Allen "F" Calton v. Steve Schiller

ACCEPTED
06-15-00062-cv
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
12/15/2015 10:55:06 AM
No. 06-15-00062-CV DEBBIE AUTREY
CLERK
___________________________________________________________________

IN THE COURT OF APPEALS
SIXTH JUDICIAL DISTRICT FILED IN
6th COURT OF APPEALS
TEXARKANA, TEXAS TEXARKANA, TEXAS
___________________________________________________________________
12/15/2015 10:55:06 AM
DEBBIE AUTREY
Clerk
ALLEN “F” CALTON,
Appellant

v.

STEVE SCHILLLER, SHARON KELLER,
TERRIE LIVINGSTON, LOUIS STURNS, JOHN CAYSE, BOB GILL,
Appellees
___________________________________________________________________
On Appeal from the 67th District Court, Tarrant County, Texas
Judge Donald J. Cosby Presiding
Cause No. 153-270690-14
__________________________________________________________________

BRIEF OF APPELLEES’
SHARON KELLER, TERRY LIVINGSTON, JOHN CAYSE,
BOB GILL AND LOUIS STURNS’ BRIEF

____________________________________________________________________

KEN PAXTON KAREN D. MATLOCK
Attorney General of Texas Assistant Attorney General
Chief, Law Enforcement Defense Division

CHARLES E. ROY DEMETRI ANASTASIADIS*
First Assistant Attorney General Assistant Attorney General
State Bar No. 01164480
JAMES E. DAVIS P.O. Box 12548, Capitol Station
Deputy Attorney General for Civil Litigation Austin, Texas 78711
(512) 463-2080 / (512) 936-2109 Fax

ATTORNEYS FOR DEFENDANTS-APPELLANTS
*Attorney of Record
Oral Argument Requested
 IDENTITY OF PARTIES AND COUNSEL

APPELLANT Pro se: Allen F. Calton, TDCJ No. 1123880

APPELLEES: Steve Schiller, Sharon Keller, Terrie
Livingston, Louis Sturns

ATTORNEYS FOR APPELLEES: Demetri Anastasiadis
Assistant Attorney General
Office of the Attorney General of Texas
Attorney for Sharon Keller, Terrie Livingston,
Louis Sturns, Bob Gill and John Cayce

Christopher Ponder
Tarrant County Assistant District Attorney
401 Belknap Street
Fort Worth, Texas 76196
Attorney for Steve Schiller

ii
 TABLE OF CONTENTS

Page

Identity of Parties.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Table of Authorities.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv, v, vi

Statutes, Rules and Codes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi

I. Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II. Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

A. Appellee Judges’ Response to Appellant’s Issue No. 5: The trial court did not
abuse its discretion by denying leave to file appellant’s Ninth Amended
Complaint. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

B. Appellee Judges’ Response to Appellant’s issues No. 4 and 6: The trial court
correctly granted Appellee Judges’ Motion to Dismiss. . . . . . . . . . . . . . . . . 3

Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Notice of Electronic Filing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Certificate of Service.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

iii
 TABLE OF AUTHORITIES

Case Page

Adams v. McIlhany,
593 F. Supp. 1025, 1032 (N.D. Tex. 1984). . . . . . . . . . . . . . . . . . . . . . . . . 10

Bonham State Bank v. Beadle,
907 S.W.2d 465, 467 (Tex. 1995).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

City of Los Angeles v. Lyons,
461 U.S. 95, 112-113 (1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Cozzo v. Tangipahoa Parish Council–President Gov’t,
279 F.3d 273, 280 (5th Cir. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Dallas County v. Halsey,
87 S.W.3d 553, 554 (Tex. 2002).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Delk v. Lehmberg,
No. 03–12–00678–CV, 2014 WL 1910314, at *3
(Tex. App.–Austin May 9, 2014, no pet.).. . . . . . . . . . . . . . . . . . . . . . . . . . 12

