COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00238-CV
WALTER ROY APPELLANT
V.
DISTRICT ATTORNEY JOE APPELLEES
SHANNON JR. AND JUDGE R.E.
THORNTON
----------
FROM THE 352ND DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 352-258353-12
----------
MEMORANDUM OPINION1
----------
I. Introduction
Appellant Walter Roy, pro se, an inmate at the O.B. Ellis Unit of the Texas
Department of Criminal Justice, appeals from the trial court’s order dismissing his
suit with prejudice. In three issues, he contends that the trial court erred by (1)
1
See Tex. R. App. P. 47.4.
dismissing his suit as frivolous under chapter 14 of the Texas Civil Practice and
Remedies Code, (2) denying his motion for bench warrant, and (3) failing to rule
on his motions for discovery and for default judgment. We affirm.
II. Factual Background
Roy was convicted of two counts of attempted murder and two counts of
engaging in organized crime and was sentenced to three twenty-year sentences
and a life sentence. Roy v. State, 997 S.W.2d 863, 864 (Tex. App.—Fort Worth
1999, pet. ref’d); see Roy v. Quarterman, No. 4:06-CV-494-A, 2007 WL 142579,
at *1 (N.D. Tex. Nov. 17, 2006). At trial, the jury heard evidence that Roy “shot
Benjamin [Robles] and Paula [Lebron] with a firearm that is a deadly weapon,
that he is a member of the Crips, a criminal street gang, and that when he shot
them, [Roy] was acting with the intent to participate in organized criminal activity
as a member of that gang.” Roy, 997 S.W.2d at 868. The Honorable Robert
Thornton, now deceased, presided over Roy’s trial. The Honorable Tim Curry,
now deceased, was the Tarrant County Criminal District Attorney at that time.
On July 29, 1999, this court affirmed Roy’s conviction and sentence. Roy,
997 S.W.2d at 869. On November 22, 2000, Roy filed an application for an
article 11.07 writ of habeas corpus with the Texas Court of Criminal Appeals.
Ex parte Roy, No. WR-41,654-02. The court denied the application without an
order. Id. Roy filed a second application, which was dismissed, on April 24,
2006. Ex parte Roy, No. WR-41,654-03. Roy then filed a petition for writ of
2
habeas corpus in federal court pursuant to 28 U.S.C. § 2254. Roy, 2007 WL
142579, at *1. The court dismissed Roy’s writ as time-barred. Id. at *2.
On March 12, 2012, Roy filed a “Due Course of Law Complaint” against
Judge Thornton and Appellee Joe Shannon, the current Tarrant County District
Attorney, in state district court, along with an application to proceed in forma
pauperis. Roy claimed that (1) he should have been charged with aggravated
assault instead of attempted murder; (2) he was wrongly charged with engaging
in organized crime; (3) there was no evidence to support the organized crime
conviction; (4) the trial court erred in permitting testimony about Roy’s
teardrop tattoo; (5) the photographic line-up was impermissibly suggestive; (6)
the fingerprint and DNA evidence established Roy was never in possession of
the gun used in committing the offense; (7) Roy’s witnesses were denied the
opportunity to testify; and (8) the State’s witnesses were coached.
Roy sought a declaration that the acts and omissions described in his
complaint violated his rights under the United States Constitution and the laws of
the United States. He also requested a permanent injunction against Thornton
and Shannon ordering them to admit that those acts and omissions violated
Roy’s due process rights and article 2.01 of the Texas Code of Criminal
Procedure. Shannon was served, and he filed an answer and a motion to
3
dismiss pursuant to chapter 14 of the Texas Civil Practice and Remedies Code. 2
See Tex. Civ. Prac. & Rem. Code Ann. §§ 14.001–.014 (West 2002 & Supp.
2014).
While this case was pending in the trial court, Roy filed two writs of
mandamus with this court, both of which were denied. See In re Walter Roy, No.
02-13-00178-CV, 2013 WL 2338707 (Tex. App.—Fort Worth May 30, 2013, orig.
proceeding) (mem. op.); In re Walter Roy, No. 02-12-00494-CV, 2012 WL
6124962 (Tex. App.—Fort Worth Dec. 11, 2012, orig. proceeding) (mem. op.).
Additionally, Roy filed several motions in the trial court, including a motion for
bench warrant, a motion for discovery, and a motion for default judgment.
On March 4, 2013, the trial court denied Roy’s motion for bench warrant
and motion for discovery. The trial court granted Shannon’s motion to dismiss
with prejudice on June 20, 2013. This appeal followed.
