Opinion issued November 4, 2010
In The
Court of Appeals
For The
First District of Texas
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NO. 01-08-01024-CV
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BRIAN CALVIN ADAMS, Appellant
V.
BRYAN COLLIER AND RISSIE OWENS, Appellees
On Appeal from the County Court at Law No. 3
Brazoria County, Texas
Trial Court Case No. CI040900
MEMORANDUM OPINION
Appellant, Brian Calvin Adams,[1] an inmate in the Texas Department of Criminal Justice-Institutional Division (the “Department”), challenges the trial court’s order dismissing, under Chapter 14 of the Texas Civil Practice and Remedies Code,[2] his lawsuit for declaratory and injunctive relief against appellees, Bryan Collier and Rissie Owens, [3] for the violation of his civil rights[4] by an ex post facto punishment through the retroactive application of new parole procedures[5] to his future parole reviews. In four issues, Adams contends that the trial court erred in granting appellees’ Chapter 14 motion to dismiss his lawsuit based upon its finding that “changes in parole did not violate the Ex Post Facto Clause” of the United States Constitution[6] and in refusing to address his “constitutional claim of denial of redress by grievance.”
We affirm.
Background
In his original petition, Adams seeks a declaratory judgment and injunctive relief against Collier, the Director of the Texas Board of Pardons and Paroles, and Owens, the Presiding Officer of the Texas Board of Pardons and Paroles, primarily complaining in his original petition that the State’s application of certain parole review procedures violates the Ex Post Facto Clause. Adams alleges that he pleaded guilty to the offense of aggravated sexual assault in 1996; the trial court had sentenced him to confinement for a term of sixteen years; at the time of his conviction, the Texas Code of Criminal Procedure governed the parole review guidelines and required him to obtain “two votes (a majority) of the three voting parole panel members” in order “to receive parole”; on September 1, 1997, the pertinent Texas Code of Criminal Procedure provision was repealed and his parole is now subject to section 508.046 of the Texas Government Code, entitled “Extraordinary Vote,” which “require[s] all parole board members[[7]] . . . to vote on the parole consideration for prisoners convicted of aggravated sexual assault”; and, beginning in 2004, the Texas Board of Pardons and Parole “subjected” him to the “Extraordinary Vote” provision of Chapter 508 in his parole proceedings.
Adams further alleges that the application of the “Extraordinary Vote” provision impairs his “vested rights” by “requiring the vote of all seven parole board members and by increasing the actual number of positive votes he must receive in order to be granted parole.” He asserts that he is being subjected to this new parole provision despite the Texas Court of Criminal Appeals’ “repeated” holdings that an inmate’s “eligibility” for parole is determined by the statute in effect “when the offense was committed.” Adams further complains that the State is subjecting him to the new statutory provision, contrary to a statutory savings clause.[8] In addition to his complaints about the State’s application of the “Extraordinary Vote” provision, Adams also generally complains that the board failed to provide him a required “detailed written statement describing the specific circumstances regarding the departure from the parole guidelines,” to “consider his progress in any programs in which he has participated during the term of his confinement,” and to “require all seven parole board members to vote on his parole consideration reviews.” Adams seeks a “new and fair hearing.”
In their motion to dismiss, appellees, pursuant to Chapter 14, argued that Adams’s lawsuit is frivolous because “Texas prisoners have no cognizable liberty interest in parole” and the change “in parole procedure was not punitive in nature.”
After the trial court granted appellees’ motion to dismiss, Adams filed a response to the motion, a request for a hearing, and a supplemental petition. The trial court, in response to these additional pleadings, sent Adams a letter stating that it had granted the motion to dismiss, and it enclosed a copy of its previous order. Although the trial court acknowledged Adams’s filing of additional motions and requests, it stated that “the original order of dismissal stands.” Adams subsequently filed a request for findings of fact and conclusions of law, and the trial court entered findings of fact and conclusions of law. The trial court found, among other things, that Adams “allegations are cognizable under section 1983,” Adams “has no constitutionally protected liberty interest in parole,” Adams “has been before the parole review authorities several times” and “not been granted parole,” “the change in voting requirements for parole from the time of [Adams’s] conviction and the application of [section] 508.046, currently, does not change or lengthen [Adams’s] original sentence, thus it does not violate the Ex Post Facto Clause”[9]; and Adams’s “allegations, and lawsuit as a whole, are frivolous or malicious, and without merit.”