Di Portanova v. Monroe,
229 S.W.3d 324, 330 (Tex. App.-Houston [1st Dist.] 2006, pet. den.).. . . . . 8

Forrester v. White,
484 U.S. 219 (1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Heck v. Humphrey,
512 U.S. 477 (1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

In accord are Operation Rescue v. Planned Parenthood,
937 S.W.2d 60, 71-72 (Tex. App. – Houston [14th Dist.] 1996),
aff’d as modified, 975 S.W.2d 546 (Tex. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . 9

Koch v. Booth,
273 S.W.3d 451 (Tex. App. – Austin 2008, pet. den.). . . . . . . . . . . . . . . . . 10

iv
Lujan v. Defenders of Wildlife,
504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). . . . . . . . . . . . 8

McCarthy ex rel. Travis v. Hawkins,
381 F.3d 407, 412, reh’g denied, 391 F.3d 676; (5th Cir. 2004). . . . . . . . . . 8

Mireles v. Waco,
502 U.S. 9 (1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6

Okpalobi v. Foster,
244 F.3d 405, 421, 423, 425-426 (5th Cir. 2001).. . . . . . . . . . . . . . . . . . . 5, 8

Operation Rescue v. Planned Parenthood,
937 S.W.2d 60, 71-72 (Tex. App. – Houston [14th Dist.] 1996),
aff’d as modified, 975 S.W.2d 546 (Tex. 1998). . . . . . . . . . . . . . . . . . . . . . . 9

Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc.,
506 U.S. at 146, 113 S.Ct. at 689 (1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Pulliam v. Allen,
466 U.S. 522, 542-544 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 7, 10

Roy v. Shannon,
No. 02–13–00238–CV, 2014WL 4105271, at *3
(Tex.App.–Fort Worth August 21, 2014, no pet.). . . . . . . . . . . . . . . . . . . . 12

Smith v. District Attorney Office for Wood Cnty.,
No. 03–13–00220–CV, 2014 WL 5420536, at *2–3
(Tex. App.–Austin Oct. 24, 2014, pet. denied).. . . . . . . . . . . . . . . . . . . . . . 11

Smith v. 241st Dist. Ct. of Smith Cnty.,
No. 03-13-00719-CV, 2015 WL 1611703 *2-3
(Tex. App. - Austin Apr. 9, 2015, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . 11

St. Paul Fire & Mar. Ins. Co. v. Texas Workers’ Comp. Comm’n.
945 S.W.2d 886, 888-89 (Tex. App. – Austin 1997, no writ).. . . . . . . . . . . . . 9

Stump v. Sparkman,
435 U.S. 349, 356-57 (1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
v
Texas Ass’n of Business v. Texas Air Control Board,
852 S.W.2d 440, 444 (Tex. 1993).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Texas DPS v. Moore,
985 S.W.2d 149, 153 (Tex. App. – Austin 1998, no pet.). . . . . . . . . . . . . . . 8

Town of Palm Valley v. Johson,
87 S.W.3d 110, 111 (Tex. 2001).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Twilligear v. Carrell,
148 S.W.3d 502, 504
(Tex. App.—Houston [14th Dist. 2004, pet. denied). . . . . . . . . . . . . . . . . 5, 7

TNRCC v. IT-Davy,
74 S.W.3d 849, 855 (Tex. 2002).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Vargas v. Texas Dept. of Criminal Justice,
2012 WL 5974078 *3 (Tex. App.-Austin,2012, no pet.). . . . . . . . . . . . . . . . 6

Statutes, Rules and Codes

Article III, Eleventh Amendment, U.S. Constitution. . . . . . . . . . . . . . . . . . . . . . . . 8

42 U.S.C. 1983. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Tex. Civ. Prac. & Rem. Code Ch. 14. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Tex. Civ. Prac. & Rem. Code Ch. 37. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Tex. Civ. Prac. & Rem. Code 37.003. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Tex. Civ. Prac. & Rem. Code 65.011. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9

Tex. R. App. P. 38.1(i). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

vi
 No. 06-15-00062-CV
___________________________________________________________________

IN THE COURT OF APPEALS
SIXTH JUDICIAL DISTRICT
TEXARKANA, TEXAS
___________________________________________________________________

ALLEN “F” CALTON,
Appellant

v.