III. Dismissal Pursuant to Chapter 14 of the
Texas Civil Practice and Remedies Code
In his first issue, Roy argues that the trial court abused its discretion by
dismissing his complaint as frivolous under chapter 14 because his claims have
an arguable basis in law and fact. A trial court may dismiss an inmate’s claim
pursuant to chapter 14 upon finding that a lawsuit is malicious or frivolous. Tex.
2
Roy never served Judge Thornton’s estate or his personal representative,
nor did his estate or personal representative make an appearance. Thus, Judge
Thornton is not a party to this appeal.
4
Civ. Prac. & Rem. Code Ann. § 14.003(a)(2). In making this determination, the
court may consider whether:
(1) the claim’s realistic chance of ultimate success is slight;
(2) the claim has no arguable basis in law or in fact;
(3) it is clear that the party cannot prove facts in support of the
claim; or
(4) the claim is substantially similar to a previous claim filed by the
inmate because the claim arises from the same operative
facts.
Id. § 14.003(b).
We review a dismissal under chapter 14 for an abuse of discretion. Bishop
v. Lawson, 131 S.W.3d 571, 574 (Tex. App.—Fort Worth 2004, pet. denied). “In
conducting our review, we take as true the allegations in the inmate’s petition and
review the types of relief and causes of action set out therein to determine
whether, as a matter of law, the petition stated a cause of action that would
authorize relief.” Leachman v. Dretke, 261 S.W.3d 297, 304 (Tex. App.—Fort
Worth 2008, no pet.) (op. on reh’g).
When an inmate’s lawsuit is dismissed as frivolous for having no basis in
law or in fact, but no fact hearing is held, our review focuses on whether the
inmate’s lawsuit has an arguable basis in law. See Tex. Civ. Prac. & Rem.Code
Ann. § 14.003; Leachman, 261 S.W.3d at 304. “A claim has no arguable basis in
law if it is an indisputably meritless legal theory.” Leachman, 261 S.W.3d at 304.
A claim also has no arguable basis in law if the inmate has failed to exhaust his
5
administrative remedies. Retzlaff v. Tex. Dep’t of Crim. Justice, 94 S.W.3d 650,
653 (Tex. App.—Houston [14th Dist.] 2002, pet. denied).
Here, the trial court dismissed Roy’s claims with prejudice. A dismissal
with prejudice operates as if the case had been fully tried and decided. Hamilton
v. Pechacek, 319 S.W.3d 801, 810 (Tex. App.—Fort Worth 2010, no pet.). When
reviewing whether the trial court abused its discretion by dismissing claims with
prejudice under chapter 14, we consider whether the inmate’s error could be
remedied with more specific pleading; if so, a dismissal under chapter 14 with
prejudice is improper. Id.; see also Leachman, 261 S.W.3d at 306.
Shannon contends that dismissal with prejudice was proper because he
was sued for acts committed in his official capacity as district attorney, and
therefore, he is afforded absolute immunity. As the District Attorney of Tarrant
County, Shannon is entitled to derived judicial immunity, a form of absolute
immunity, for actions intimately associated with the judicial phase of the criminal
process, including actions in connection with the prosecution of Roy. See, e.g.,
Imbler v. Pachtman, 424 U.S. 409, 430–31, 96 S. Ct. 984, 995 (1976)
(recognizing that prosecutors have absolute immunity to suits under 42 U.S.C.
§ 1983); Charleston v. Pate, 194 S.W.3d 89, 91 (Tex. App.—Texarkana 2006, no
pet.) (stating that district attorneys and prosecutors are absolutely immune when
performing their prosecutorial functions). Therefore, unless an exception to
Shannon’s immunity claim exists, Roy’s claim would have no arguable legal
6
basis and the realistic chance of ultimate success in such a proceeding would be
extremely slight. See Higgins v. Blount, No. 07-12-00093-CV, 2013 WL
2244118, at *2 (Tex. App.—Amarillo May 17, 2013, pet. denied) (mem. op.).
Roy argues that because he is seeking declaratory and injunctive relief,
not money damages, the ultra vires exception waives Shannon’s immunity.
Under this exception, immunity “does not preclude prospective injunctive
remedies in official-capacity suits against government actors who violate
statutory or constitutional provisions.” City of El Paso v. Heinrich, 284 S.W.3d
366, 368–69 (Tex. 2009). To invoke the ultra vires exception, Roy was required
to show that the prosecutor acted without legal authority or failed to perform a
purely ministerial act. See id. at 372.
