ACCEPTED
03-16-00545-CV
13918619
THIRD COURT OF APPEALS
AUSTIN, TEXAS
11/22/2016 8:39:19 AM
JEFFREY D. KYLE
CLERK
No. 03-16-00545-CV
FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
COURT OF APPEALS FOR THE THIRD JUDICIAL DISTRICT
11/22/2016 8:39:19 AM
AUSTIN, TEXAS JEFFREY D. KYLE
Clerk
ALEJOS PEREZ,
PLAINTIFF-APPELLANT
VS.
FORT WORTH POLICE DEPARTMENT,
TEXAS DEPARTMENT OF PUBLIC SAFETY CRIME LABORATORY,
TARRANT COUNTY AND J. R. MOLINA,
DEFENDANTS-APPELLEES
ON APPEAL FROM THE 345TH DISTRICT COURT
TRAVIS COUNTY, TEXAS
BRIEF OF APPELLEE CITY OF FORT WORTH, TEXAS
LAETITIA COLEMAN BROWN
Senior Assistant City Attorney
State Bar No. 00792417
laetitia.brown@fortworthtexas.gov
Office of the City Attorney
1000 Throckmorton Street
Fort Worth, Texas 76102-6311
817.392.7600
817.392.8359 Facsimile
Attorneys for Appellee City of Fort Worth
IDENTITY OF PARTIES AND COUNSEL
Appellee City of Fort Worth certifies that the persons identified below are
a complete list of the parties, attorneys, and any other person who has any interest
in the outcome of this lawsuit:
PRO SE PLAINTIFF / APPELLANT:
Alejos A. Perez TDCJ #00535652
TDCJ - Clements Unit
9601 Spur 591
Amarillo, Texas 79107
STUART JENKINS, DIRECTOR OF TEXAS BOARDS OF PARDONS AND
PAROLES:
Stuart Jenkins was Director of the Parole Division of the Texas Department of
Criminal Justice until he retired from that position in August, 2016. See
https://www.tdcj.state.tx.us/connections/MayJune2016/Images/MayJun2016_agen
cy_jenkins.pdf. Appellant attempted to name Stuart Jenkins as a “plaintiff” in the
proceeding in the district court. Appellant has not shown his authority to sue on
behalf of the Director of the Parole Division of the Texas Department of Criminal
Justice. Stuart Jenkins did not appear in person or by counsel or participate in the
proceeding in the district court.
DEFENDANT / APPELLEE:
Tarrant County, Texas
COUNSEL FOR APPELLEE TARRANT COUNTY:
Russell A. Friemel
Assistant Criminal District Attorney
Tarrant County, Texas
State Bar No. 07473500
Tim Curry Criminal Justice Center
401 West Belknap Street, 9th Floor
Fort Worth, Texas 76196
Email: RAFRIEMEL@tarrantcountytx.gov
Tel: 817-884-1233; Fax: 817-884-1675
DEFENDANT / APPELLEE:
City of Fort Worth misnomered as City of Fort Worth Police Department
i
COUNSEL FOR APPELLEE CITY OF FORT WORTH:
Gerald Pruitt
Deputy City Attorney
State Bar No. 16369200
Email: gerald.pruitt@fortworthtexas.gov
Laetitia Coleman Brown
Senior Assistant City Attorney
State Bar No. 00792417
Email: laetitia.brown@fortworthtexas.gov
Office of the City Attorney
1000 Throckmorton Street
Fort Worth, Texas 76102-6311
Tel: 817-392-7600; FAX: 817-392-8359
DEFENDANT / APPELLEE:
J. R. MOLINA
COUNSEL FOR APPELLEE J. R. MOLINA:
J. R. Molina, Attorney
State Bar No. 14256500
Email: jrmolinalaw@gmail.com
1301 N. Houston Street
Fort Worth, Texas 76164
Tel: 817-624-4700; FAX: 817-624-9434
DEFENDANT:
TEXAS DEPARTMENT OF PUBLIC SAFETY CRIME LABORATORY
COUNSEL FOR TEXAS DEPARTMENT OF PUBLIC SAFETY CRIME
LABORATORY:
Christopher Lee Lindsey
Assistant Attorney General
State Bar No. 24065628
Email: christopher.lindsey@texasattorneygeneral.gov
Texas Attorney General’s Office
P.O. Box 12548, Capitol Station
Austin, Texas 78711
Tel: 512-463-2080; FAX: 512-936-2109
ii
STATEMENT REGARDING ORAL ARGUMENT
Appellee City of Fort Worth contends that the relevant law in this area is
well-settled and the factual background is not complicated. Appellee therefore
does not believe that oral argument is necessary or would significantly assist the
Court.
iii
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ...................................................... .i
STATEMENT REGARDING ORAL ARGUMENT........................................ ..iii
TABLE OF CONTENTS .................................................................................... ..iv
INDEX OF AUTHORITIES.................................................................................. v
I. STATEMENT OF THE CASE ................................................................. 1
II. ISSUE PRESENTED ............................................................................... 2
III. STATEMENT OF FACTS ...................................................................... 2
IV. SUMMARY OF CITY OF FORT WORTH’S ARGUMENT ................. 5
V. CITY OF FORT WORTH’S ARGUMENT AND AUTHORITIES ......... 9
A. Standard of Review ........................................................................ 9
B. Lack of Subject Matter Jurisdiction ............................................. 10
C. Governmental Immunity under State Law ................................... 14
D. Prosecution and Parole Decision Not City Functions................... 17
E. Eligibility for Parole (Mandatory Supervision Release) .............. 21
F. No Constitutional Right to Release ............................................... 24
G. No Damages Recoverable by Appellant......................................... 26
H. Declaratory Judgment Unavailable ............................................... 28
I. Proper Venue ................................................................................ 33
J. Designation of Parole Division Director as a Plaintiff ................ 34
VI. CONCLUSION AND PRAYER............................................................... 36
CERTIFICATE OF COMPLIANCE ................................................................... 39
CERTIFICATE OF SERVICE ......................................................................... 40
APPENDIX ....................................................................................................... 42
iv
INDEX OF AUTHORITIES
Page(s)
Federal Cases
Coleman v. Dretke,
409 F.3d 665 (5th Cir. 2005) (per curiam) ............................................................ 20
Esteves v. Brock,
106 F.3d 674 (5th Cir. 1997) ............................................................................. 8, 17
Heck v. Humphrey,
512 U.S. 477, 114 S.Ct. 2364 (1994) .............................................................. 11, 12
Imbler v. Pachtman,
424 U.S. 409, 96 S.Ct. 984 (1976) ........................................................................ 18
Monell v. Department of Social Services,
436 U.S. 658, 98 S.Ct. 2018 (1978) ...................................................................... 11
State Cases
In re A.D.D.,
974 S.W.2d 299 (Tex. App. –San Antonio 1998, no pet.) .................................... 12
Alfonso v. Skadden,
251 S.W.3d 52 (Tex. 2008) ................................................................................... 10
Anthony v. Owens,
2009 WL 4250762 (Tex. App.–Houston [14th Dist.] July 7, 2009, no
pet.) .............................................................................................................. 9, 24, 25
Bacon v. Tex. Historical Comm’n,
411 S.W.3d 161 (Tex. App.—Austin 2013, no pet.).................................. 8, 15, 18
In re Barnes,
127 S.W.3d 843 (Tex. App.–San Antonio 2003, orig. proceeding) ...................... 12
Bonham State Bank v. Beadle,
907 S.W.2d 465 (Tex. 1995) ................................................................................. 33
v
Boykin v. Tauss,
2016 WL 743423 (Tex. App.–Houston [1st Dist.] Feb. 25, 2016, no
pet.) ........................................................................................................................ 23
Cain v. Tex. Bd. of Pardons and Paroles,
104 S.W.3d 215 (Tex. App.–Austin 2003, no pet.)..................................... 8, 19, 23
Charleston v. Pate,
194 S.W.3d 89 (Tex. App.–Texarkana 2006, no pet.) ...................................... 8, 18
Chenault v. Phillips,
914 S.W.2d 140 (Tex. 1996) ................................................................................. 11
City of Beaumont v. Bouillion,
896 S.W.2d 143 (Tex. 1995) ................................................................................. 11
City of Galveston v. State,
217 S.W.3d 466 (Tex. 2007) ................................................................................. 15
City of Hempstead v. Kmiec,
902 S.W.2d 118 (Tex. App.–Houston [1st Dist.] 1995, no writ) ...................... 7, 16
City of Houston v. Williams,
216 S.W.3d 827 (Tex. 2007) ................................................................................. 11
City of North Richland Hills v. Home Town Urban Partners, Ltd.,
340 S.W.3d 900 (Tex. App.–Fort Worth 2011, no pet.) ....................................... 37
City of Tyler v. Likes,
962 S.W.2d 489 (Tex. 1997) ................................................................................. 27
Clawson v. Wharton County,
941 S.W.2d 267 (Tex. App.–Corpus Christi 1996, writ den.) .............................. 19
CSR Ltd. v. Link,
925 S.W.2d 591 (Tex. 1996) ................................................................................. 12
Dakil v. Lege,
408 S.W.3d 9, 2012 WL 5247300 (Tex. App.–El Paso 2012, no pet.) ................. 36
Dallas County MHMR v. Bossley,
968 S.W.2d 339 (Tex. 1998) ................................................................................. 15
vi
Dallas County v. Harper,
913 S.W.2d 207 (Tex. 1995) ................................................................................. 16
In re Datamark, Inc.,
296 S.W.3d 614 (Tex. App.–El Paso 2009, no. pet.) ............................................ 10
Dubai Petroleum Co. v. Kazi,
12 S.W.3d 71 (Tex. 2000) ..................................................................................... 12
Font v. Carr,
867 S.W.2d 873 (Tex. App.–Houston [1st Dist.] 1993, writ dism’d
w.o.j.) ..................................................................................................................... 18
Ex parte Geiken,
28 S.W.3d 553 (Tex. Crim. App. 2000) ............................................................ 9, 26
Hamilton v. Pechacek,
319 S.W.3d 801 (Tex. App.–Fort Worth 2010, no pet.) ......................................... 3
Hamilton v. Williams,
298 S.W.3d 334 (Tex. App.–Fort Worth 2009, pet. denied)................................. 29
Hills v. State,
2011 WL 5343690 (Tex. App.–Austin Nov. 04, 2011, no pet.) ........................... 26
Ex parte Jeremy Lee Acuna,
2012 WL 77219 (Ct. Crim. App. 2012) ................................................................ 26
Johnson v. Thaler,
2011 WL 1833138 (Tex. App.–Austin May 12, 2011, no pet.)(mem.
op., not designated for publication) ................................................................. 14, 37
Laubach v. State Bar of Texas,
2000 WL 1675701 (Tex. App.–Austin Nov. 9, 2000, no pet.) ............................ 16
Lentworth v. Trahan,
981 S.W.2d 720 (Tex. App.–Houston [1st Dist.] 1998, no pet.)............................. 3
Lewis v. Marina Bay Trucks, Inc.,
2007 WL 900785 (Tex. App. –Houston [14th Dist.] Mar. 27, 2007,
no pet.) ..................................................................................................................... 1
Luxenberg v. Marshall,
835 S.W.2d 136 (Tex. App.–Dallas 1992, no pet.) ............................................... 10
vii
Martin v. State Bd. of Crim. Justice,
60 S.W.3d 226 (Tex. App.–Corpus Christi 2001, no pet.) .................................... 11
Martinez v. Thaler,
931 S.W.2d 45 (Tex. App.–Houston [14th Dist.] 1996, writ denied) ..................... 4
Miles v. Perry,
2009 WL 2567914 (Tex. App.–Austin Aug. 21, 2009, pet. denied)(mem.
op., not designated for publication) ....................................................................... 28
Miller v. Curry,
625 S.W.2d 84 (Tex. App.–Fort Worth 1981, writ ref’d n.r.e.) ............................ 18
Nabelek v. Garrett,
2003 WL 21710243 (Tex. App.–Houston [14th Dist.] July 24, 2003,
pet. denied) (mem. op.).......................................................................................... 33
Nelson v. SCI Texas Funeral Services, Inc.,
2016 WL 368437 (Tex. App.–Eastland Jan. 29, 2016, no pet.)(not
designated for publication) .................................................................................... 27