STEVE SCHILLLER, SHARON KELLER,
TERRIE LIVINGSTON, LOUIS STURNS, JOHN CAYSE, BOB GILL,
Appellees
__________________________________________________________________

BRIEF OF APPELLEES’
SHARON KELLER, TERRY LIVINGSTON, JOHN CAYSE,
BOB GILL AND LOUIS STURNS’ BRIEF
__________________________________________________________________

TO THE HONORABLE JUSTICES OF THE SIXTH COURT OF APPEALS:

Appellee Judges Sharon Keller, Terrie Livingston, John Cayce, Bob Gill and

Louis Sturns file this brief in support of the District Court’s dismissal of the suit

brought against them for actions taken in their official capacity as judicial officers of

the State of Texas.

I. Statement of the Case

Appellant Calton sued Judges Sharon Keller, Terrie Livingston, John Cayce,

Bob Gill and Louis Sturns for injunctive relief under 42 U.S.C. 1983. The District

Court granted their Motion to Dismiss the suit against them filed on the basis of
judicial and sovereign immunity and lack of jurisdiction. Calton appeals the decision

of the district court.

II. Statement of Facts

Sharon Keller is the Presiding Judge of the Court of Criminal Appeals. Terrie

Livingston is the Chief Justice of the Second Court of Appeals. John Cayce is a

former justice on that court. Louis Sturns is the Presiding Judge of the 213th District

Court. Bob Gill is a former district court judge. Defendant Judges are sued in their

official capacity (CR. 197). On May 20, 2014, Calton was convicted of a attempted

murder and sentenced to life imprisonment by the 213th District Court of Tarrant

County. (CR. 17-18). The Second District Court of Appeals, Ft. Worth, Texas

affirmed his conviction in 2005 (CR. 17-18). He asserted in his Petition that

Defendant/Appellee Court Reporter Steve Schiller failed to provide him with a

complete appellate record compromising his right to due process and ability to

effectively challenge his conviction on appeal (CR. 199).1

Calton ‘s suit against the Judges are for acts taken by them while disposing of

a case in which Plaintiff was a criminal defendant and appellant. The Judges moved

to dismiss the claims against them on the basis of judicial and sovereign immunity

which was granted by the District Court on May 21, 2014 (CR. 40).

1
The district court granted co-appellee Steve Schiller’s Chapter 14 Tex. Civ. Prac.
& Rem. Code Motion to Dismiss on June 1, 2015 (CR. 450).
2
A. Appellee Judges’ Response to Appellant’s Issue No. 5:
The trial court did not abuse its discretion by denying leave to file
appellant’s Ninth Amended Complaint.

Appellant’s brief at page 45 claims that he tendered his 9th Amended Complaint

for filing on May 21, 2015, a year after the district court dismissed his suit against the

Judges. He argues that this was error as to co-defendant/appellee Schiller but does

not argue that it was error as to the Appellee Judges and provides no authority

supporting an argument that it is an abuse of discretion for a trial court to deny leave

to amend, filed one year after the Court dismissed the defendants from the suit.

Appellant’s brief does not explain how the 9th Amended Complaint stated a

claim against appellee Judges or defeats their judicial immunity. Arguments not

raised or briefed are deemed waived. In re Estate of Curtis, Deceased, 465 S.W.3d

357, 379 (Tex.App.—Texarkana 2015, pet. dism'd). (“The Texas Rules of Appellate

Procedure require an appellant to provide ‘a clear and concise argument for the

contentions made, with appropriate citations to authorities and to the record.’ See

Tex. R. App. P. 38.1(i). ‘Bare assertions of error, without argument or authority,

waive error.’”).