Here, Roy is requesting a declaration that certain acts and omissions
committed during his trial violated his rights under the United States Constitution
and the laws of the United States and a permanent injunction against Shannon
ordering him to admit that those acts and omissions violated his due process
rights and article 2.01 of the Texas Code of Criminal Procedure. Roy is seeking
retrospective declaratory relief that certain past acts and omissions violated his
constitutional rights and the laws of the United States. Further, to the extent that
Roy’s request for relief appears to request prospective injunctive relief, he is
seeking a future admission that past acts and omissions were committed.
Although the ultra vires exception to governmental immunity permits prospective
7
declaratory and injunctive relief, it does not permit relief for acts and omissions
Roy believes were already committed. See Higgins, 2013 WL 2244118, at *3
(citing Heinrich, 284 S.W.3d at 374–77).
Shannon is entitled to derived immunity because he acted in his official
governmental capacity. See Charleston, 194 S.W.3d at 91. Moreover, for the
reasons stated above, the ultra vires exception does not apply. See Higgins,
2013 WL 2244118, at *3. Thus, we conclude that Roy’s claim lacks an arguable
legal basis because he requests retrospective declaratory relief and prospective
injunctive relief for past acts and omissions. See id. Further, because Roy’s
claim relies upon an indisputably meritless legal theory, Roy cannot remedy this
deficiency by amending his pleadings. See Hamilton, 319 S.W.3d at 810.
Therefore, we hold that the trial court did not abuse its discretion by granting
Shannon’s chapter 14 motion and dismissing Roy’s claim with prejudice.
Accordingly, we overrule Roy’s first issue.
IV. Access to Court
In his second issue, Roy argues that the trial court abused its discretion by
denying his request for a bench warrant or, in the alternative, his request to
participate by telephone. Specifically, Roy asserts that the trial court abused its
discretion by not allowing him to attend hearings that occurred on March 4, 2013,
April 5, 2013, May 5, 2013, and June 6, 2013. Because the only two hearings
held in this case occurred on March 1, 2013, and April 5, 2013, we construe
8
Roy’s second issue as a complaint that the trial court abused its discretion by not
allowing him to attend those hearings.
We review the trial court’s ruling on Roy’s motion for an abuse of
discretion. See In re Z.L.T., 124 S.W.3d 163, 165–66 (Tex. 2003) (holding that a
trial court did not abuse its discretion by denying a request for bench warrant
because inmate failed to meet his burden of justifying the need for his presence
at trial); Ringer v. Kimball, 274 S.W.3d 865, 868–69 (Tex. App.—Fort Worth
2008, no pet.) (holding that the trial court did not abuse its discretion when
denying inmate’s request for bench warrant, or in the alternative, request to
appear by video conference because inmate failed to carry his burden); In re
D.D.J., 136 S.W.3d 305, 314 (Tex. App.—Fort Worth 2004, no pet.) (holding that
a trial court abuses its discretion when it fails to consider inmate’s participation by
alternative means). A trial court abuses its discretion if it acts arbitrarily and
unreasonably or without reference to guiding principles. Downer v. Aquamarine
Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985), cert. denied, 476 U.S.
1159 (1986). When reviewing matters committed to the trial court’s discretion,
we may not substitute our own judgment for that of the trial court. Bowie Mem’l
Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002).
At a non-evidentiary, pre-trial hearing on March 1, 2013, the trial court took
Roy’s motion for bench warrant and motion for discovery under submission
without oral argument. The trial court denied both motions. At a non-evidentiary
9
hearing on April 5, 2013, the trial court heard Shannon’s motion to dismiss Roy’s
suit by submission without oral argument. The trial court granted the motion.
The law governing inmate bench warrant requests is well established.
Z.L.T., 124 S.W.3d at 165–66. While an inmate does not have an absolute right
to appear in person at every court proceeding, he cannot be denied access to the
courts simply because he is an inmate. Id. at 165. “[T]he inmate’s right of
access to the courts must be weighed against the protection of our correctional
system’s integrity.” Id.