Powell v. Stover,
165 S.W.3d 322 (Tex. 2005) ................................................................................. 12
Rhey v. Redic,
408 S.W.3d 440 (Tex. App.–El Paso 2013, no pet.) ............................................. 35
Santex Roofing & Sheet Metal, Inc. v. Venture Steel, Inc.,
737 S.W.2d 55 (Tex. App.-San Antonio 1987, no writ) ....................................... 31
Scott v. Macha,
2005 WL 375289 (Tex. App.–Fort Worth, Feb. 17, 2005, reh.
denied) (not designated for publication) ................................................................. 9
State v. N.R.J.,
453 S.W.3d 76 (Tex. App.–Fort Worth 2014, rev. den.) ........................................ 2
Tex. Ass’n of Bus. v. Tex. Air Control Bd.,
852 S.W.2d 440 (Tex. 1993) ........................................................................... 13, 28
Tex. Dep’t of Crim. Justice v. Miller,
51 S.W.3d 583 (Tex. 2001) ................................................................................... 15
viii
Tex. Dep’t of Parks & Wildlife v. Miranda,
133 S.W.3d 217 (Tex. 2004) ..................................................................... 12, 32, 37
Texas Youth Com’n v. Garza,
2011 WL 2937431 (Tex. App.–Corpus Christi–Edinburg July 11, 2011,
no. pet.)(mem. op., not designated for publication) .............................................. 27
Thomas v. Texas Dept. of Criminal Justice, Inst. Div.,
848 S.W.2d 797 (Tex. App.—Houston [14th Dist.] 1993, writ
denied) ..................................................................................................................... 4
Thomas v. Wichita Gen. Hosp.,
952 S.W.2d 936 (Tex. App. –Fort Worth 1997, pet. denied).............................. 3, 9
Thompson v. Aliseda,
2009 WL 200994 (Tex. App.–Corpus Christi-Edinburg Jan. 29,
2009, rev. den.) .................................................................................................. 7, 13
Univ. of Tex. Med. Branch v. York,
871 S.W.2d 175 (Tex. 1994) ............................................................................... 7, 8
Univ. of Tex. Sw. Med. Ctr. at Dallas v. Loutzenhiser,
140 S.W.3d 351 (Tex. 2004) ................................................................................. 10
Vargas v. Tex. Dep’t. of Criminal Justice,
2012 WL 5974078 (Tex. App.- Austin Nov. 30, 2012, pet. denied) ........ 11, 12, 14
Villarreal v. Harris County,
226 S.W.3d 537 (Tex. App.-Houston [1st Dist.] 2006, no pet.) ........................... 32
Williams Farms Produce Sales, Inc. v. R & G Produce Co.,
443 S.W.3d 250 (Tex. App.–Corpus Christi 2014, no pet.) .................................. 20
Wornick Co. v. Casas,
856 S.W.2d 732 (Tex. 1993) ........................................................................... 26, 27
ix
Federal Statutes
42 U. S.C. § 1983.................................................................................................. 11, 37
State Statutes
Tex. Civ. Prac. & Rem. Code Ann. § 14.001, et seq. ....................................per curiam
Tex. Civ. Prac. & Rem. Code Ann. § 14.001(1) ........................................................ 33
Tex. Civ. Prac. & Rem. Code Ann. §§ 14.001-.014..................................................... 3
Tex. Civ. Prac. & Rem. Code Ann. § 14.002(a)................................................. 4, 9, 33
Tex. Civ. Prac. & Rem. Code Ann. § 14.003 ............................................................. 33
Tex. Civ. Prac. & Rem. Code Ann. § 14.003(a)..................................................... 4, 33
Tex. Civ. Prac. & Rem. Code Ann. § 14.003(a)(2) ...................................................... 3
Tex. Civ. Prac. & Rem. Code Ann. § 14.003(a)(2), (b)(1)-(2) .................................. 33
Tex. Civ. Prac. & Rem. Code Ann. § 14.003(b)(1)-(4)................................................ 3
Tex. Civ. Prac. & Rem. Code Ann. § 14.003(c)........................................................... 3
Tex. Civ. Prac. & Rem. Code Ann. § 15.002 ....................................................... 33, 34
Tex. Civ. Prac. & Rem. Code Ann. § 37.001-.011................................................. 6, 28
Tex. Civ. Prac. & Rem. Code Ann. § 37.002(b) ........................................................ 10
Tex. Civ. Prac. & Rem. Code Ann. § 101.001, et seq. ................................. 6, 7, 15, 27
Tex. Civ. Prac. & Rem. Code Ann. § 101.021 ........................................... 7, 14, 15, 16
Tex. Civ. Prac. & Rem. Code Ann. § 101.024 ........................................................... 16
Tex. Civ. Prac. & Rem. Code Ann. § 101.057 ....................................................... 7, 16
Tex. Civ. Prac. & Rem. Code Ann. § 101.057(2) .................................................. 7, 16
Tex. Civ. Prac. & Rem. Code Ann. § 101.102 ........................................................... 34
x
Tex. Civ. Prac. & Rem. Code Ann. § 101.102(a)....................................................... 34
Tex. Code Crim. Proc. Ann. art. 42.12 ........................................................... 23, 24, 25
Tex. Code Crim. Proc. Ann. art. 42.12, Sect. 3 .............................................. 22, 23, 24
Tex. Code Crim. Proc. Ann. art. 42.12, Sect. 3g(a)(2) ..................................... 8, 22, 24
Tex. Code Crim. Proc. Ann. art. 11.07 ................................................... 7, 9, 13, 14, 26
Tex. Code Crim. Proc. Ann. art. 11.07(b) .................................................................. 13
Tex. Gov’t Code Ann. § 508.044(a)(1) ...................................................................... 23
Tex. Gov’t Code Ann. § 508.044(b) ....................................................................... 8, 19
Tex. Gov’t Code Ann. § 508.044(d) ........................................................................... 19
Tex. Gov’t Code Ann. § 508.0441 ....................................................................... 19, 20
Tex. Gov’t Code Ann. § 508.141 ............................................................................... 19
Tex. Gov’t Code Ann. § 508.144(a) ........................................................................... 19
Tex. Gov’t Code Ann. § 508.145 ............................................................................... 23
Tex. Gov’t Code Ann. § 508.145(d)(1) ............................................................ 8, 23, 24
Tex. Gov’t Code Ann. § 508.145(d)(1),(d)(2)...................................................... 25, 26
Tex. Gov’t Code Ann. § 508.147 ......................................................................... 21, 22
Tex. Gov’t Code Ann. § 508.149 ..................................................................... 8, 22, 23
Tex. Gov’t Code Ann. § 508.149(a) ................................................................. 9, 21, 25
Tex. Penal Code Ann. § 12.45 ...................................................................................... 2
Tex. Penal Code Ann. § 12.45(a) ................................................................................. 2
Tex. Penal Code Ann. § 19.02 ........................................................................ 22, 23, 25
xi
Rules
Tex. R. Civ. P. 21a ...................................................................................................... 29
Tex. R. Civ. P. 25 ................................................................................................. 29, 30
Tex. R. Civ. P. 26 ................................................................................................. 29, 30
Tex. R. Civ. P. 45 ................................................................................................. 29, 30
Tex. R. Civ. P. 47 ..................................................................................... 29, 30, 31, 35
Tex. R. Civ. P. 79 ....................................................................................................... 35
Tex. R. Civ. P. 85 ........................................................................................... 31, 31, 32
Tex. R. Civ. P. 166a(b) ............................................................................................... 32
Other Authorities
Texas Department of Criminal Justice Website Information:
http://www.tdcj.state.tx.us/bpp/policies_directives/policies_directives.html
(Last accessed on 11/7/2016) ................................................................................ 20
http://www.tdcj.state.tx.us/bpp/what_is_parole/parole.html
(Last accessed 11/7/2016) ..................................................................................... 20
https://www.tdcj.state.tx.us/bpp/ (Last accessed 11/7/2016) .................................... 20
https://www.tdcj.state.tx.us/connections/MayJune2016/Images/MayJun2
016_agency_jenkins.pdf (Last accessed 11/7/2016) ............................................ 35
https://www.tdcj.state.tx.us/divisions/ogc/index.html
(Last accessed 11/7/2016) ..................................................................................... 36
https://www.tdcj.state.tx.us/divisions/parole/(Last accessed 11/7/2016)................... 35
http://www.tdcj.state.tx.us/bpp/publications/PIT_eng.pdf
(Last accessed 11/7/2016) ....................................................................................... 5
https://offender.tdcj.texas.gov/OffenderSearch/index.jsp
(Last accessed 11/7/2016) ....................................................................................... 5
xii
I. STATEMENT OF THE CASE
The City of Fort Worth, Texas, an appellee in this cause, requests that the Court
affirm dismissal of Appellant’s claims against the City of Fort Worth pursuant to TEX.
CIV. PRAC. & REM. CODE, Chapter 14 (“INMATE LITIGATION”), Sec. 14.001,
et seq., for the reasons stated below, and respectfully shows the Court the following:
Appellant’s “Petition For Declaratory Judgment,” filed March 16, 2016 in Case
No. D-1-GN-16-001165, in the 345th Judicial District, of Travis County, Texas, is
vague and conclusory but essentially claims that Appellant was denied parole because
he was wrongfully convicted or denied release on parole due to records/documents
allegedly being altered or denied to him or other procedural error by the defendants.
CR 6, 11, 12. Appellant’s Petition also sought compensatory and punitive damages
and declaratory judgment due to the alleged “breach of duty of ordinary care” and
denial of equal protection (discrimination/“racism”) by the defendants. CR 12, 13,
14. Appellees Tarrant County, City of Fort Worth and J. R. Molina filed motions to
dismiss in this case pursuant to Chapter 14, of the Texas Civil Practice and Remedies
Code. 1 CR 125, 170, 229. The district court granted the motions. CR 332, 333, 334.
1 The Texas Attorney General’s Amicus Curiae Advisory relating to the insufficiency of service on
the Defendant Texas Department of Public Safety Crime Laboratory was filed in the district court
on June 6, 2016. CR 261. Subsequently, the district court granted the motions to dismiss of the
other defendants. Lewis v. Marina Bay Trucks, Inc., 2007 WL 900785, at *Footnote 2 (Tex.App.-
Houston [14th Dist.] Mar. 27, 2007, no pet.)(“… unserved party is considered to have been nonsuited
without prejudice” if court disposes of claims against all parties except unserved party).
BRIEF OF APPELLEE CITY OF FORT WORTH 1
This appeal followed.
II. ISSUE PRESENTED
THE TRIAL COURT PROPERLY GRANTED CITY OF FORT WORTH’S
MOTION TO DISMISS PURSUANT TO CHAPTER 14 OF THE TEXAS
CIVIL PRACTICE AND REMEDIES CODE AND DISMISSED
APPELLANT’S CLAIMS FOR THE REASON THAT APPELLANT MAY
NOT SUE THE CITY OF FORT WORTH TO CHALLENGE HIS
CRIMINAL CONVICTION OR THE DURATION OF HIS PRISON
CONFINEMENT.
III. STATEMENT OF FACTS
Appellant was convicted of murder in Case No. 0366865, State of Texas v.
Alejos Perez, in the Criminal District Court Number One of Tarrant County, Texas
and sentenced to life in prison on December 14, 1989. CR 146. A “Plea in Bar,”
pursuant to Section 12.45, Texas Penal Code, was entered in Case No. 0373871, in
Criminal District Court No. 1, Tarrant County, Texas, entitled State of Texas vs. Alejos
Perez, in which Plaintiff was also charged with a separate offense of attempted
murder. 2 CR 148, 149. Plaintiff is presently an inmate of the Institutional Division
of the Texas Department of Criminal Justice.
Chapter 14 of the Texas Civil Practice and Remedies Code governs inmate
2 The Court in State v. N.R.J., 453 S.W.3d 76, 79 (Tex.App.–Fort Worth 2014, rev. den.) stated:
Texas Penal Code section 12.45 provides that during a sentencing hearing and with the
State's consent, a defendant may admit his guilt of an unadjudicated offense and request
that the court take the offense into account in determining the sentence for the offense of
which he stands adjudged guilty. Tex. Penal Code Ann. § 12.45(a). If the trial court takes
into account an admitted offense under section 12.45, prosecution for that offense is barred.
Id. § 12.45(c).
BRIEF OF APPELLEE CITY OF FORT WORTH 2
litigation. See Tex. Civ. Prac. & Rem. Code Ann. §§ 14.001-.014. When an inmate
files an unsworn declaration of inability to pay, the trial court has broad discretion to
dismiss the suit if the suit is frivolous or malicious. Id. § 14.003(a)(2); Lentworth v.
Trahan, 981 S.W.2d 720, 722 (Tex. App.-Houston [1st Dist.] 1998, no pet.). In
determining whether a claim is frivolous or malicious, a 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.; Tex. Civ.
Prac. & Rem. Code Ann. § 14.003(b)(1)-(4).
An inmate bringing a claim subject to Chapter 14 has no right to an oral hearing
on a motion to dismiss. Thomas v. Wichita Gen. Hosp., 952 S.W.2d 936, 938 (Tex.
App.–Fort Worth 1997, pet. denied) (holding that a trial court's determination whether
to hold a hearing on a Chapter 14 motion to dismiss is discretionary). Based on Section
14.003(c), it is within the trial court's discretion to hear a motion to dismiss by
submission only, without conducting an oral or evidentiary hearing. Hamilton v.
Pechacek, 319 S.W.3d 801, 809 (Tex. App.–Fort Worth 2010, no pet.).
Appellant’s Affidavit of Indigence was filed on March 16, 2016. CR 20.
Defendant City of Fort Worth was served with citation in this case on May 11, 2016.