B. Appellee Judges’ Response to Appellant’s issues No. 4 and 6:
The trial court correctly granted Appellee Judges’ Motion to Dismiss.

Appellant’s brief at page 49 argues that “Judicial immunity is not a bar to

prospective injunctive relief against a judicial officer...” citing Pulliam v. Allen, 466

U.S. 522, 542-544 (1984).
3
 The only relief that appears to have been sought against appellees Sharon

Keller, the Presiding Judge of the Court of Criminal Appeals, Terrie Livingston, the

Chief Justice of the Second Court of Appeals, John Cayce, a former justice on that

court, Louis Sturns, the Presiding Judge of the 213th District Court and Bob Gill, a

former district court judge is in the Eighth Amended Complaint, CR. 268-269:

IX Prayer For Relief
...

(2) Enter an injunction that order the Plaintiff to to
receive the out-of time-Appeal in accordance with the Tex.
R. App. P. that were in place at the time time (sic)
Plaintiffs initial Appeal in 2004 and 2005 (sic) It should be
further ordered that the out-of-Time-Appeal should
comport to the demands of the 14th Amendment.

...

(5) order such Additional relief, both general and
special, legal and equitable, to which Calton may justly be
entitled to including but not limited to crafting the
equitable Injunctive and/or Injunction orders that will
afford Calton to receive the complete and sufficient Record
on Appeal. Plaintiff is to be provided at state expense. And
the appointment of counsel on Appeal and the court
ordered subsequent out-of time-Appeal to utilize said
record of sufficient completeness.

Neither former Second Court of Appeals Justice John Cayce nor Bob Gill, a

former district court judge currently serve on the respective courts. An order

enjoining them to require the items specified in the Eighth Amended Complaint

4
would be ineffectual as they are no longer in an official position so as to be able to

implement any of the orders sought by Calton. They may be dismissed form this suit

on this ground alone. Okpalobi v. Foster, 244 F.3d 405, 421, 423 (5th Cir. 2001).

Texas law holds that “judges acting in their official judicial capacity have

immunity from liability and suit for judicial acts performed within the scope of their

jurisdiction.” Twilligear v. Carrell, 148 S.W.3d 502, 504 (Tex. App.—Houston [14th

Dist. 2004, pet. denied), citing, Dallas County v. Halsey, 87 S.W.3d 553, 554 (Tex.

2002). “This immunity extends to actions that are done in error, maliciously, and

even in excess of the judge’s authority.” Id., citing, Stump v. Sparkman, 435 U.S.

349, 356-57 (1978). The immunity is overcome “only for actions that are: (1) non-

judicial, i.e., not taken in the judge’s official capacity; or (2) taken in the complete

absence of all jurisdiction.” Id, citing, Mireles v. Waco, 502 U.S. 9 (1991). “Whether

an act is judicial (or non-judicial) for this purpose is determined by the nature of the

act, i.e., whether it is a function normally performed by a judge, as contrasted from

other administrative, legislative, or executive acts that simply happen to be done by

judges.” Id., citing, Forrester v. White, 484 U.S. 219 (1988). Under Texas law,

“judicial acts include those performed by judges in adjudicating, or otherwise

exercising their judicial authority over, proceedings pending in their courts.” Id.,

citing, Mireles, 502 U.S. at 13.

5
 In the Eighth Amended Complaint, Calton sued these judicial officers based

on actions/omissions allegedly taken by the judges or their court in Plaintiff’s

underlying criminal case-a collateral attack on prior judicial rulings. A suit

challenging a criminal conviction may not be brought until and unless that conviction

has been set aside.2

While “judicial immunity is not a bar to prospective injunctive relief against

a judicial officer acting in a judicial capacity or to attorney’s fees, for obtaining such

relief,” Twillinger, 148 S.W. 3d at 502, 504, f.n. 8, (Tex. App.-Houston [14th Dist.]

