v.
The State of Texas,
Appellee
From the 361st District Court
Brazos County, Texas
Trial Court Nos. 07-04489-CRF-361 and 07-04491-CRF-361
ORDER
In an order dated April 7, 2010, this Court held:
It is the joint responsibility of this Court and the trial court to ensure that the appellate record is timely filed. Tex. R. App. P. 35.3(c). Further, this Court may enter any order necessary to ensure the timely filing of the appellate record. Id. Accordingly, the supplemental reporter’s record is ORDERED to be filed no later than 7 days from the date of this order.
Failure to file the reporter’s record as herein ordered will result in an abatement order for the trial court, the Honorable Steve Smith of the 361st District Court, to determine, working with the official reporter, Felix Thompson, a date certain by which the supplemental reporter’s record will be filed.
The reporter’s record in these appeals was originally due over one year ago on March 13, 2009. After substantial effort by this Court, a reporter’s record was filed on October 19, 2009. The Court was informed by letter dated February 22, 2010 that appellant requested preparation of a “supplemental” reporter’s record because appellant discovered that the reporter’s record filed on October 19, 2009 was incomplete.
A purported supplemental record was filed on April 14, 2010; however, it was not accompanied by a signed certificate. The Court received a signed certificate a week later on April 21, 2010. At that time, the Clerk of this Court failed to notice that the supplemental record was still incomplete. The supplemental record did not contain a requested transcription of a hearing held on October 16, 2008. This deficiency was brought to the Court’s attention on April 30, 2010.
Accordingly, this appeal is ORDERED to be abated for the trial court, the Honorable Steve Smith of the 361st District Court, to determine, working with the official reporter, Felix Thompson, a date certain by which the supplemental reporter’s record will be filed. A determination must be made in writing and provided to the trial court clerk within 7 days from the date of this order. The trial court clerk is ordered to provide a supplemental clerk’s record, containing the written determination of the trial court, within 14 days from the date of this order.
Further, all briefing schedules continue to be suspended until further order of the Court.
PER CURIAM
Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
Order issued and filed May 6, 2010
Publish
for abuse of discretion. Brewer v. Simental, 268 S.W.3d 763, 767 (Tex. App.—Waco 2008, no pet.). A prison inmate who files suit in a Texas state court pro se and who seeks to proceed in forma pauperis must comply with the procedural requirements set forth in Chapter 14 of the Civil Practice and Remedies Code. Id. (citing Tex. Civ. Prac. & Rem. Code Ann. §§ 14.002(a), 14.004, 14.005 (Vernon 2002)). Failure to fulfill those procedural requirements will result in dismissal of an inmate’s suit. Id.
Subsection 14.005(a) mandates that an inmate who files a claim subject to the TDCJ grievance system file an affidavit or unsworn declaration stating the date that his grievance was filed and the date that he received the written grievance decision. Id. at 768 (citing Tex. Civ. Prac. & Rem. Code Ann. § 14.005(a)(1)). The section also mandates the filing of a copy of the written grievance decision. Id. (citing Tex. Civ. Prac. & Rem. Code Ann. § 14.005(a)(2)). If an inmate does not strictly comply with subsection 14.005(a), a trial court does not abuse its discretion in dismissing the claim. Id.
Easter’s belated filing of his motion to enlarge the record included only copies of the Step 1 and Step 2 grievance forms. He failed to file an affidavit or unsworn declaration stating the date that his grievance was filed and the date that he received the written grievance decision.[2]
Because of Easter’s failure to comply with section 14.005, the trial court did not abuse its discretion in dismissing Easter’s suit. We overrule issue one.
Easter’s second issue asserts that the trial court’s dismissal for a single noncompliance with Chapter 14 violates the open courts provision of the Texas Constitution. His third issue asserts that the trial court denied Easter due process by giving a “much too technical reading” of his pro se pleading. Because neither of these complaints was asserted in the trial court, they have not been preserved for appellate review. Tex. R. App. P. 33.1(a); see Brewer, 268 S.W.3d at 767 (“Constitutional violations must be raised in the trial court for them to be preserved for appellate review.”). We overrule issues two and three.
Having overruled Easter’s three issues, we affirm the trial court’s order of dismissal.
REX D. DAVIS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed June 8, 2011
[CV06]
[1] Several weeks after the filing of his petition, Easter filed a “motion to enlarge the record” that included his administrative grievances. This motion apparently was not served on the Attorney General, which accounts for the allegation that Easter had failed to exhaust his administrative remedies.
[2] “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.” Tex. Civ. Prac. & Rem. Code Ann. § 14.005(b). The Step 2 grievance shows a TDCJ response date of August 24, 2009. Easter mailed his petition for filing on September 29 (the petition was actually filed on October 5), and if Easter received the Step 2 grievance decision on or about August 24, his claim was untimely filed, which further warranted the trial court’s dismissal.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.