CR 164 - 166. TEX. CIV. PRAC. & REM. CODE, Chapter 14 (Inmate Litigation), §
BRIEF OF APPELLEE CITY OF FORT WORTH 3
14.002 (Scope of Chapter) provides:
(a) This chapter applies only to an action, including an appeal or original
proceeding, brought by an inmate in a district, county, justice of the peace, or
small claims court or an appellate court, including the supreme court or the
court of criminal appeals, in which an affidavit or unsworn declaration of
inability to pay costs is filed by the inmate.
TEX. CIV. PRAC. & REM. CODE, § 14.003 (Dismissal of Claim) also states:
(a) A court may dismiss a claim, either before or after service of
process, if the court finds that:
(1) the allegation of poverty in the affidavit or unsworn declaration is
false;
(2) the claim is frivolous or malicious; or
(3) the inmate filed an affidavit or unsworn declaration required by this
chapter that the inmate knew was false.
Trial courts have broad discretion in dismissing in forma pauperis suits they find to
be frivolous. Martinez v. Thaler, 931 S.W.2d 45, 46 (Tex. App.–Houston [14th Dist.]
1996, writ denied); Thomas v. Texas Dept. of Criminal Justice, Inst. Div., 848 S.W.2d
797, 798 (Tex. App.–Houston [14th Dist.] 1993, writ denied).
The City of Fort Worth included in support of its motion to dismiss and
incorporated by reference, the documents attached as Exhibits A through K, including
the following:
Case No. 0366865, in Criminal District Court No. 1, Tarrant County, Texas,
entitled The State of Texas vs. Alejos Perez
a. Indictment, filed 5/18/1989 (Exhibit A) CR 246.
b. Plea In Bar, filed 12/13/1989 (Exhibit B) CR 247.
c. Waiver of Jury Trial/Agreement to Stipulate Testimony, filed 12/13/89
(Exhibit C) CR 248.
BRIEF OF APPELLEE CITY OF FORT WORTH 4
d. Plea Agreement, filed 12/13/1989 (Exhibit D) CR 249.
e. Certificate of Proceedings, dated 12/13/1989 (Exhibit E) CR250.
f. Judgment on Plea of Guilty or Nolo Contendere Before Court, dated
12/14/1989 (Exhibit F) CR 251.
Case No. 0373871, in Criminal District Court No. 1, Tarrant County, Texas,
entitled The State of Texas vs. Alejos Perez
g. Indictment, filed 5/18/1989 (Exhibit G) CR 252.
h. Certificate of Proceedings, dated 12/13/1989 (Exhibit H) CR 253.
i. Judgment on Plea In Bar, dated 12/14/1989 (Exhibit I) CR 254.
The District Judge signed Items b, c, e, f, h and i. Appellant signed Items b, c and d.
Texas Department of Criminal Justice – Institutional Division
j. Offender Information Details3 (Exhibit J) CR 255.
Texas Board of Pardons & Parole; Texas Dept. of Criminal Justice – Parole
Division
k. Parole & Mandatory Supervision Eligibility Chart 4 (Rev. 12/1/2004)
(Exhibit K) CR 259.
The district court held a hearing on July 26, 2016 and after hearing arguments from
Appellant and counsel for Appellees, dismissed Appellant’s claims. CR 333.
Appellant also filed an Affidavit of Indigence, claiming inability to pay costs of
appeal. CR 348.
IV. SUMMARY OF CITY OF FORT WORTH’S ARGUMENT
3 Source: TDCJ-ID Offender Information Search; Link:
https://offender.tdcj.texas.gov/OffenderSearch/index.jsp (Last accessed 11/7/2016.)
4 Source: Parole In Texas (Booklet, pub’d 2005); Link:
http://www.tdcj.state.tx.us/bpp/publications/PIT_eng.pdf (Last accessed 11/7/2016.)
BRIEF OF APPELLEE CITY OF FORT WORTH 5
Based on lack of subject matter jurisdiction, the District Court properly
dismissed this suit brought for damages and for declaratory relief filed by Appellant
Alejos Perez. Appellant, a state prisoner, claimed, as the basis of his suit, that
the Appellees caused his wrongful imprisonment and /or denial of his release from
prison. Texas Civil Practices & Remedies Code, Chapter 14 (“Inmate Litigation”)
authorizes review and dismissal of pro se in forma pauperis suits by district courts
prior to service of process. The District Court correctly dismissed Appellant’s
suit, based on lack of jurisdiction, since the Texas Tort Claims Act, Chapter 101 of
the Texas Civil Practice & Remedies Code, provides only a limited waiver of
governmental immunity but:
1) Does not provide a statutory basis for Appellant to challenge his criminal
conviction in a civil court,
2) Does not allow claims for intentional torts,
3) Limits recovery to personal injury damages for physical injury caused by use
or misuse of tangible personal property. Information or records manually
or electronically recorded or prepared do not constitute tangible personal
property.
The Texas Declaratory Judgment Act does not itself create jurisdiction for a district
court where jurisdiction does not otherwise exist. Appellant’s conviction was
affirmed on appeal and has not been set aside or reversed.
Plaintiff was convicted of murder in Case No. 0366865, State of Texas v. Alejos
Perez, in the Criminal District Court Number One of Tarrant County, Texas and
sentenced to life in prison on December 14, 1989. Attached to City of Fort Worth’s
BRIEF OF APPELLEE CITY OF FORT WORTH 6
Motion To Dismiss, as Exhibits A through K, were documents relevant to his
conviction and confinement and parole procedures. CR 246 - 260. City of Fort
Worth’s Motion To Dismiss under Chapter 14, TEX. CIV. PRAC. & REM. CODE,
was based on the following grounds:
1. Lack of Subject Matter Jurisdiction. Plaintiff’s Petition For Declaratory
Judgment was filed March 16, 2016. Texas courts hold that a writ of habeas corpus
is the “exclusive remedy” for addressing alleged irregularities occurring during
parole proceedings. Thompson v. Aliseda, 2009 WL 200994 at *2 - 3 (Tex. App.–
Corpus Christi-Edinburg Jan. 29, 2009, rev. den.). Texas Code of Criminal
Procedure, Art. 11.07 (“Procedure after conviction without death penalty”)
“establishes the procedures for an application for writ of habeas corpus in which
the applicant seeks relief from a felony judgment imposing a penalty other than
death.”
2. Governmental Immunity Bars Suit Against City of Fort Worth. The Texas
Tort Claims Act (codified in Chapter 101 of the Texas Civil Practice & Remedies
Code), § 101.021 (“Governmental Liability”) provides a limited waiver of
governmental immunity:
A governmental unit in the state is liable for:
...
(2) personal injury and death so caused by a condition or use of
tangible personal or real property if the governmental unit would, were it a
private person, be liable to the claimant according to Texas law.
Claims for false arrest and imprisonment are intentional torts. See City of
Hempstead v. Kmiec, 902 S.W.2d 118, 122 (Tex. App.–Houston [1st Dist.] 1995,
no writ) (recognizing false arrest and malicious prosecution as intentional torts).
Section 101.057 of the TTCA provides: “This chapter does not apply to a claim ...
arising out of assault, battery, false imprisonment, or any other intentional tort . .
.” Tex. Civ. Prac. & Rem. Code Ann. § 101.057(2) (West 2011). Additionally,
the Texas Supreme Court has held that information “is an abstract concept, lacking
corporeal, physical, or palpable qualities.” Univ. of Tex. Med. Branch v. York,
871 S.W.2d 175, 179 (Tex. 1994). The fact that information is recorded in writing
does not render it “tangible.” Id. Thus, the Legislature has not eliminated
BRIEF OF APPELLEE CITY OF FORT WORTH 7
governmental immunity for damages resulting from the misuse of information,
even if that information is in writing or in the form of documents or stored data.
Id.
3. Prosecution and Parole Decision Not City Functions. City of Fort Worth, as
a local governmental entity, has no involvement in the prosecution of criminal
cases by and in the name of the State of Texas or in the criminal case in which
Plaintiff was convicted in 1989. A City prosecutor is a state, not county, official
when prosecuting criminal cases or engaging in prosecutorial duties. Esteves v.
Brock, 106 F.3d 674, 678 (5th Cir. 1997). Any claim against a city prosecutor in
an official capacity is also barred by sovereign immunity. Bacon v. Tex. Historical
Comm'n, 411 S.W.3d 161, 172 (Tex. App.—Austin 2013, no pet.). Claims against
a prosecutor in an individual (personal) capacity are barred by prosecutorial
immunity. Charleston v. Pate, 194 S.W.3d 89, 90 (Tex. App.-Texarkana 2006,
no pet.).
City of Fort Worth, as a local governmental entity and not a state agency,
likewise has no involvement in determining whether state prisoners are granted
parole. The Texas Board of Pardons and Parole, a state agency, administers the
parole process for state prison inmates. Cain v. Tex. Bd. of Pardons and Paroles,
104 S.W.3d 215, 217 (Tex. App.–Austin 2003, no pet.)(“The Board is vested with
the power and duty to determine whether and when an inmate should be released
on parole, conditions of parole, which parolees should be released from
supervision, and whether parole should be continued, modified, or revoked.” Tex.
Gov't Code Ann. § 508.044(b) (West Supp. 2003).”).
4. Eligibility for Parole. An individual convicted of a “3g” offense is not
eligible for “mandatory supervision release” (parole). Tex. Gov’t. Code, §
508.149 (“Inmates Ineligible for Mandatory Supervision”). Because Appellant
was convicted on December 14, 1989 of a murder (Sec. 3(g)(1)(A)) committed on
January 23, 1989 and the Judgment contains an “affirmative finding under Sec.
3g(a)(2)” that Plaintiff used a deadly weapon [firearm] in committing the murder
for which he was convicted and he was sentenced to life in prison, it appears that
he would therefore not be “eligible for release on parole” under Tex. Gov’t. Code,
§ 508.145(d)(1) since he has not served “30 calendar years” on his sentence.
5. No Constitutional Right to Release. The murder conviction for which
Appellant was convicted is a “3g offense.” He is therefore not eligible for
“mandatory supervision” release under Tex. Gov’t. Code, Sec. 508.149(a) and has
BRIEF OF APPELLEE CITY OF FORT WORTH 8
no protectable constitutional liberty interest in being paroled. Anthony v. Owens,
2009 WL 4250762 at *2 (Tex. App. – Houston [14th Dist.] July 7, 2009, no
pet.)(affirming dismissal of an action for declaratory judgment)(“There is no
constitutional or inherent right of a convicted person to be conditionally released
before the expiration of a valid sentence.”) “[T]o the extent a parole decision may
implicate due process rights, . . . remedy is through a post-conviction application
for writ of habeas corpus filed under article 11.07 of the Code of Criminal
Procedure . . . in the court of original conviction . . . .” Ex parte Geiken, 28 S.W.3d
553, 560, 566 (Tex. Crim. App. 2000).
City of Fort Worth’s Motion To Dismiss was procedurally correct and properly granted
for the reasons stated above.
V. CITY OF FORT WORTH’S ARGUMENT AND AUTHORITIES.
City of Fort Worth submits the following reasons for affirming the decision of
the trial court:
A. Standard Of Review. The appropriate standard of review in this case is
set out in Scott v. Macha, No. 2-04-157-CV, 2005 WL 375289, at *1 (Tex. App. -
Fort Worth, Feb. 17, 2005, reh. denied) (not designated for publication):
Chapter 14 applies to a suit brought by an inmate 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). We review a trial
court's dismissal of an inmate's claim under chapter 14 under an abuse of
discretion standard. See Bishop v. Lawson, 131 S.W.3d 571, 574 (Tex.
App.-Fort Worth 2004, pet. denied); Thomas v. Wichita Gen. Hosp., 952
S.W.2d 936, 939 (Tex. App.-Fort Worth 1997, pet. denied). A court abuses
its discretion if it acts without reference to guiding rules or principles. See
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42
(Tex.1985), cert. denied, 476 U.S. 1159, 106 S. Ct. 2279, 90 L.Ed.2d 721
(1986).
Additionally, when a trial court gives an incorrect legal reason for its decision, an
BRIEF OF APPELLEE CITY OF FORT WORTH 9
appellate court may nevertheless uphold the order on any other grounds presented
to the trial court and supported by the record. In re Datamark, Inc., 296 S.W.3d
614, 616 (Tex. App.–El Paso 2009, no. pet.), citing Luxenberg v. Marshall, 835
S.W.2d 136, 141–42 (Tex. App.–Dallas 1992, no pet.). See also Alfonso v.
Skadden, 251 S.W.3d 52, 55 (Tex. 2008) (where record affirmatively reveals
jurisdictional defect, court of appeals cannot assume alternative basis for jurisdiction
exists by indulging presumption that “something omitted from the clerk's record
might have supported jurisdiction”); Univ. of Tex. Sw. Med. Ctr. at Dallas v .
Loutzenhiser, 140 S . W . 3 d 351, 58 (Tex. 2004) (Subject-matter jurisdiction
cannot be waived and can be raised at any time.).
City of Fort Worth moved for dismissal on the grounds listed below under
Sections B - H.