2004, pet. denied) citing, Pulliam v. Allen, 466 U.S. 522, 542-44 (1984)(emphasis

original), injunctions may not be issued by a district court in the role of a super

appellate court adjudicating the legality of decisions of the Court of Appeals, the

Court of Criminal Appeals or another district judge. The District Court did not have

authority to sit as an appellate court in the underlying action, to waive or alter

appellate time tables, appoint Calton appellate counsel, order the disregard of the

Texas Rules of Appellate Procedure or in any other way second guess, review or alter

decisions made by the Court of Appeals, Court of Criminal Appeals or another

2

Heck v. Humphrey, 512 U.S. 477 (1994). (civil rights claim that implies the invalidity
of his conviction must show it has been reversed, expunged or otherwise
invalidated.); Vargas v. Texas Dept. of Criminal Justice, 2012 WL 5974078 *3 (Tex.
App.-Austin,2012, no pet.) (An inmate cannot bring a civil action for damages that
challenge the lawfulness of his conviction or confinement.)

6
district judge. Moreover, the relief requested by the Eighth Amended Complaint

cannot be afforded by Judge Keller or Justice Livingston, neither of which can issue

decisions individually without a majority of the fellow judicial officers also joining

in any decisions.

The Texas Supreme Court has made it clear that “a declaratory judgment is

appropriate only if a justiciable controversy exists as to the rights and status of the

parties and the controversy will be resolved by the declaration sought.” Bonham

State Bank v. Beadle, 907 S.W.2d 465, 467 (Tex. 1995). There was no justiciable

controversy in this case because the district court lacked jurisdiction to order

appellate and district court judges to suspend appellate deadlines, vacate their prior

rulings, appoint Calton an attorney, suspend the Texas Rules of Appellate Procedure

or order judicial officers to perform their duties in conformance with the directives

of a district judge. The Eighth Amended Complaint failed to establish a case or

controversy sufficient to give the district court jurisdiction over other district and

appellate court judges acting in their official capacity. Without the redress ability

elements of standing, a district court’s ruling would be an advisory opinion barred by

federal law, the Eleventh Amendment, Article III, U.S. Constitution and Texas law.

City of Los Angeles v. Lyons, 461 U.S. 95, 112-113 (1983);” Puerto Rico Aqueduct

& Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. at 146, 113 S.Ct. at 689 (1993);

7
Okpalobi, 244 F.3d at 425-426, citing Lujan v. Defenders of Wildlife, 504 U.S. 555,

560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); McCarthy ex rel. Travis v. Hawkins,

381 F.3d 407, 412, reh’g denied, 391 F.3d 676; (5th Cir. 2004) (citing Cozzo v.

Tangipahoa Parish Council–President Gov’t, 279 F.3d 273, 280 (5th Cir. 2002).

Texas law, which tracks federal law on this issue holds that an allegation of

past misconduct alone is not a substitute for the existence of a justiciable controversy

nor does it authorize a state court to issue an advisory opinion. Di Portanova v.

Monroe, 229 S.W.3d 324, 330 (Tex. App.-Houston [1st Dist.] 2006, pet. den.) (If a

justiciable controversy does not exist, the trial court must dismiss the case for lack of

subject-matter jurisdiction.); Texas DPS v. Moore, 985 S.W.2d 149, 153 (Tex. App.–

Austin 1998, no pet.) (“A justiciable controversy must be distinguished from an

advisory opinion, which is prohibited under both the Texas and federal constitutions.