There are “a variety of factors the trial courts should consider when
deciding whether to grant an inmate’s request for a bench warrant,” or to appear
by alternative means, including: (1) the cost and convenience of transporting the
inmate to the court; (2) the security risk and potential danger to the court and the
public by allowing the inmate to attend court; (3) whether the inmate’s claims are
substantial; (4) whether a determination of the matter can reasonably be delayed
until the inmate is released; (5) whether the inmate can and will offer admissible,
noncumulative testimony that cannot be offered effectively by deposition,
telephone, or otherwise; (6) whether the inmate’s presence is important in
judging his demeanor and creditability compared with that of other witnesses; (7)
whether the trial is to the court or to a jury; and (8) the inmate’s probability of
success on the merits. Z.L.T., 124 S.W.3d at 165–66; see Ringer, 274 S.W.3d at
869; D.D.J., 136 S.W.3d at 311–12. Further, an inmate requesting a bench
10
warrant or to appear by other means bears the burden to identify with sufficient
specificity the grounds establishing his right to relief. See Ringer, 274 S.W.3d at
868–69; see also Z.L.T., 124 S.W.3d at 166 (explaining that a litigant’s status as
an inmate does not alter his burden to establish a right to relief). An inmate must
provide “factual information showing why his interest in appearing outweigh[s] the
impact on the correctional system.” Z.L.T., 124 S.W.3d at 166.
Here, Roy provided no factual information to enable the court to balance
the factors referenced in Z.L.T. In his motion, Roy “request[ed] the court . . .
issue a warrant from the sheriff of Tarrant County or by telephone so that [he]
may give . . . testimony and to assure [himself] a fair proceeding.” The only
factual information in Roy’s motion for bench warrant is that he is incarcerated in
the O.B Ellis Unit in Huntsville, Walker County, Texas. He provided no factual
information in support of his request to testify or to be assured of a fair trial. He
did not explain what his testimony would establish at a non-evidentiary
submission hearing, why his testimony would be helpful, or how he would be
harmed by not attending the hearing in person or, in the alternative, by
telephone. Therefore, Roy did not meet his burden to establish his right to relief.
See Z.L.T., 124 S.W.3d at 166.
A trial court’s decision to grant an inmate’s request to appear by alternative
means is grounded in “[t]he right of a prisoner to have access to the courts[,]
[which] entails not so much his personal presence as the opportunity to present
11
evidence or contradict the evidence of the opposing party.” D.D.J., 136 S.W.3d
at 314 (quoting Dodd v. Dodd, 17 S.W.3d 714, 717 (Tex. App.—Houston [1st
Dist.] 2000, no pet.), disapproved in part on other grounds by Z.L.T., 124 S.W.3d
at 166). Roy’s appearance at the hearings in question would not have affected
his ability to participate effectively because of the non-evidentiary nature of the
proceedings and because the trial court considered the motions by submission
without oral argument. See Hamilton, 319 S.W.3d at 808. Because Roy did not
meet his burden, we hold that the trial court did not abuse its discretion by
denying Roy’s request for a bench warrant to appear in person, or in the
alternative, by telephone. Accordingly, we overrule Roy’s second issue.
V. Chapter 14 Discovery
In his third issue, Roy argues that the trial court abused its discretion by
denying his motion for discovery and by failing to rule on his motion for default
judgment.
Roy filed his “Due Course of Law Complaint” on March 12, 2012. On April
12, 2012, Roy served Shannon with a request for admissions and filed a motion
for discovery requesting (1) transcripts from his grand jury proceedings and (2)
all of the evidence that was used at trial. On April 13, 2012, Shannon filed an
answer to Roy’s complaint and a motion to dismiss Roy’s suit pursuant to chapter
14. When Shannon failed to answer the request for admissions, Roy filed a
motion for default judgment based upon the assumption that the admissions
12
were deemed admitted by Shannon’s failure to answer within thirty days of
service. See Tex. R. Civ. P. 198.2(a), (c), 198.3.
Once a motion to dismiss under chapter 14 is filed, a trial court is required
to “suspend discovery relating to the [inmate’s] claim pending the hearing.” Tex.
Civ. Prac. & Rem. Code Ann. § 14.003(d). Because a motion to dismiss under
chapter 14 automatically suspends discovery, the trial court did not abuse its
discretion by denying Roy’s motion for discovery or by failing to rule on his
motion for default judgment. See Pohl v. Livingston, No. 03-06-00625-CV, 2008
WL 974785, at *2 (Tex. App.—Austin Apr. 10, 2008, no pet.) (mem. op.) (holding
trial court did not err by suspending discovery in light of section 14.003(d)’s
automatic suspension of discovery). Accordingly, we overrule Roy’s third issue.
VI. Conclusion
Having overruled each of Roy’s three issues, we affirm the trial court’s
judgment.
/s/ Anne Gardner
ANNE GARDNER
JUSTICE
PANEL: GARDNER, MCCOY, and MEIER, JJ.
DELIVERED: August 21, 2014
13