B. Lack of Subject Matter Jurisdiction. Appellant sought declaratory
judgment. The stated purpose of the Texas Declaratory Judgments Act is “to settle and
afford relief from uncertainty and insecurity with respect to rights, status, and other
legal relations.” Tex. Civ. Prac. & Rem. Code Ann. § 37.002(b). The Supreme Court
of Texas has held that the Declaratory Judgment Act is “not a grant of jurisdiction, but
a procedural device for deciding cases already within a court's jurisdiction.” Martin
v. State Bd. of Crim. Justice, 60 S.W.3d 226, 230 (Tex.App.-Corpus Christi 2001, no
pet.), citing Chenault v. Phillips, 914 S.W.2d 140, 141 (Tex. 1996). The Act also does
BRIEF OF APPELLEE CITY OF FORT WORTH 10
not permit an award of damages. See City of Houston v. Williams, 216 S.W.3d 827,
829 (Tex. 2007). Therefore, Plaintiff must seek damages under a different authority.
Texas has no law equivalent to the federal civil rights statute, 42 U. S. Code §
1983, and the Texas Constitution does not create an implied private right of action for
money damages. City of Beaumont v. Bouillion, 896 S.W.2d 143, 147 (Tex. 1995).
Texas common law does not provide a cause of action for damages for the violation
of state constitutional rights. Id. at p. 150. A governmental entity may be liable under
§ 1983 only if the execution of a custom, policy or procedure adopted by the
governmental entity causes a deprivation of a plaintiff’s federal constitutional rights.
Monell v. Department of Social Services, 436 U.S. 658, 690, 98 S.Ct. 2018 (1978).
No policy or procedure of City of Fort Worth is alleged as causing any violation of
Plaintiff’s constitutional rights, including due process or equal protection.
Additionally, Heck v. Humphrey, 512 U.S. 477, 487, 489. 114 S.Ct. 2364, 2372, 2374
(1994) holds that “[a] claim for damages” concerning a conviction or sentence that has
not been so invalidated is not cognizable under § 1983” and the inmate plaintiff's §
1983 claim had not yet arisen because his criminal conviction had not been invalidated.
See also Vargas v. Tex. Dep't. of Criminal Justice, No. 03-12-00119-CV, 2012 WL
5974078, at *3 (Tex. App.—Austin Nov. 30, 2012, pet. denied) (mem. op.) (citing
Heck for the proposition that when a civil suit necessarily implies the invalidity of an
inmate's conviction, it must be dismissed unless the plaintiff can demonstrate that the
BRIEF OF APPELLEE CITY OF FORT WORTH 11
sentence has already been invalidated).
Subject matter jurisdiction is a question of law. Powell v. Stover, 165 S.W.3d
322, 324 (Tex. 2005). “A court must possess both subject matter jurisdiction over a
case and personal jurisdiction over a party to issue a binding judgment.” CSR Ltd. v.
Link, 925 S.W.2d 591, 594 (Tex. 1996). Subject matter jurisdiction refers to the power
of a court to hear a particular type of suit. Id. When an action is grounded in statute,
subject matter jurisdiction must be shown under the applicable statute. Dubai
Petroleum Co. v. Kazi, 12 S.W.3d 71, 75 (Tex. 2000); In re Barnes, 127 S.W.3d 843,
846–47 (Tex. App.-San Antonio 2003, orig. proceeding). “Subject matter jurisdiction
is never presumed and cannot be waived.” Barnes, 127 S.W.3d at 846. Rather, it “
‘exists by operation of law only, and cannot be conferred upon any court by consent
or waiver.’ ” In re A.D.D., 974 S.W.2d 299, 303 (Tex. App.-San Antonio 1998, no
pet.). Governmental immunity from suit defeats a trial court's subject matter
jurisdiction. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225 (Tex.
2004). To invoke the district court's subject matter jurisdiction in this case as to any
claim against City of Fort Worth, Appellant was first required to overcome the City's
governmental immunity. The burden is on the plaintiff to plead facts that affirmatively
demonstrate subject matter jurisdiction. Tex. Ass'n of Bus. v. Tex. Air Control Bd.,
852 S.W.2d 440, 446 (Tex. 1993). Appellant has not shown subject matter
jurisdiction.
BRIEF OF APPELLEE CITY OF FORT WORTH 12
Texas Code of Criminal Procedure, Art. 11.07 (“Procedure after conviction
without death penalty”) “establishes the procedures for an application for writ of
habeas corpus in which the applicant seeks relief from a felony judgment imposing a
penalty other than death.” Art. 11.07, Sec. (b) states (underline added):
An application for writ of habeas corpus filed after final conviction in a felony
case, other than a case in which the death penalty is imposed, must be filed
with the clerk of the court in which the conviction being challenged was
obtained, and the clerk shall assign the application to that court.
Texas courts also hold that a writ of habeas corpus is the “exclusive remedy” for
addressing alleged irregularities occurring during parole proceedings. In Thompson
v. Aliseda, 2009 WL 200994 at *2 - 3 (Tex. App.–Corpus Christi-Edinburg Jan. 29,
2009, rev. den.), the Court stated:
Texas courts have held that a person alleging irregularities occurring during
parole proceedings should raise those issues by way of a post-conviction
application for writ of habeas corpus under article 11.07 of the code of criminal
procedure. See Bd. of Pardons & Paroles v. Court of Appeals for the Eighth
Dist., 910 S.W.2d 481, 484 (Tex.Crim.App.1995); see also Williams v.
Owens, No. 11-06-00184-CV, 2007 Tex.App. LEXIS 6344, at *5, 2007 WL
2284551 (Tex.App.-Eastland Aug. 9, 2007, pet. denied) (mem.op.) (per
curiam) (citing Tex. Code Crim. Proc. Ann. art. 11.07 (Vernon 2005); Bd. of
Pardons & Paroles, 910 S.W.3d at 484). Article 11 .07 of the code of criminal
procedure provides that the Texas Court of Criminal Appeals retains the
exclusive authority to grant relief in such proceedings. See Tex.Code Crim.
Proc. Ann. art. 11 .07, § 3; see also Bd. of Pardons & Paroles, 910 S.W.2d at
484. Because a writ of habeas corpus is the exclusive remedy for addressing
alleged irregularities occurring during parole proceedings, and because
Thompson is essentially challenging the duration of his incarceration, the trial
court did not have jurisdiction to grant Thompson the relief requested in his
original petition.
BRIEF OF APPELLEE CITY OF FORT WORTH 13
In Johnson v. Thaler, 2011 WL 1833138 at *1 (Tex. App. – Austin May 12, 2011, no
pet.), the plaintiff claimed that his parole date was wrong because the trial court’s
judgment did not include a deadly weapon finding and asked the court to order that
his TDCJ records be “adjusted to show his parole date and release date.” The trial
court dismissed Johnson’s claim as frivolous, finding that there was no subject matter
jurisdiction. Id. at 3. The Court of Appeals noted that: “The procedure set forth in
article 11.07 is exclusive, and any other proceeding is void and of no force and effect
in discharging the inmate.” Id. at 2. See also Vargas v. Tex. Dep't of Crim. Justice,
No. 03–12–00119–CV, 2012 WL 5974078 at *3 (Tex. App.–Austin Nov. 30, 2012,
no pet.) (mem. op.) (“… state inmates must use only habeas corpus (or similar state)
remedies when they seek to invalidate the duration of their confinement.”).
C. Governmental Immunity under State Law. City of Fort Worth is immune
from any claim for compensatory or punitive damages by Appellant based on the
doctrine of governmental immunity since immunity from suit for damages is not
waived by TEX. CIV. PRAC. & REM. CODE § 101.021 for the types of claim asserted
by Appellant. Under TEX. CIV. PRAC. & REM. CODE § 101.021, a governmental
entity may be sued only for negligence involving the use or misuse of real or personal
property - not for wrongful conviction or civil rights violations which are considered
intentional torts. Governmental immunity protects local government units, such as
City of Fort Worth, when performing “governmental” functions, which are essentially
BRIEF OF APPELLEE CITY OF FORT WORTH 14
those in which a unit is deemed to be acting as an arm of the State and in the interest
of the general public. City of Galveston v. State, 217 S.W.3d 466, 469 (Tex. 2007).
A waiver of governmental immunity by the Texas Legislature may be by statute but
the Legislature's intent to waive immunity must be expressed in “clear and
unambiguous language.” Bacon v. Texas Historical Comm'n, 411 S.W.3d 161, 173
(Tex. App.—Austin 2013, no pet.)
The Texas Tort Claims Act (“TTCA”), codified in Chapter 101 of the Texas
Civil Practice & Remedies Code, establishes a limited waiver of governmental
immunity and authorizes suits to be brought against governmental units in certain
narrowly-defined circumstances. Tex. Dep't of Crim. Justice v. Miller, 51 S.W.3d 583,
587 (Tex. 2001); see Dallas County MHMR v. Bossley, 968 S.W.2d 339, 341 (Tex.
1998). Texas Civil Practice & Remedies Code, § 101.021 (Governmental Liability)
provides:
A governmental unit in the state is liable for:
...
(2) personal injury and death so caused by a condition or use of tangible
personal or real property if the governmental unit would, were it a private
person, be liable to the claimant according to Texas law.
Claims for false arrest and malicious prosecution are intentional torts. See City of
Hempstead v. Kmiec, 902 S.W.2d 118, 122 (Tex. App.–Houston [1st Dist.] 1995, no
writ) (recognizing false arrest and malicious prosecution as intentional torts). Section
101.057 of the TTCA provides: “This chapter does not apply to a claim ... arising out
BRIEF OF APPELLEE CITY OF FORT WORTH 15
of assault, battery, false imprisonment, or any other intentional tort, . . . .” Tex. Civ.
Prac. & Rem. Code Ann. § 101.057(2) (West 2011). Additionally, the TTCA does not
authorize exemplary (punitive) damages. See Tex. Civ. Prac. & Rem. Code Ann. §
101.024 (West 2011) (“This chapter does not authorize exemplary damages.”).
Appellant has not identified any applicable waiver of immunity or alleged any type of
claim not barred by governmental immunity. In Dallas County v. Harper, 913 S.W.2d
207, 207 - 208 (Tex. 1995), the Texas Supreme Court, in holding that use or misuse
of an expunged indictment was not “tangible personal property,” for purposes of
sovereign immunity waiver under the Tort Claims Act, explained that that “simply
reducing information to writing or paper does not make information ‘tangible
personal property.’” Likewise, in Laubach v. State Bar of Texas, No. 03-00-
00282-CV, 2000 WL 1675701, at *1 (Tex. App. – Austin, Nov. 9, 2000, no pet.),
the Court of Appeals stated:
. . . the Texas Tort Claims Act does not waive immunity for the negligent or
wrongful use of information contained in papers and documents. Dallas
County v. Harper, 913 S.W.2d 207, 207-08 (Tex.1995); York, 871 S.W.2d at
179; DeWitt, 897 S.W.2d at 450-51; Texas Dep't of Human Servs. v.
Benson, 893 S.W.2d 236, 239-40 (Tex. App.-Austin 1995, writ denied);
Texas Dep't of Human Servs. v. Sakil, 25 S.W.3d 22, 25 (Tex. App.-El
Paso 1999, pet. denied); Allen v. City of Midlothian, 927 S.W.2d 316, 322- 23
(Tex. App.-Waco 1996, no writ). Laubach's suit complains that the State
Bar misused information contained in his grievance proceeding. Such
claims do not fall within the limited waiver of immunity contained in the
Texas Tort Claims Act, and his suit is barred by sovereign immunity.
D. Prosecution and Parole Decision Not City Functions. City of Fort Worth,
BRIEF OF APPELLEE CITY OF FORT WORTH 16
as a local governmental entity, has no involvement generally in the prosecution of
felony criminal cases by and in the name of the State of Texas or in the criminal case
for which Appellant was convicted in 1989. A criminal district attorney is a state, not
county or city, official when prosecuting criminal cases or engaging in prosecutorial
duties. In Esteves v. Brock, 106 F.3d 674, 678 (5th Cir. 1997), the Fifth Circuit Court
of Appeals stated the following:
Texas law makes clear, however, that when acting in the prosecutorial
capacity to enforce state penal law, a district attorney is an agent of the state,
not of the county in which the criminal case happens to be prosecuted. “Each
district attorney shall represent the State in all criminal cases in the district
courts of his district and in appeals therefrom....”14 In Echols v. Parker we
found that a Texas district attorney is a state official when instituting criminal
proceedings to enforce state law. A county official “pursues his duties as a
state agent when he is enforcing state law or policy.”15 In Krueger v. Reimer16
we found that the actions of a Texas district attorney within the scope of his
prosecutorial function during a criminal proceeding do not constitute official
policy for which a county can be held liable.
14
Tex. Code Crim. Proc. Ann. art. 2.01; Tex. Const. art. V, § 21;
Tex.Gov't Code Ann. § 43.180(b) (“The district attorney shall represent the
state in criminal cases pending in the district and inferior courts of the
county.”).
15
909 F.2d at 801.
16
66 F.3d 75 (5th Cir.1995).
Any claim against a criminal district attorney or an assistant criminal district attorney
in an official capacity is also barred by sovereign immunity. In Bacon v. Tex.