Standard of Review
We generally review a trial court’s dismissal of an inmate’s suit under Chapter 14 for abuse of discretion. See Thompson v. Tex. Dep’t of Criminal Justice-Inst. Div., 33 S.W.3d 412, 414 (Tex. App.—Houston [1st Dist.] 2000, pet. denied); Wilson v. TDCJ-ID, 268 S.W.3d 756, 758 (Tex. App.—Waco 2008, no pet.). When a lawsuit is dismissed as frivolous for having no basis in law or in fact, and no fact hearing was held, our review focuses on whether the inmate’s lawsuit has an arguable basis in law, which we review de novo. Scott v. Gallagher, 209 S.W.3d 262, 266 (Tex. App.—Houston [1st Dist.] 2006, no pet.). A claim has no arguable basis in law if it is based on an indisputably meritless legal theory. Id. In conducting our de novo review, we take as true the allegations of the inmate’s petition. Id.
Dismissal
In four issues, Adams argues that the trial court erred in granting appellees’ Chapter 14 motion to dismiss because it erroneously found that “changes in parole did not violate the Ex Post Facto Clause” and it failed to address his “constitutional claim of denial of redress by grievance.”
Chapter 14 of the Texas Civil Practice and Remedies Code governs inmate litigation. See Tex. Civ. Prac. & Rem. Code Ann. §§ 14.001–.014. (Vernon 2002). Under Chapter 14, a trial court may dismiss an inmate suit brought in forma pauperis, either before or after service of process, by finding that it is frivolous or malicious. Id. § 14.003(a)(2). In determining whether a claim is frivolous or malicious, the trial 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)(1)–(4). In finding that a claim is frivolous or malicious, the court “may” hold a hearing “before or after service of process” and “it may be held on motion of the court, a party, or the clerk of the court.” Id. § 14.003(c).
Due Process & Equal Protection Claims
Adams’s substantive arguments, in both the trial court and this Court, primarily arise from the alleged Ex Post Facto violation. However, Adams makes general references to alleged due process and equal protection violations in his first issue, and, thus, we initially consider these matters. See U.S. Const. amends. V, XIV.
The United States Constitution’s Due Process Clause protections are “only invoked when State procedures which may produce erroneous or unreliable results imperil a protected liberty or property interest.” Johnson v. Rodriguez, 110 F.3d 299, 308 (5th Cir. 1997). Texas law does not create a liberty interest in parole that is protected by the Due Process Clause. Allison v. Kyle, 66 F.3d 71, 74 (5th Cir. 1995); Orellana v. Kyle, 65 F.3d 29, 32 (5th Cir.1995); see also Baca v. Owens, 293 Fed. Appx 247, 251 (5th Cir. 2008) (“It is therefore axiomatic that because Texas prisoners have no protected liberty interest in parole they cannot mount a challenge against any state parole review procedure on procedural (or substantive) Due Process grounds.”); Martin v. Tex. Bd. of Criminal Justice, 60 S.W.3d 226, 230 (Tex. App.—Corpus Christi 2001, no pet.) (“Texas law does not create a liberty interest in parole that is protected by due process.”). Thus, to the extent appellant’s trial court pleadings can be construed to raise an alleged due process violation, and to the extent appellant’s appellate brief can be construed to present a challenge to the trial court’s dismissal of any such claim, we hold that the trial court did not err in dismissing such a claim as frivolous.
In regard to any possible equal protection claim, Adams only referenced an equal protection claim in his supplemental petition, which was filed after the trial court had already entered its order dismissing his claims as frivolous. In his supplemental petition, Adams claimed that he had inadvertently omitted the references to equal protection in his original petition, and he merely sought to insert references to the phrase “equal protection” in several locations in his original petition. Although the trial court acknowledged receiving Adams’s supplemental petition, it expressly stated in a subsequent order that the original order dismissing Adams’s claim stood. Adams did not seek or obtain a new trial, and he has not argued on appeal that the trial court erred in refusing to consider his untimely supplemental petition in which he asserted equal protection violations.