A judgment under the UDJA [Ch. 37 TEX. CIV. PRAC. & REM. CODE. Declaratory

Judgments] depends on a finding that the issues are not hypothetical or contingent,

and the questions presented must resolve an actual controversy.”). The absence in a

statute of the express prerequisites of equitable relief does not negate such

requirements. Town of Palm Valley v. Johnson, 87 S.W.3d 110, 111 (Tex. 2001)

(“Although...65.011(1) [TEX. CIV. PRAC. & REM. CODE - Injunction] does not

expressly make the lack of an adequate legal remedy a prerequisite for injunctive

8
relief, this requirement of equity continues. The statute does not permit injunctive

relief without the showing of irreparable harm otherwise required by equity.”).

Conjectural or speculative events will not support a claim for injunctive relief as such

claim is not justiciable under either Texas injunction statutes or the Uniform

Declaratory Judgment Act [65.011, 37.003 TEX. CIV. PRAC. & REM. CODE.]. St. Paul

Fire & Mar. Ins. Co. v. Texas Workers’ Comp. Comm’n. 945 S.W.2d 886, 888-89

(Tex. App. – Austin 1997, no writ).

To be entitled to injunctive relief, plaintiffs “...must show that harm is

imminent. They must also establish that this imminent harm will be irreparable if the

injunction is not issued.” Operation Rescue v. Planned Parenthood, 937 S.W.2d 60,

71-72 (Tex. App. – Houston [14th Dist.] 1996), aff’d as modified, 975 S.W.2d 546

(Tex. 1998). “The UDJA [Ch. 37 TEX. CIV. PRAC. & REM. CODE.] is ‘merely a

procedural device for deciding cases already within the court’s jurisdiction.’ Texas

Ass’n of Business v. Texas Air Control Board, 852 S.W.2d 440, 444 (Tex. 1993). The

UDJA does not extend a court’s jurisdiction, and a litigant’s request for declaratory

relief does not alter a suit’s underlying nature.” Koch v. Booth, 273 S.W.3d 451 (Tex.

App. – Austin 2008, pet. den.) citing TNRCC v. IT-Davy, 74 S.W.3d 849, 855 (Tex.

2002). The Complaint makes no allegation sufficient to support equitable relief

under Texas law.

9
 The United States Supreme Court has made it clear that there are limitations

on the availability of equitable relief against a judge in his official capacity:

The limitations already imposed by the requirements for
obtaining equitable relief against any defendant — a
showing of an inadequate remedy at law and of a serious
risk of irreparable harm, severely curtail the risk that
judges will be harassed and their independence
compromised.

Pulliam, 104 S.Ct. at 1978. Adams v. McIlhany, 593 F. Supp. 1025, 1032 (N.D. Tex.

1984).

The Eighth Amended Complaint made no showing of an inadequate remedy at

law or a showing of a serious risk of irreparable harm. Any harm or prejudice in the

procedure resulting in the compromise of Calton’s appeal is properly directed to the

Court of Appeals and the Court of Criminal Appeals, through the appellate process

with the Court acting as a body and litigated in accordance with the Texas Rules of

Appellate Procedure. The appellate process and procedure in its resolution of an

individual case, cannot be challenged by suing individual judicial officers, even when

the Court, acting as a body, issues arguably erroneous judicial decisions . Calton’s

request for equitable relief should was properly dismissed on the basis of judicial

immunity and for lack of subject matter jurisdiction.

Instructive in this regard is Smith v. 241st Dist. Ct. of Smith Cnty., No.

03-13-00719-CV, 2015 WL 1611703 *2-3 (Tex. App. - Austin Apr. 9, 2015, no pet.).

10
In that case, Smith sought injunctive and declaratory relief for violations of “due

course of law and the constitution of the United States.”, declarations that his

constitutional rights were violated in the underlying criminal proceedings against

him, an injunction requiring the District Courts to order the remand of his criminal

case and to set aside the judgment “as being void for state and federal constitutional

violations in criminal proceeding” and an injunction requiring the District Court to

admit that Smith's constitutional rights were violated in the criminal proceedings.