Historical Comm'n, 411 S.W.3d 161, 172 (Tex. App.—Austin 2013, no pet.), the Court
noted:
BRIEF OF APPELLEE CITY OF FORT WORTH 17
Absent Legislative waiver, sovereign immunity deprives Texas courts of
subject-matter jurisdiction over any suit against the State or its agencies or
subdivisions. See, e.g., Texas Dep't of Transp. v. Sefzik, 355 S.W.3d 618, 620–
21 (Tex.2011) (per curiam). That same immunity generally extends to Texas
state officials who are sued in their official capacities because that “is merely
‘another way of pleading an action against the entity of which [the official] is
an agent.’ ” City of El Paso v. Heinrich, 284 S.W.3d 366, 373 (Tex.2009).
Claims against a prosecutor in his or her individual (personal) capacity are
generally barred by prosecutorial immunity. “District attorneys and other prosecutors
are absolutely immune from liability when performing their prosecutorial functions.”
Charleston v. Pate, 194 S.W.3d 89, 90 (Tex. App.-Texarkana 2006, no pet.) (citing
Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984 (1976); Font v. Carr, 867 S.W.2d 873
(Tex.App.-Houston [1st Dist.] 1993, writ dism'd w.o.j.); Miller v. Curry, 625 S.W.2d
84, 86-87 (Tex. App.-Fort Worth 1981, writ ref'd n.r.e.)). “Absolute immunity will
shelter a prosecutor even should he act maliciously, wantonly, or negligently. Imbler,
424 U.S. at 416, 96 S.Ct. at 988 (prosecutor was absolutely immune for knowingly
eliciting perjured testimony); . . .” Clawson v. Wharton County, 941 S.W.2d 267, 272
(Tex. App.-Corpus Christi 1996, writ den.).
City of Fort Worth, as a local governmental entity and not a state agency,
likewise has no involvement in determining whether state prisoners are granted parole.
The Texas Board of Pardons and Parole, a state agency, administers the parole process
for state prison inmates. In Cain v. Tex. Bd. of Pardons and Paroles, 104 S.W.3d 215,
217 (Tex. App.–Austin 2003, no pet.), the Court noted the following:
BRIEF OF APPELLEE CITY OF FORT WORTH 18
The Board is vested with the power and duty to determine whether and when
an inmate should be released on parole, conditions of parole, which parolees
should be released from supervision, and whether parole should be continued,
modified, or revoked. Tex. Gov't Code Ann. § 508.044(b) (West Supp.2003).
The Board “may adopt reasonable rules” related to parole eligibility, the
conduct of a parole hearing, or parole conditions. Id. § 508.044(d). The Board
is also to develop guidelines on which to base parole decisions. Id. §
508.144(a) (West 1998).
Texas Government Code §508.141 (Authority to Consider and Order Release on
Parole) states:
(a) A parole panel may consider for release and release on parole an inmate
who:
(1) has been sentenced to a term of imprisonment in the institutional division;
(2) is confined in a penal or correctional institution, including a jail in this
state, a federal correctional institution, or a jail or a correctional institution in
another state; and
(3) is eligible for release on parole.
(b) A parole is issued only on the order of a parole panel.
Texas Government Code, § 508.0441 (Release and Revocation Duties) states:
(a) Board members and parole commissioners shall determine:
(1) which inmates are to be released on parole or mandatory supervision;
(2) conditions of parole or mandatory supervision, including special
conditions;
(3) the modification and withdrawal of conditions of parole or mandatory
supervision;
(4) which releasees may be released from supervision and reporting; and
(5) the continuation, modification, and revocation of parole or mandatory
supervision.
...
(c) The board may adopt reasonable rules as proper or necessary relating to:
(1) the eligibility of an inmate for release on parole or release to mandatory
supervision;
(2) the conduct of a parole or mandatory supervision hearing; or
(3) conditions to be imposed on a releasee.
BRIEF OF APPELLEE CITY OF FORT WORTH 19
The Board’s public website (https://www.tdcj.state.tx.us/bpp/ )5 states:
The Board of Pardons and Paroles decides which eligible offenders to release
on parole or discretionary mandatory supervision, and under what conditions.
The Board uses research-based Parole Guidelines to assess each offender's
likelihood for a successful parole against the risk to society.
See City of Fort Worth’s Appendix (pg. 1) attached hereto. The Board’s website also
states: “Board policies set standards and guidelines for administering the business of
the Board and are adopted by Board vote.” (See website:
http://www.tdcj.state.tx.us/bpp/policies_directives/policies_directives.html.)
Appendix, pg. 2. The Board’s website
(http://www.tdcj.state.tx.us/bpp/what_is_parole/parole.htm)(Appendix, pg. 5)
provides the following explanation of parole and its function:
PAROLE / MANDATORY SUPERVISION INFORMATION
What is Parole?
Parole is the discretionary release of an offender, by a Board of Pardons and
Paroles decision, to serve the remainder of a sentence in the community under
supervision.
Parole is a privilege, not a right.
What is Mandatory Supervision?
Mandatory Supervision is a legislatively mandated release of a prisoner to
parole supervision when the combination of actual calendar time and good
conduct time equal the sentence. Good conduct time is credited to an offender
for participating in work and self-improvement programs.
5 Last accessed 11/15/16. A court may take judicial notice of documents and information on
government websites. Williams Farms Produce Sales, Inc. v. R & G Produce Co., 443 S.W.3d 250,
259 (Tex.App.–Corpus Christi 2014, no pet.); Coleman v. Dretke, 409 F.3d 665, 667 (5th Cir. 2005)
(per curiam) (taking judicial notice of Texas agency's website).
BRIEF OF APPELLEE CITY OF FORT WORTH 20
Not all offenders are eligible. Offenders convicted of offenses listed under
§508.149(a) Government Code, are not eligible. Also, the Board may deny
mandatory release on a case-by-case basis for offenders whose offense date
was on or after September 1, 1996 (Discretionary Mandatory Release).
Updated 01/16/2013
City of Fort Worth, as a local governmental entity, has no authority or
responsibility for or involvement in either prosecutorial functions or parole decisions.
Appellant’s claims against City of Fort Worth have no basis in fact or law and
therefore are frivolous and were correctly dismissed.
E. Eligibility for Parole (Mandatory Supervision Release). After pleading
guilty, Appellant was convicted of murder (offense committed in January, 1989) and
sentenced to life in prison in December, 1989. See Exhibits A – J attached to City of
Fort Worth’s Motion To Dismiss (CR 246 - 256). Texas Government Code § 508.147
(“Release to Mandatory Supervision”) states the following:
(a) Except as provided by Section 508.149, a parole panel shall order the
release of an inmate who is not on parole to mandatory supervision when the
actual calendar time the inmate has served plus any accrued good conduct time
equals the term to which the inmate was sentenced.
(b) An inmate released to mandatory supervision is considered to be released
on parole.
Texas Government Code, § 508.149 (“Inmates Ineligible for Mandatory Supervision”)
provides:
(a) An inmate may not be released to mandatory supervision if the inmate is
serving a sentence for or has been previously convicted of:
(1) an offense for which the judgment contains an affirmative finding under
BRIEF OF APPELLEE CITY OF FORT WORTH 21
Section 3g(a)(2), Article 42.12, Code of Criminal Procedure;
(2) a first degree felony or a second degree felony under Section 19.02, Penal
Code; .…
Texas Penal Code, § 19.02 (“Murder”), in relevant part, states:
(b) A person commits an offense if he:
(1) intentionally or knowingly causes the death of an individual;
(2) intends to cause serious bodily injury and commits an act clearly dangerous
to human life that causes the death of an individual; or
(3) commits or attempts to commit a felony, other than manslaughter, and in
the course of and in furtherance of the commission or attempt, or in immediate
flight from the commission or attempt, he commits or attempts to commit an
act clearly dangerous to human life that causes the death of an individual.
Texas Code of Criminal Procedure, Art. 42.12, Section 3, identifies “3g offenses”
and states:
Sec. 3. (a) A judge, in the best interest of justice, the public, and the defendant,
after conviction or a plea of guilty or nolo contendere, may suspend the
imposition of the sentence and place the defendant on community supervision
or impose a fine applicable to the offense and place the defendant on
community supervision.
Secs. 3a to 3f. [Blank].
Sec. 3g. (a) The provisions of Section 3 of this article do not apply:
(1) to a defendant adjudged guilty of an offense under:
(A) Section 19.02, Penal Code (Murder); . . . .
(2) to a defendant when it is shown that a deadly weapon as defined in Section
1.07, Penal Code, was used or exhibited during the commission of a felony
offense or during immediate flight therefrom, and that the defendant used or
exhibited the deadly weapon or was a party to the offense and knew that a
deadly weapon would be used or exhibited. On an affirmative finding under
this subdivision, the trial court shall enter the finding in the judgment of the
court. On an affirmative finding that the deadly weapon was a firearm, the
court shall enter that finding in its judgment.
Like community supervision (probation), an individual convicted of a “3g” offenses
BRIEF OF APPELLEE CITY OF FORT WORTH 22
is not eligible for “mandatory supervision release” (parole). See above: Tex. Gov’t.
Code, § 508.149 (“Inmates Ineligible for Mandatory Supervision”). In Boykin v.
Tauss, 2016 WL 743423, *2+, Tex. App.-Houston [1st Dist.] Feb. 25, 2016, no pet.),
the Court explained Government Code § 508.145 (“Eligibility for Release on Parole;
Computation of Parole Eligibility Date”) as follows:
The statute governing parole for “3g” crimes does not require that the Board
grant the inmate parole at that first opportunity. See Tex. Gov't Code Ann. §
508.145(d)(1) (“An inmate serving a sentence for offense described by Section
3g ... is not eligible for release on parole until the inmate's actual calendar time
served ... equals one-half of the sentence....”). “[P]arole is a privilege not a
right to which an inmate is entitled once he or she accrues a set amount of
time-served credit.” Cain v. Tex. Bd. of Pardons and Paroles, 104 S.W.3d 215,
218 (Tex.App.–Austin 2003, no pet.). “When the inmate accrues sufficient
time-served credit, the Board determines whether to grant or deny parole.”
Cain, 104 S.W.3d at 217; see Tex. Gov't Code Ann. § 508.044(a)(1) (West
2012) (“Board members ... shall determine which inmates are to be released
on parole....”); . . .
Texas Government Code, § 508.145(d)(1) however states:
(d)(1) An inmate serving a sentence for an offense described by Section
3g(a)(1)(A), (C), (D), (E), (F), (G), (H), (I), (J), (K), (L), (M), or (N), Article
42.12, Code of Criminal Procedure, an offense for which the judgment
contains an affirmative finding under Section 3g(a)(2) of that article, an
offense under Section 20A.03, Penal Code, or an offense under Section 71.02
or 71.023, Penal Code, is not eligible for release on parole until the inmate's
actual calendar time served, without consideration of good conduct time,
equals one-half of the sentence or 30 calendar years, whichever is less, but in
no event is the inmate eligible for release on parole in less than two calendar
years.
(Bold/underline added.) Because Appellant was convicted on December 14, 1989 of
a murder (Sec. 3(g)(1)(A)) committed on January 23, 1989, the Judgment contains an
BRIEF OF APPELLEE CITY OF FORT WORTH 23
“affirmative finding under Sec. 3g(a)(2)” that Appellant used a deadly weapon
[firearm] in committing the murder for which he was convicted and he was sentenced
to life in prison, he would therefore not be “eligible for release on parole” since he has
not served “30 calendar years” on his sentence. Section 508.145(d)(1) does not
establish a mandatory date that the Board is required to release him on parole but only
establishes the earliest date on which he may be eligible for release on parole. Due to
the type of his offense, Perez is not entitled to parole.
F. No Constitutional Right To Release. In Anthony v. Owens, 2009 WL
4250762 at *2 (Tex. App. – Houston [14th Dist.] July 7, 2009, no pet.), in affirming
dismissal of an action for declaratory judgment, the Court of Appeals stated:
There is no constitutional or inherent right of a convicted person to be
conditionally released before the expiration of a valid sentence. Greenholtz v.
Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1, 7, 99
S.Ct. 2100, 60 L.Ed.2d 668 (1979). Once a person has been convicted of an
offense, he has no constitutional right to be released on parole before
completion of his sentence. Clark v. State, 754 S.W.2d 499, 501 (Tex.App.-
Fort Worth 1988, no pet.). The decision to release or not release an inmate,
even though he is eligible for parole, remains within the sound discretion of
the Board of Pardons and Paroles and is not the basis for a due process
challenge. See Nabelek, 2003 WL 1738392, at *1; see also Ex parte Geiken,
28 S.W.3d 553, 556 (Tex.Crim.App.2000).
...
To bring a due process claim, the plaintiff must assert a liberty or property
interest that is protected by the Fourteenth Amendment to the United States
Constitution. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 569-
70, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Concerned Cmty. Involved Dev.,
Inc. v. City of Houston, 209 S.W.3d 666, 671 (Tex.App.-Houston [14th Dist.]