Nevertheless, even if Adams had timely presented an equal protection claim to the trial court, Adams, in his appellate briefing, merely alleges that he “has a right to expect to be reviewed under the laws in effect at the time of his offense,” his “failure to receive that treatment clearly states an equal protection claim,” and in the past “parole-eligible prisoners were reviewed in accordance with the law in effect at the time of their offense.” However, to bring an action under section 1983, a claimant must state specific facts, not merely conclusory allegations. See Brinkmann v. Johnston, 793 F.2d 111, 113 (5th Cir. 1986). Adams’s conclusory assertions that he was treated differently are not sufficient to give rise to an equal protection claim.
Accordingly, we overrule Adams’s first issue.
Ex Post Facto Clause
In his second and third issues, Adams argues that the trial court erred in dismissing his lawsuit as frivolous because it incorrectly found that “changes in parole rules did not violate the Ex Post Facto Clause.” Adams admits that “there is case-specific precedent that has stated that certain changes in parole laws do not violate the Ex Post Facto Clause.” Nevertheless, he urges this Court to follow an unpublished case out of the United States District Court for the Western District of Texas, which has since been reversed, on other grounds, by the United States Court of Appeals for the Fifth Circuit. See Wion v. Dretke, No. MO-05-CV-146 (W.D. Tex. Mar. 29, 2007), rev’d, Wion v. Quarterman, 567 F.3d 146 (5th Cir. 2009).
Under the Ex Post Facto Clause, states are barred from retroactively altering the definition of crimes or increasing the punishment for criminal acts. U.S. Const. art. I, § 10, cl. 1; Wallace v. Quarterman, 516 F.3d 351, 354 (5th Cir. 2008) (citing Collins v. Youngblood, 497 U.S. 37, 43, 110 S. Ct. 2715 (1990)). A statute violates the Ex Post Facto Clause only if it retroactively effects a change in the definition of a crime or increases the punishment attached to a crime. Id.[10]
In Wallace, the United States Court of Appeals for the Fifth Circuit considered, and rejected, complaints similar to those raised by Adams. See id. Like appellant, Wallace complained about a law changing the number of board members that participated in parole voting panels. Id. at 353. Wallace noted that, at the time of his conviction, the Texas Code of Criminal Procedure provided that parole board members and commissioners “may act in panels comprised of three persons” and that decisions of the panels “shall be by a majority vote.” Id. at 353. Wallace asserted that, when he became eligible for parole, procedural requirements for parole under Government Code section 508.046 “were stricter” in that the board was comprised of eighteen members, “all members of the board” were required to “vote on the release on parole of the inmate,” and “at least two-thirds of the members must vote in favor of the release on parole.” Id.
Noting that the provisions in effect in 1981 were “discretionary” and did not create any “pre-existing right” to release, the Fifth Circuit concluded that statutory changes brought by the enactment of section 508.046 did “not produce a sufficient risk of increasing the measure of punishment attached to the covered crimes.” Id. at 355 (citation omitted). The court explained that “[p]arole is not a right, but rather only an expectation that may be granted by the Commission” and that “[t]he Parole Commission determines a prisoner’s suitability for parole, not his eligibility, for the latter is determined by the length of one’s sentence.” Id. (citation omitted). The court stated, “While changes to parole eligibility could retroactively increase punishment, determinations of suitability for parole, as determined by an eighteen- or a three-person panel, are discretionary.” Id. The court summarized, “Rules affecting eligibility for parole may violate the [Ex Post Facto] clause, but discretionary rules affecting suitability do not.” Id. Because the change in board members in section 508.046 addressed suitability, and not eligibility, for parole, the court rejected the appellant’s Ex Post Facto challenge. Id. at 355–56.[11]
Here, we recognize that Adams’s Ex Post Facto complaint is slightly different than that presented in Wallace because the amendments to section 508.046 that are being applied to Adams provide for a seven member board. The Fifth Circuit Court of Appeals, applying the reasoning of Wallace, has already rejected challenges brought by inmates concerning the retroactive application of the amended version of section 508.046 requiring a two-thirds majority of a seven board member to approve parole. Clark v. Owens, 371 Fed. Appx. 553, 554–55 (5th Cir. 2010); see also Nelson v. Pardons and Parole Chairman, 358 Fed. Appx. 600, 601 (5th Cir. 2010) (stating that appellant’s “ex post facto claim is similarly frivolous, as he has not shown that the retroactive application of the complained of parole procedures will result in a longer period of incarceration than those procedures in effect on the date he committed the offense”); Goodrich v. Livingston, 294 Fed. Appx. 985 (5th Cir. 2008) (stating that “Parole Board did not violate the Ex Post Facto Clause by applying section 508.046 to [the appellant] because it did not alter the definition of the crime for which he was convicted nor increase his punishment”).