The Court of Appeals concluded that Smith's claims for injunctive and

declaratory relief were based on past actions, and made retrospective claims and

therefore not actionable, citing Smith v. District Attorney Office for Wood Cnty., No.

03–13–00220–CV, 2014 WL 5420536, at *2–3 (Tex. App.–Austin Oct. 24, 2014, pet.

denied) (alleged claims for declaratory and injunctive relief based on past acts did

not invoke ultra vires claim); Delk v. Lehmberg, No. 03–12–00678–CV, 2014 WL

1910314, at *3 (Tex. App.–Austin May 9, 2014, no pet.); Roy v. Shannon, No.

02–13–00238–CV, 2014WL 4105271, at *3 (Tex. App.–Fort Worth August 21, 2014,

no pet.) (upholding dismissal of inmate's suit against judge and district attorney and

explaining that ultra vires exception to immunity does not permit relief for acts and

omissions already committed).

11
 CONCLUSION

Calton’s appellate brief provides no authority supporting the reversal of the

District Court’s Order dismissing the suit against appellees’ Sharon Keller,

Presiding Judge of the Court of Criminal Appeals, Terrie Livingston, Chief Justice

of the Second Court of Appeals, John Cayce, a former justice on that court, Louis

Sturns, Presiding Judge of the 213th District Court and Bob Gill, a former district

court judge. Judicial and sovereign immunity and the absence of a justiciable

controversy bar a district court suit against judicial officers seeking an injunction

requiring them to perform their judicial duties in a manner prescribed by a district

court. The district court lacked jurisdiction to order other courts to suspend the Texas

Rules of Appellate Procedure, require the Court of Criminal Appeals or the Court of

Appeals to waive deadlines and appellate time tables, appoint Calton an appellate

lawyer or in any other way direct the performance of individual Judges and Justices’

judicial duties. Accordingly, the district court’s decision should be affirmed.

Respectfully submitted,

KEN PAXTON
Attorney General of Texas

CHARLES E. ROY
First Assistant Attorney General

JAMES E. DAVIS
Deputy Attorney General for Civil Litigation

12
 KAREN D. MATLOCK
Assistant Attorney General
Chief, Law Enforcement Defense Division

/s/ Demetri Anastasiadis
DEMETRI ANASTASIADIS
Assistant Attorney General
Attorney-In-Charge
Texas State Bar No. 01164480
Demetri.Anastasiadis@texasattorneygeneral.gov

Law Enforcement Defense Division
P.O. Box 12548, Capitol Station
Austin, Texas 78711
(512) 463-2080 / Fax (512) 936-2109

ATTORNEYS FOR DEFENDANTS/APPELLEES
SHARON KELLER , JOHN CAYCE, BOB GILL
AND LOUIS STURNS

NOTICE OF ELECTRONIC FILING

I, DEMETRI ANASTASIADIS, Assistant Attorney General of Texas, do

hereby certify that I have electronically submitted for filing a true and correct copy

of the above and foregoing in accordance with File & Serve Xpress the E-filing

service provider for the Court of Appeals Sixth Judicial District, Texarkana, Texas,

on this the 15th day of December 2015.

/s/ Demetri Anastasiadis
DEMETRI ANASTASIADIS
Assistant Attorney General

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 CERTIFICATE OF SERVICE

I, DEMETRI ANASTASIADIS, Assistant Attorney General of Texas, do

hereby certify that a copy of the above and foregoing Brief of Appellees’ Sharon

Keller, Terry Livingston, John Cayse, Bob Gill and Louis Sturns’ Brief has been

served by placing the same in the United States Postal Service, postage prepaid, on

this the 15th day of December, 2015, addressed to:

Allen “F” Calton, TDCJ No. 1123880
TDCJ - Stiles Unit
3060 FM 3514
Beaumont, Texas 77705
Appearing Pro se

/s/ Demetri Anastasiadis
DEMETRI ANASTASIADIS
Assistant Attorney General

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