2006, pet. denied). The Court of Criminal Appeals has determined that there
is a protectable liberty interest in mandatory supervision release under section
BRIEF OF APPELLEE CITY OF FORT WORTH 24
508.149 of the Government Code. Geiken, 38 S.W.3d at 559. However,
inmates convicted of certain offenses, including capital murder, are not eligible
for mandatory supervision release. Tex. Gov't Code Ann. § 508.149(a)
(Vernon Supp.2008).
Like the capital murder conviction involved in Anthony, the murder for which
Appellant was convicted is also a “3g offense” and Appellant is therefore not eligible
for “mandatory supervision” release under Sec. 508.149(a) 6 and has no protectable
constitutional liberty interest in being paroled. See Exhibit K (Parole & Mandatory
Supervision Eligibility Chart) to City of Fort Worth’s Motion to Dismiss (CR 259).
Under § 508.145(d)(1),(2), an inmate with a “3g” conviction “is not eligible for
release on parole until the inmate's actual calendar time served, without consideration
of good conduct time, equals one-half of the sentence or 30 calendar years, whichever
is less . . . .” For inmates who are eligible for discretionary or mandatory parole but
are denied parole by the Board, “the parole panel's decision to deny release is not
subject to judicial review.” Ex parte Geiken, 28 S.W.3d 553, 560, 566 (Tex. Crim.
App. 2000). While “the procedures implemented by the Board when reviewing an
eligible inmate’s release are reviewable” and the inmate is entitled to “some minimal
6 Texas Government Code, § 508.149 (“Inmates Ineligible for Mandatory Supervision”):
(a) An inmate may not be released to mandatory supervision if the inmate is serving a
sentence for or has been previously convicted of:
(1) an offense for which the judgment contains an affirmative finding [deadly weapon used]
under Section 3g(a)(2), Article 42.12, Code of Criminal Procedure;
(2) a first degree felony or a second degree felony under Section 19.02 [murder], Penal Code; .
...
BRIEF OF APPELLEE CITY OF FORT WORTH 25
due process” (reasonable notice and opportunity to be heard), “to the extent a parole
decision may implicate due process rights, . . . remedy is through a post-conviction
application for writ of habeas corpus filed under article 11.07 of the Code of Criminal
Procedure . . . in the court of original conviction . . . .” Id. at 560, Hills v. State, 2011
WL 5343690 at *1 (Tex. App.-Austin Nov. 04, 2011, no pet.); Ex parte Jeremy Lee
Acuna, 2012 WL 77219 at *1 (Ct. Crim. App. 2012).
G. No Damages Recoverable by Appellant. As explained above, Mr. Perez
has no property damage. He claims no physical (bodily) injury. Plaintiff’s Petition
(pg. 5) states: “... information from Defendants … over and over ... deny plaintiff …
release on parole ...” (CR 10) and defendants “… intentionally (illegally) altered …
files, records, reports and indictment … to conceal the illegal manufacture [of]
indictment ….” (CR 11). In Wornick Co. v. Casas, 856 S.W.2d 732, 734 (Tex.
1993), the Texas Supreme Court stated:
We recently recognized the tort of intentional infliction of emotional
distress, adopting the elements set forth in Restatement (Second) of Torts §
46 (1965). Twyman v. Twyman, 855 S.W.2d 619 (Tex.1993). To recover
under this tort, the plaintiff must prove that 1) the defendant acted
intentionally or recklessly, 2) the conduct was “extreme and outrageous,”
3) the actions of the defendant caused the plaintiff emotional distress, and
4) the resulting emotional distress was severe. Id. at 621.
In Texas Youth Com'n v. Garza, No. 13–11–00091–CV, 2011 WL 2937431, at *2
(Tex. App.–Corpus Christi–Edinburg July 11, 2011, no. pet.)(mem. op., not
designated for publication), the Court noted the following:
BRIEF OF APPELLEE CITY OF FORT WORTH 26
The TTCA expressly retains the State's sovereign immunity for claims
“arising out of assault, battery, false imprisonment, or any other intentional
tort,” including claims for intentional infliction of emotional distress. Id. §
101.057(2); see Nueces County v. Ferguson, 97 S.W.3d 205, 223
(Tex.App.-Corpus Christi 2002, no pet.) (“[T]he Texas Tort Claims Act
specifically preserves sovereign immunity as to intentional torts.... Thus
sovereign immunity is not waived for a claim of intentional infliction of
emotional distress.”).
The TTCA clearly does not allow recovery for intentional infliction of emotional
damages. 7
H. Declaratory Judgment Unavailable. Appellant’s Petition (CR 6 – 19)
seemingly requested the trial court to grant “declaratory judgment relief” as to (1)
procedural matters related to his conviction, (2) compensatory and punitive monetary
damages, and (3) denial of his release from prison (parole). In Miles v. Perry, No. 03-
07-00023-CV, 2009 WL 2567914, at *2 (Tex. App.–Austin Aug. 21, 2009, pet.
denied)(mem. op., not designated for publication), the court of appeals citing Texas
Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993), found that
7The Eastland Court of Appeals, in Nelson v. SCI Texas Funeral Services, Inc., No. 11–13–
00334–CV, 2016 WL 368437 (Tex. App. – Eastland, Jan. 29, 2016, no pet.)(not designated for
publication) recently noted:
The Texas Supreme Court revisited a claim of negligent infliction of mental anguish in
City of Tyler v. Likes, 962 S.W.2d 489, 492–93 (Tex.1997). Likes involved a suit
against a municipality for flood damage. 962 S.W.2d at 492. The property owner
sought damages for mental anguish based on flood damage to her home. Id. at 492–
93. The supreme court held that the property owner could not recover damages for
mental anguish arising out of harm to her property. Id. at 493. The court in Likes
expounded upon its earlier holding in Boyles that Texas does not recognize a general
legal duty to avoid negligently inflicting mental anguish. Id. at 494.
BRIEF OF APPELLEE CITY OF FORT WORTH 27
the trial court had no jurisdiction in suit for declaratory judgment to determine that the
statute on which conviction was based was unconstitutional and stated:
The Uniform Declaratory Judgments Act (“the Act”)[Tex. Civ. Prac. &
Rem. Code Ann. §§37.001-.011] is merely a procedural device for
deciding cases already within a court's jurisdiction rather than a legislative
enlargement of a court's power, permitting the rendition of advisory
opinions. Id. The Act does not extend a trial court's jurisdiction, and a
litigant's request for declaratory relief does not confer jurisdiction on a
court or change a suit's underlying nature. Texas Natural Res. Conservation
Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002). Finding that Miles'
petition is, in reality, an application for writ of habeas corpus and that only
the court of criminal appeals has jurisdiction to entertain such an application,
we hold that the district court lacked subject- matter jurisdiction to consider
this matter and that any opinion issued by that court would have been
advisory.
We affirm the court's order granting the plea to the jurisdiction and
dismissing this cause.
Subsequent to and apparently in response to City of Fort Worth’s Motion To
Dismiss8 filed on 6/01/2016 pursuant to TEX. CIV. PRAC. & REM. CODE, Chapter
14 (“INMATE LITIGATION”), Sec. 14.001, et seq., Appellant filed various
documents including:
1) Plaintiff’s Motion And Support of Request for Default Judgment (filed
5/24/2016);
2) Plaintiff’s Motion In Exception To Defendant’s Original Answer (filed
5/31/2016);
3) Plaintiff’s Rejection Of Defendant’s Motion To Dismiss (filed 6/6/2016);
8 This motion may be decided on submission (without hearing). Hamilton v. Williams, 298 S.W.3d
334, 340 (Tex. App.–Fort Worth 2009, pet. denied) (“an inmate who brings a claim falling within
the scope of chapter fourteen has no right to notice of a motion to dismiss, nor to a mandatory
hearing”).
BRIEF OF APPELLEE CITY OF FORT WORTH 28
4) Plaintiff’s (Immunity) Objection To Defendant Tarrant County’s Request
to Dismiss Pursuant to Chapter 14 (filed 6/7/2016).
Document 1 above was received by City of Fort Worth’s attorney of record from
Appellant on 6/7/16. CR 211. Documents 2, 3, and 4 (CR 223, CR 264, CR 266)
were not served on City of Fort Worth’s attorney by Plaintiff as required by Tex. R.
Civ. P., Rule 21a (“Methods of Service”) and copies were requested by counsel from
the Court Clerk. Although it is difficult to understand his arguments, it appears that
Appellant, by the documents listed above, essentially seeks to raise the following
issues:
1. Sufficiency of City of Fort Worth’s Motion To Dismiss as a responsive pleading
under Rules 25, 26, 45, 47, Tex. R. Civ. P. [Plaintiff’s Documents 1 - 4];
2. Proper Venue in this case [Plaintiff’s Document 4];
3. The caption or style of City of Fort Worth’s Motion To Dismiss not showing
Stuart Jenkins, the Director of the Parole Division of the Texas Department of
Criminal Justice, as a plaintiff in this action. [Plaintiff’s Document 4]
City of Fort Worth addressed each of these issues as follows:
1. Sufficiency of City of Fort Worth’s Motion To Dismiss as a responsive
pleading.
In his responses, Appellant refers to Rules 25, 26, 45 and 47, Tex. R. Civ. P.
Rule 25 (entitled “Clerk’s File Docket”) states:
Each clerk shall keep a file docket which shall show in convenient form the
number of the suit, the names of the attorneys, the names of the parties to the
suit, and the nature thereof, and, in brief form, the officers return of process,
and all subsequent proceedings had in the case with the dates thereof.
Rule 26 (entitled “Clerk’s Court Docket”) states:
BRIEF OF APPELLEE CITY OF FORT WORTH 29
Each clerk shall also keep a court docket in a permanent record that shall
include the number of the case, and the names of the parties, the name of the
attorneys, the nature of the action, the pleas, the motions, and the ruling of the
court as made.
Rule 45 (entitled “Definition & System”) states:
Pleadings in the district and county courts shall
(a) be by petition and answer;
(b) consist of a statement in plain and concise language of the plaintiff’s cause
of action or the defendant’s grounds of defense. That an allegation be
evidentiary or be of legal conclusion shall not be grounds for an objection
when fair notice to the opponent is given by the allegations as a whole; and
(c) contain any other matter which may be required by any law or rule
authorizing or regulating any particular action or defense.
...
All pleadings shall be construed so as to do substantial justice.
Rule 47 (entitled “Claims For Relief”) states:
An original pleading which sets forth a claim for relief, whether an original
petition, counterclaim, cross-claim, or third party claim, shall contain:
(a) a short statement of the cause of action sufficient to give fair notice of the
claim involved;
(b) a statement the damages sought are within the jurisdictional limits of the
court; ….
None of the foregoing rules indicates that City of Fort Worth’s Motion To Dismiss was
for any reason insufficient or improper. Tex. R. Civ. P., Rule 85 (entitled “Original
Answer; Contents”) states:
The original answer may consist of motions to transfer venue, pleas to the
jurisdiction, in abatement, or any other dilatory pleas; of special exceptions, of
general denial, and any defense by way of avoidance or estoppel, and it may
present a cross-action, which to that extent will place defendant in the attitude
of a plaintiff. Matters in avoidance and estoppel may be stated together, or in
BRIEF OF APPELLEE CITY OF FORT WORTH 30
several special pleas, each presenting a distinct defense, and numbered so as
to admit of separate issues to be formed on them.
The term “answer” has been construed to mean a “written pleading of some character.”
Santex Roofing & Sheet Metal, Inc. v. Venture Steel, Inc., 737 S.W.2d 55, 56 (Tex.
App.-San Antonio 1987, no writ). Defendant City of Fort Worth filed a motion to
dismiss under Chapter 14 (“Inmate Litigation”), Texas Civil Practices and Remedies
Code, since the statutory procedure established is specifically intended to provide for
“judicial screening” of pro se inmate suits. Other authorized, comparable procedures
include plea to the jurisdiction under Rule 85, Tex. R. Civ. P. (for state negligence/tort
claims) and/or motion for summary judgment under Rule 166a(b), Tex. R. Civ. P. (for
state and federal claims).
A motion to dismiss filed pursuant to Chapter 14, TEX. CIV. PRAC. & REM.
CODE, is effectively a plea to the jurisdiction and constitutes a responsive pleading
under Tex. R. Civ. P., Rule 85 (“Original Answer; Contents”). City of Fort Worth’s
Motion To Dismiss is based, in part, on governmental immunity and lack of subject
matter jurisdiction. In Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217,
226 (Tex. 2004), the Texas Supreme Court stated that: “Sovereign immunity from suit
defeats a trial court's subject matter jurisdiction and thus is properly asserted in a plea
to the jurisdiction.” In Villarreal v. Harris County, 226 S.W.3d 537, 541 (Tex. App.-
Houston [1st Dist.] 2006, no pet.), the Court of Appeals stated the following:
BRIEF OF APPELLEE CITY OF FORT WORTH 31
A plea to the jurisdiction is a dilatory plea that seeks dismissal of a case for
lack of subject matter jurisdiction. Harris County v. Sykes, 136 S.W.3d 635,
638 (Tex. 2004). We review a trial court's ruling on a plea to the jurisdiction
de novo because the question of whether a court has subject matter jurisdiction
is a matter of law. Hoff v. Nueces County, 153 S.W.3d 45, 48 (Tex.2004); Tex.
Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004).
Governmental immunity from suit defeats a trial court's subject matter
jurisdiction and thus is properly asserted in a plea to the jurisdiction.1
Miranda, 133 S.W.3d at 225–26.
1
As the Texas Supreme Court has observed, (1) sovereign immunity
refers to the State's immunity from suit and liability and protects the State
and its divisions, and (2) governmental immunity protects political
subdivisions of the State, including counties, cities, and school districts.
Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n. 3 (Tex.
2003).
A suit brought by an inmate in which the inmate files an affidavit of inability to pay
costs may be dismissed if the trial court finds that the claim is frivolous or malicious,
such as where the claim's realistic chance of success is slight or the claim has no
arguable basis in law. See TEX. CIV. PRAC. & REM. CODE, §§ 14.001(1),
14.002(a), 14.003(a)(2), (b)(1)-(2) (Vernon 2002). Nabelek v. Garrett, 2003 WL
21710243, at *2 (Tex. App.-Houston [14th Dist.] July 24, 2003, pet. denied) (mem.
op.)(“Not only do the conditions for dismissal under section 14.003 not require a
motion to be filed by a defendant, they allow a trial court to dismiss a case before
process has even been served. Tex. Civ. Prac. & Rem. Code Ann. § 14.003(a) .. . .”).
I. Proper Venue. Plaintiff’s (Immunity) Objection To Defendant Tarrant
County’s Request to Dismiss Pursuant to Chapter 14 (filed 6/7/2016) makes reference
to transfer of venue. Plaintiff’s “Petition For Declaratory Judgment” was filed March
BRIEF OF APPELLEE CITY OF FORT WORTH 32
16, 2016. Actions for declaratory judgments are governed by general venue rules for
civil actions. Bonham State Bank v. Beadle, 907 S.W.2d 465 (Tex. 1995). Tex. Civ.
Prac. & Rem. Code Ann. § 15.002 (“Venue: General Rule”) states:
(a) Except as otherwise provided by this subchapter or Subchapter B or C, all
lawsuits shall be brought:
(1) in the county in which all or a substantial part of the events or omissions
giving rise to the claim occurred;
(2) in the county of defendant's residence at the time the cause of action
accrued if defendant is a natural person;
(3) in the county of the defendant's principal office in this state, if the
defendant is not a natural person; or
(4) if Subdivisions (1), (2), and (3) do not apply, in the county in which the
plaintiff resided at the time of the accrual of the cause of action.
(b) For the convenience of the parties and witnesses and in the interest of
justice, a court may transfer an action from a county of proper venue under this
subchapter or Subchapter C to any other county of proper venue on motion of
a defendant filed and served concurrently with or before the filing of the
answer, where the court finds:
(1) maintenance of the action in the county of suit would work an injustice
to the movant considering the movant's economic and personal hardship;
(2) the balance of interests of all the parties predominates in favor of the
action being brought in the other county; and
(3) the transfer of the action would not work an injustice to any other party.
To the extent Appellant seeks to assert any claim for damages, under the Texas Tort
Claims Act (codified in Chapter 101 of the Texas Civil Practice & Remedies Code,),
Section 101.102 states:
(a) A suit under this chapter shall be brought in state court in the county in
which the cause of action or a part of the cause of action arises.
....
BRIEF OF APPELLEE CITY OF FORT WORTH 33
The Defendants did not request or object to transfer of this case from Travis County
to a district court in Tarrant County. Furthermore, Appellant attempted to name a state
agency and a state official as parties.
J. Designation of Parole Division Director as a Plaintiff. Appellant was
apparently attempting to name or designate, as a plaintiff, Stuart Jenkins, who was the
Director of the Parole Division of the Texas Department of Criminal Justice. 9
Appellant has not shown any authority or standing that he possesses or legal or factual
basis permitting him to (1) designate Stuart Jenkins, in an official or personal capacity,
as a plaintiff in this case or (2) bring suit on behalf of the Director of the Parole
Division or the State of Texas. Furthermore, Appellant did not show that the Director
of the Parole Division is a proper or necessary party to this action. The Parole
Division’s website (https://www.tdcj.state.tx.us/divisions/parole/ ) states:
The Parole Division supervises offenders released from prison who are
serving out their sentences in Texas communities. The Division also performs
some pre-release functions by investigating the parole plans proposed by
inmates and by tracking parole eligible cases and submitting them for timely
consideration by the Board of Pardons and Paroles.
The Division does not make release decisions, nor does it decide whose
parole should be revoked or what special conditions should be placed on
releasees. Authority for those decisions rests with the Board of Pardons and
Paroles, but the Division works closely with the Board and provides Board
members with the documentation needed to make informed decisions.
9Pamela Thielke is the current director. See Parole Division’s website:
https://www.tdcj.state.tx.us/divisions/parole/ . Last accessed 11/15/2016. (Appendix, pg. 7)
Stuart Jenkins retired effective August 31, 2016. See:
https://www.tdcj.state.tx.us/connections/MayJune2016/Images/MayJun2016_agency_jenkins.pdf
BRIEF OF APPELLEE CITY OF FORT WORTH 34
(Appendix, pg. 7) Plaintiff is not a parolee and did not allege or demonstrate any
necessary or proper reason for designating Stuart Jenkins as a plaintiff.
Furthermore, Tex. R. Civ. P., Rule 79 (“Petition”) provides that: “The petition
shall state the names of the parties and their residences, if known, together with the
contents prescribed in Rule 47 above.” A plaintiff should identify the true parties. The
question of who are the parties to a case is a legal question determined primarily by
reviewing the pleadings. Rhey v. Redic, 408 S.W.3d 440, 463 (Tex. App.–El Paso
2013, no pet.) A plaintiff must have both standing and capacity to bring suit. Dakil v.
Lege, 408 S.W.3d 9, 2012 WL 5247300 at *2 (Tex. App.–El Paso 2012, no pet.).
Standing focuses on whether a party has a sufficient relationship with the lawsuit so as
to have a justiciable interest in the outcome, whereas capacity is a procedural issue
addressing the personal qualifications of a party to litigate. Dakil, 2012 WL 5247300 at
*1. “A plaintiff has standing when it is personally aggrieved, regardless of whether it is
acting with legal authority; a party has capacity when it has the legal authority to act,
regardless of whether it has a justiciable interest in the controversy.” Dakil, 2012 WL
5247300 at *1. Nothing in Appellant’s pleadings met these requirements as to Stuart
Jenkins, as Parole Division Director. Furthermore, the public access website for the
Office of General Counsel for the Texas Department of Criminal Justice
[https://www.tdcj.state.tx.us/divisions/ogc/index.html) (last accessed 11/7/2016)] states
BRIEF OF APPELLEE CITY OF FORT WORTH 35
that office “provides advice and counsel to the Texas Department of Criminal Justice
(TDCJ) regarding . . . sentence time calculation, parole, and community supervision
matters.” (Appendix, pg. 9) Sharon Felfe Howell is the current TDCJ General Counsel
according to the website. (Appendix, pg. 9)
VI. CONCLUSION AND PRAYER
Appellant’s claims against City of Fort Worth and the other defendants are
frivolous. City of Fort Worth, as a unit of local government, is not responsible for and
has no authority to prosecute felony criminal cases, administer the parole process or
make parole decisions. Prosecution and parole decisions are responsibilities carried
out by state officials acting on behalf of the State of Texas. For the foregoing reasons,
City of Fort Worth requests the Court to affirm dismissal of all claims against City of
Fort Worth.
Mr. Perez seeks to challenge his conviction or denial of parole/release in a
manner not authorized by statute or Texas courts. Texas does not have a state civil
rights action for state law or constitutional violations comparable to 42 U.S. Code
§ 1983 (authorizing suit for intentional torts violating federal constitutional rights).
Johnson v. Thaler, No. 02–10–00435–CV, 2011 WL 1833138, at *2 (Tex. App.
– Fort Worth, May 12, 2011, no pet.)(mem. op., not designated for publication).
“[S]overeign immunity deprives a trial court of subject matter jurisdiction for
lawsuits in which the state or certain governmental units have
BRIEF OF APPELLEE CITY OF FORT WORTH 36
been sued[,] unless the state consents to suit.” City of North Richland Hills v.
Home Town Urban Partners, Ltd., 340 S.W.3d 900, 906 (Tex. App.–Fort Worth,
2011, no pet.), quoting Texas Dept. of Parks and Wildlife v. Miranda, 133 S.W.3d
217, 224 (Tex. 2004). The District Court correctly determined that Appellant had
no claim or cause of action over which jurisdiction could be exercised. Appellant’s
suit for declaratory judgment and/or damages against City of Fort Worth is clearly
barred on multiple grounds.
Appellee City of Fort Worth requests that this Court affirm the trial
court's dismissal of Appellant's claims for the reasons set forth above.
Respectfully submitted,
/s/ Laetitia Coleman Brown
Laetitia Coleman Brown
Senior Assistant City Attorney
State Bar No. 00792417
laetitia.brown@fortworthtexas.gov
Gerald Pruitt
Deputy City Attorney
State Bar No. 16369200
gerald.pruitt@fortworthtexas.gov
Office of the City Attorney
1000 Throckmorton Street
Fort Worth, Texas 76102-6311
817.392.7600
817.392.8359 Facsimile
Attorneys for Defendant/Appellee
City of Fort Worth
BRIEF OF APPELLEE CITY OF FORT WORTH 37
CERTIFICATE OF COMPLIANCE
The undersigned hereby certifies that this document complies with the
margin, spacing, and typeface requirements of Texas Rule of Appellate Procedure
9.4. The undersigned certifies that this document was produced on a computer using
Microsoft Word and contains 10,377 words, as determined by the computer’s
software word-count function, excluding the sections of the document listed in
Texas Rule of Appellate Procedure 9.4(i)(1).
BRIEF OF APPELLEE CITY OF FORT WORTH 38
CERTIFICATE OF SERVICE
I, Laetitia Coleman Brown, do hereby certify that a true and correct copy of the
above and foregoing Brief of Defendant-Appellee City of Fort Worth was served on
the following persons and/or parties, on November 17, 2016, in the manner indicated:
Alejos Perez BY CM/RRR #7015 1520 0002 8614 9087
TDCJ # 00535652
TDCJ - Clements Unit
9601 Spur 591
Amarillo, Texas 79107
APPELLANT / PLAINTIFF PRO SE
J. R. Molina, Attorney BY EMAIL
State Bar No. 14256500
email: jrmolinalaw@gmail.com
1301 N. Houston Street
Fort Worth, Texas 76164
Tel: 817-624-4700; FAX: 817-624-9434
DEFENDANT / APPELLEE PRO SE
Christopher Lee Lindsey BY EMAIL
Assistant Attorney General
State Bar No. 24065628
Email: christopher.lindsey@texasattorneygeneral.gov
P. O. Box 12548, Capitol Station
Austin, Texas 78711
State Bar No. 24065628
Tel: 512-463-2080; FAX: 512-936-2109
COUNSEL FOR TEXAS DEPARTMENT
OF PUBLIC SAFETY CRIME LABORATORY
BRIEF OF APPELLEE CITY OF FORT WORTH 39
Russell A. Friemel BY EMAIL
Assistant Criminal District Attorney
Tarrant County, Texas
State Bar No. 07473500
Tim Curry Criminal Justice Center
401 West Belknap Street, 9th Floor
Fort Worth, Texas 76196
Email: RAFRIEMEL@tarrantcountytx.gov
Tel: 817-884-1233; Fax: 817-884-1675
COUNSEL FOR DEFENDANT / APPELLEE TARRANT COUNTY
BRIEF OF APPELLEE CITY OF FORT WORTH 40
No. 03-16-00545-CV
COURT OF APPEALS FOR THE TIDRD JUDICIAL DISTRICT
AUSTIN, TEXAS
ALEJOS PEREZ,
PLAINTIFF-APPELLANT
vs.
FORT WORTH POLICE DEPARTMENT,
TEXAS DEPARTMENT OF PUBLIC SAFETY CRIME LABORATORY,
TARRANT COUNTY AND J. R. MOLINA,
DEFENDANTS-APPELLEES
ON APPEAL FROM THE 345TH DISTRICT COURT
TRAVIS COUNTY, TEXAS
APPENDIX TO
BRIEF OF APPELLEE CITY OF FORT WORTH, TEXAS
Tab
Information from Public Access Website
for Texas Department of Criminal Justice-Board of Pardons
and Paroles-"A Decision Making Body" ... ..... .... .. ......................................... A
Infmmation from Public Access Website
for Texas Department of Criminal Justice-Board of Pardons
and Paroles-"Board Policies and Directives" ................................. ........ ........ B
Information from Public Access Website
for Texas Department of Criminal Justice-Board of Pardons
and Paroles-"Parole/Mandatory Supervision Information" ........................... C
BRIEF OF APPELLEE CITY OF FORT WORTH 41
EXHIBIT A
BRIEF OF APPELLEE CITY OF FORT WORTH 42
Texas Board of Pardons and Paroles Home Page Page 1 of 1
TEXAS BOARD OF PARDONS AND
PAROLES
Main
Parole/Mandatory Supervision
A DECISION-MAKING BODY
Pa role Guidelines
The Board of Pardons and Paroles decides which eligible offenders to release on parole or
Offender Search/Parole Rev iew
Information discretionary mandatory supervision, and under what conditions. The Board uses research-based
Parole Guidelines to assess each offender's likelihood for a successful parole a~alnst the risk to
Parole Revoca tfons society.