We conclude, consistent with these recent cases from the Fifth Circuit, that the reasoning set forth in Wallace applies to bar Adams’s complaint because a change in the number of board members addresses suitability, and not eligibility, for parole. There is nothing in the record to support Adams’s complaint that the statutory changes being applied to him have increased the punishment attached to his conviction. Accordingly, we hold that the trial court did not err in dismissing Adams’s Ex Post Facto claim as frivolous.
We overrule Adams’s second and third issues.
Redress by Grievance
In his fourth issue, Adams argues that he “raised a valid constitutional claim” of being denied “the right of redress by grievance” and that “at no time in the appellees’ Chapter 14 Motion, nor in the trial court’s Findings of Fact and Conclusions of Law was [his] claim ever addressed.” Adams’s appellate briefing on this issue is limited to a single paragraph, and Adams provides no factual discussion to explain his assertion of how he has been denied “the right of redress.” Thus, he has waived this issue for review. See Tex. R. App. P. 38.1(h). Moreover, the record before us establishes that the trial court addressed, and rejected, the only section 1983 claim before it—the Ex Post Facto claim.
We overrule Adams’s fourth issue.
Conclusion
We affirm the order of the trial court.
Terry Jennings
Justice
Panel consists of Justices Jennings, Alcala, and Sharp.
[1] Adams represents himself on appeal.
[2] Tex. Civ. Prac. & Rem. Code Ann. §§ 14.001–.014 (Vernon 2002).
[3] Appellant also named Linda Garcia as a defendant in the trial court, but he did not serve her and she is not a party to this appeal.
[4] See 42 U.S.C. § 1983.
[5] See Tex. Gov’t Code Ann. § 508.046 (Vernon Supp. 2010).
[6] U.S. Const. art. I, § 10, cl. 1.
[7] As explained below, Adams contends that, although at one time the board size increased to eighteen members, there are now seven board members. It is undisputed that the two-thirds voting requirement has remain unchanged.
[8] Although Adams contends that he is being subjected to the “Extraordinary Vote” provision in section 508.046, he states in his petition that, in 2007, three parole members voted on his “parole consideration review,” and all three voted to deny him parole and to “set-off” his review for an additional three years.
[9] In support of its findings, the trial court cited Portley v. Grossman, 444 U.S. 1311, 100 S. Ct. 714 (1980); Wallace v. Quarterman, 516 F.3d 351 (5th Cir. 2008); and Nabelek v. Garrett, No. 14-01-00764-CV, 2003 WL 21710243 (Tex. App.—Houston [14th Dist.] July 24, 2003, pet. denied) (mem. op.).
[10] See also Nabelek v. Garrett, No. 14-01-00764-CV, 2003 WL 21710243, at *2 (Tex. App.—Houston [14th Dist.] July 24, 2003, pet. denied) (mem. op.) (explaining that “not every retroactive change in parole procedures that creates a risk of affecting an inmate’s term of confinement is prohibited by the ex post facto clause” and that “the controlling inquiry is whether the retroactive application creates a sufficient risk of increasing the length of punishment, as contrasted from only a speculative and attenuated possibility of doing so”).
[11] See also Nabelek, 2003 WL 21710243, at *2 (stating that “application of section 508.046 does not alter any of the determinants of parole timing or eligibility, but only how many board members will participate in the decision,” and, thus, it presents only “speculative and attenuated possibility of increasing punishment”).