Clemency
The Board also decides whether to revoke parole if conditfons are not fTlet , using a. graduated sanctions
Frequently Asked Questions approach. Depending on the seriousness of the violatron, the Board may continue parole, impose
additional conditions, place the offender in an Intermediate Sanction Facility, or use other alternatives to
Publications
revoking parole. and sending the offender back to prison.
Public Information!
Communications Additionally, the Board recommends clemency matters, including pardons, to the Governor.
Ombudsman
Main Office- 512-406-5452~ Parole Status Line - 844-512-0461 ~
Forms
Rules
LATEST BOARD NEWS:
Policies and Directives Governor Abbott appoints Gutierrez Chair. names Robertson Member of Board of Pardons and Paroles
Contacl Information
Senate Approves Governor Abbott Appointee Fred Solis to BPP
AboutUs
Governor Perry Appoints Rangel to BPP
Links
TXBPP Announces New Nationwide Toll-Fr~e Telephone Number
Read the members' biographies and office assignments
Statement on parole release of civilly committed offenders
"Parole in Te)(as" available on-llne
Parole granted more often, revoked less
Link to the Texas Veterans Portal: A resource for veterans, their families and their survivors.
link to Association of Paroling Authorities International
Updated 10/28/2016
Access ibllity I Contact Us I Terms of Use I Privacy Statement
©2007 Texas Board of Pardons and Paroles. All rights reserved .
http://www.tdcj .state.tx.us/bpp/ 11/15/2016
EXHIBIT B
BRIEF OF APPELLEE CITY OF FORT WORTH 43
Texas Board of Pardons and Paroles. Policies and Directives Page Page 1 of 3
TEXAS BOARD OF PARDONS
AND PAROLES
-
Main
Parole/Mandatory Supervision
BOARD POLICIES AND DIRECTIVES
Parole Guidelines Board policies set standards and guidelines for administering the business of the
Board and are adopted by Board vote.
Parole Revocations
Clemency Board Directives are tnore specific instructions in carrying out its statutory
responsibilities and are issued by Chair/Presiding Officer.
Frequently Asked Questions
Publications Anyone wishing to create a Policy Handbook may click on the Table of
Contents below, save the file to a hard drive, and print the document for
Public Information/ insertion in a binder. The Table of Contents and specific pages may be replaced
Communications
whenever updated ,
Ombudsman
Table of Contents
Forms
Rules
Please click on the Table of Contents name below, and save the file to your hard
drive. You can then print the document and insert it in your Policy Handbook.
Policies and Directives You can throw away the Table of Contents that this one supersedes.
Contact Information
Policy Handbook Table of Contents 09/27/2016
About Us
Policies
Links
!Policy JJName
I BOARD OF PARDONS AND PAROLES MISSION
IBPP- POL.141 .200
STATEMENT
POLICY STATEMENT ON INTERNAL AUDIT
BPP-POL.141 .201
PROCEDURES
PP-POL 141.202 PUBLIC COMMENTS
P-POL 141 2m USE OF TECHNOLOGY
PP-POL.141 .204 NEGOTIATED RULEMAKING
BPP-POL.141 .300 !HANDGUN POLICY
IBPP-POL.143.200 IICLEMENCY
BPP-POL. 145.200 EXTRAORDINARY VOTE (SB 45)
BPP-POL 1'1'- ?n1 ACTION UPON REVIEW-RELEASE DEN IED
BPP-POL.145.202 nrscR1=TIONARY MANDATORY SUPERVISION
ELIGIBILITY FOR RELEASE; CONSECUTIVE
BPP-POL.145.203
(CUMULATIVE) FELONY SENTENCES
\MEDICALLY RECOMMENDED INTENSIVE
IBPP-POL.145.204
SUPERVISION
DESIGNATION OF STANDARDIZED DISTANCE FOR
BPP-POL.145205
CHILD SAFETY ZONES
BPP-POL.145.206 SPECIAL REVIEW-RELEASE DENIED
BPP-POL.145.207 EXTRAORDINARY VOTE (HB 1914)
SPECIAL CONDITION "C" (PROHIBITED FINANCIAL
BPP-POL.145.250
ACTIVITIES)
BPP-POL.145.251 SPECIAL CONDITION "D" (DETAINER)
http://www. tdcj .state.tx.us/bpp/policies_directives/policies_directives .html 11 /1 5/2016
Texas Board of Pardons and Paroles Policies and Directives Page Page 2 of 3
IBPP-POL.145.252 I.LEVE
SPECIAL CONDITION "E" (EDUCATIONAL S-KILL
L)
BPP-POL.145.254 SPECIAL CONDITION "I" EMPLOYER NOTIFICATIOI\
SPECIAL CONDITION "L" (MAXIMUM LEVEL OF
BPP-POL.145.255
SUPERVISION)
SPECIAL CONDITION "M" (SEX OFFENDER
BPP-POL.145.256
REGISTRATION CONDITION AND DNA SUBMISSIQr
SPECIAL CONDITION "P" (SPECIAL NEEDS
BPP-POL.145.257
OFFENDER PROGRAM CASELOAD)
!SPECIAL CONDITION "R'' (RESTITUTION)
!SPECIAL CONDITION "S" (SUBSTANCE ABUSE)
PECIAL CONDITION SISP (SUPER INTENSIVE
UPERVISION PROGRAM)
NDlTION ''T'' ELECTRONIC MONITORlf
DITION "V" (VICTIM)
PECIAL CONDITION "X" (SEX OFFENDER
CONDITION)
SPECIAL CONDITION "Z'' (NOT TO ENTER A
BPP-POL. 145.264
SPECIFIED COUNTY)
I? = = = = = = = = = = :
BPP-POL. 145 _265 SPECIAL CONDITION "N" (PROHIBITION ON
INTERNET ACCESS FOR CERTAIN SEX OFFENDER
11-----------1
BPP-POL.145266 GANG AFFILIATION
BPP-POL. 145 _267 SPECIAL CONDITION "ISF" (INTERMEDIATE
SANCTION FACILITY)
SPECIAL CONDITION "SAFP" (SUBSTANCE ABUSE
BPP-POL 146.251
FELONY PROGRAM)
IBPP-POL 146.252 IPRELIMINARY HEARINGS-PENDING CRIMINAL
.CHARGES
IBPP-POL.148.200 ISEX OFFENDER CONDITIONS - RELEASEE NOT
.CONVICTED OF A SEX OFFENSE
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Directives
Directive Name
BPP-DIR. 08-03.06 BOARD DIRECTIVE RESCISSION BPP-DIR. 08-03.06
BOARD POLICY-MAKING ANO MANAGEMENT
BPP-01 R.141 .300
RESPONSIBILITIES
BPP-DIR .141,.301 WORK HOURS FOR BOARD OFFICE STAFF
WORK HOURS FOR MEMBERS OF THE BOARD OF
BPP-DIR .141.302
PARDONS AND PAROLES
IR.141 .304 PAROLE PAN!=LS
IR.141 .305 TRAVEL
PP-DIR.141.306 VIDEOCONFERENCING
15:,P-DIR.141.307
!"\ID ~,11309
-nlR 141 310
DEPARTURE PROCESSING PROCEDURES
ETHICS POLICY
GENERAL COUNSELS OFFICE POLICY
BPP-DIR.141 .311 REVIEW AND IMPLEMENTATION OF LEGISLATION
BPP-DlR.141.312 ANALYST COVERAGE
RESCIND BPP-D'IR 141 .31 4 PERFORMANCE
BPP-DIR.141 .314
EVALUATION - PAROLE COMMISSIONER
BPP-DIR.141.315 EMPLOYEE IDENTIFICATION CARD
http:/ /www.tdcj .state.tx.us/bpp/policies_directives/policies_directives.html 11 / 1.5/2016
Texas Board of Pardons and Paroles Policies and Directives Paoe
0 Page 3 of3
BPP-DIR.141.318 THE BOARD OF PARDONS AND PAROLES VEHICLE
POLICY
BPP-DIR.141.319 RESCIND BPP-DIR 141 .319 CARRYING A HANDGUN
BPP-DIR.141.320 BUDGET EXPENDITURE APPROVAL
BPP-DIR.141 .330 POLICIES AND PROCEDURES
jBPP-DIR.141 .351 !RECORDS OF COMPLAINTS I
jBPP-DIR.141.352 !PUBLIC INFORMATION OFFICE POLICY I
IBPP-DI R.141.353 !VISITORS ON 'BEHALF OF AN OFFENDER I
OFFENDER PAROLE INTERVIEWS IF
BPP-DIR.141.355
INCARCERATED FOR 20 CONSECUTIVE YEARS
TEXAS BOARD OF PARDONS AND PAROLES
BPP-DJR.141.357
ELECTRONIC MAIL (E-MAIL)
BPP-DIR.141.358 VISITORS REGISTRATION
BPP-DIR.141.400 EXPUNCTIONS
BPP-DIR.143.300 CLEMENCY FOR CAPITAL CASES
BPP-DIR.143.330 FULL PARDON - CONVICTION
BPP-DIR.143 .340 FULL PARDON - DEFERRED ADJUDICATION
BPP-DIR.143.350 REPRIEVES-FAMILY AND EMERGENCY MEDICAL
BPP-DIR.145.300 ACTION UPON REVIEW - APPROVAL
BPP-DIR.145.301 EXTRAORDINARY VOTE (SB 45)
BPP-DIR.145.302 PROPOSING NEW SPECIAL CONDITIONS
-· - , .145,303
RPP-nlR 1·ai:; :l.04
NOTIFICATION OF A PAROLE PANEL DECISION
CUMULATIVE OR CONSECUTIVE SENTENCES
BPP-DIR 145.305 Fl-6 DWI PROGRAM
IBPP-DIR.145.307 ISEX OFFENDER TREATMENT VOTING
IBPP-DIR.145.308 !PROTEST MAIL FROM TRIAL OFFICIALS
IBPP-DIR.145.310 IPERSONAL APPEARANCE ON VICTIM'S BEHALF
IBPP-DIR.145.350 ICONDITlONS OF PAROLE
IBPP-DIR.145.351 !SPECIAL CONDITION SISP - ANNUAL REVIEW
IBPP-DIR.146.300 !MOTION TO REOPEN HEARING
SEX OFFENDER CONDITIONS - RELEASEES NOT
BPP-DI R.148.300
CONVICTED OF A SEX OFFENSE
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PDF Reader installed.
Updated 10/13/2016
Accessibility I Contact Us I Terms of Use I Privacy Statement
©2007 Texas Board of Pardons and Paroles. All rights reserved ,
http://www.tdcj.state.tx.us/bpp/policies_directives/policies_ directives.html 11/15/2016
EXHIBIT C
BRIEF OF APPELLEE CITY OF FORT WORTH 44
Texas Board of Pardons and Paroles What is Parole Page Page 1 of 2
TEXAS BOARD OF
PARDONS AND
PAROLES
Main
Parole/Mandatory
PAROLE/ MANDATORY SUPERVISION
Su~ervision INFORMATION
• Parole What is Parole?
• Parole Eligibility
• Similarities
Between Parole Parole is the discretionary release of an offender, by a Board of
and Mandatory Pardons and Paroles decision, to serve the remainder of a
Supervision
. Parole Review
sentence in the community under supervision .
Periods
• Multi-Year Review Parole is a privilege, not a right.
Periods
. Parole Review
Process
. Parole Panel What is Mandatory Supervision?
Voting Options
. Full Board Parole
Mandatory Supervision is a legislatively mandated release of a
. Decisions
Factors prisoner to parole supervision when the combination of actual
Considered in calendar time and good conduct time equal the sentence. Good
Voting a Case conduct time is credited to an offender for participating in work and
• Approval I Denial
Reasons self-improvement programs.
Not all offenders are eligible. Offenders convicted of offenses listed
Parole Guidelines
under §508 .149(a) Government Code, are not eligible. Also , the
Parole Revocations Board may deny mandatory release on a case-by-case basis for
offenders whose offense date was on or after September 1, 1996
Clemency
(Discretionary Mandatory Release).
Frequently Asked
Questions
Publications Updated 01/16/2013
Public Information/
Communications
Ombudsman
Forms
Rules
Policies and Directives
Contact Information
http://www.tdcj.state.tx.us/bpp/wbat_is_parole/parole.htm 11/15/2016
Texas Board of Pardons and Paroles What is Parole Page Page 2 of2
About Us
Links
Accessibility I Contact Us I Terms of Use I Privacy Statement
©2007 Texas Board of Pardons and Paroles . All rights reserved.
http://www.tdcj.state.tx.us/bpp/what_is_parole/parole.htm 11/ 15/2016