NUMBER 13-21-00385-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
DANIEL AIELLO, Appellant,
v.
FRED SOLIS – REGION IV PAROLE
BOARD MEMBER, ET AL., Appellees.
On appeal from the 156th District Court
of Bee County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Benavides and Tijerina
Memorandum Opinion by Chief Justice Contreras
Appellant Daniel Aiello appeals the trial court’s order granting appellees Fred Solis
and David Gutierrez’s plea to the jurisdiction and motion to dismiss. We affirm the trial
court’s order as modified.
I. BACKGROUND
At all times relevant to this case, appellant was an inmate incarcerated in the
McConnell Unit of the Texas Department of Criminal Justice Correctional Institutions
Division in Beeville, Texas. Proceeding pro se and in forma pauperis, appellant filed his
petition on September 15, 2020, alleging causes of action against: (1) Solis, a Region IV
parole board member; (2) Richard Aiello, a parole officer1; and (3) Gutierrez, chair of the
Texas Board of Pardons and Paroles.
Appellant claims that his constitutional rights and the rules and procedures
governing parole hearings were violated when his parole was denied in May 2019.
Appellant challenged the decision to deny his parole on the grounds that: (1) Solis had a
conflict of interest when he “voic[ed] an opinion or vot[ed] on” appellant’s parole review
because Solis was a former police officer, appellant was convicted of aggravated assault
on a police officer, and “police officers . . . are brotherhoods forever”; (2) Richard Aiello
had a conflict of interest when he denied appellant “special review for parole” because
the two share “a rare and uncommon [last] name which originated in Italy,” and thus
Richard Aiello was a “family member with an apparent grudge” against appellant;
(3) Gutierrez, “acting under color of state law,” was derelict in his duties to “observe and
correct parole board members’ conduct and to monitor [his] parole board members’ job
performance”; and (4) “the components to deny parole[ 2 ] are ambiguous and do not
1The trial court granted appellant’s motion to dismiss defendant Richard Aiello from the suit on
September 29, 2021. Accordingly, Solis and Gutierrez are the only appellees in this case.
2 The “components to deny parole” listed in the Board of Pardons and Paroles “decision not to
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provide the opportunity to discharge them ever” and “are basic[al]ly a frivolous excuse to
deny parole and offer no plan for rehabilitation.” Appellant sought a new parole hearing
“with unbiased[ed] and unprejudice[d] parole board members,” and “an injunction moving
the Texas Board of Pardons and Parole[s] to comply with all Texas administration codes,
state laws[,] and the U.S. Constitution concerning due process and equal and fair
treatment during all parole proceedings.”
Appellees filed their “Plea to the Jurisdiction and Motion to Dismiss Pursuant to
Chapter 14” of the Texas Civil Practice and Remedies Code, arguing: (1) that the trial
court lacked subject matter jurisdiction over appellant’s claims because they are based
on “irregularities occurring during parole proceedings,” which were required to be raised
“by way of a post-conviction application for writ of habeas corpus under article 11.07 of
the Texas Code of Criminal Procedure”; or alternatively, (2) that appellant’s claims should
be dismissed as frivolous or malicious under Chapter 14. After holding a hearing on
appellees’ plea to the jurisdiction and motion to dismiss, the trial court granted the plea
grant parole” form are as follows:
(1D) The record indicated that the offender has repeatedly committed criminal episodes
that indicate a predisposition to commit criminal acts upon release.
(2D) The record indicates the instant offense has the element[] of brutality, violence,
assaultive behavior, or conscious selection of victim’s vulnerability indicating a conscious
disregard for the lives, safety, or property of others, such that the offender poses a
continuing threat to public safety.
(3D) The record indicates excessive substance use involvement.
(7D) The record indicates that the length of time served by the offender is not congruent
with offense severity and criminal history.
(11D) Other – Multi State Offender/Extensive History.
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and motion and dismissed all of appellant’s claims with prejudice. Appellant filed a “motion
for new trial to vacate, modify, [or to] correct [the] judgment rendered without jurisdiction”
arguing that the trial court erred by dismissing his claims with prejudice. The trial court
denied appellant’s motion, and this appeal followed.
II. DISCUSSION
On appeal, appellant concedes that the trial court lacked jurisdiction to hear his
claims but argues that the court erred by dismissing his claims “with prejudice.” Appellant
contends that the dismissal of his claims with prejudice deprives him of his “guaranteed
right to due process and equal protection by law” by “unjustly disposing of [his] claims
and bar[ring] future action.”
A. Standard of Review & Applicable Law
A plea to the jurisdiction is a dilatory plea used to defeat a cause of action without
considering whether the claims asserted have merit. Bland Indep. Sch. Dist. v. Blue, 34
S.W.3d 547, 554 (Tex. 2000). The plea challenges the trial court’s subject-matter
jurisdiction. Id. Whether a trial court has subject-matter jurisdiction and whether the
pleader has alleged facts that affirmatively demonstrate the trial court’s subject-matter
jurisdiction are questions of law that we review de novo. Sampson v. Univ. of Tex. at
Austin, 500 S.W.3d 380, 384 (Tex. 2016) (citing Tex. Dep’t of Parks & Wildlife v. Miranda,
133 S.W.3d 217, 226 (Tex. 2004)).
When a plea to the jurisdiction challenges the pleadings, we determine if the
plaintiff has met his burden to allege facts affirmatively demonstrating the court’s
jurisdiction to hear the cause. Miranda, 133 S.W.3d at 226 (citing Tex. Ass’n of Bus. v.
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Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993)). We construe the pleadings
liberally in favor of the plaintiff and look to the pleader’s intent. Id. If the pleadings do not
contain sufficient facts to affirmatively demonstrate jurisdiction but do not affirmatively
demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency and
the plaintiff should be afforded the opportunity to amend. Id. at 226–27. If the pleadings
affirmatively negate jurisdiction, then the plea may be granted without affording the
plaintiff this opportunity. Id. at 227.
To control frivolous, malicious, and excessive inmate litigation, the Legislature
enacted Chapter 14 of the civil practice and remedies code. See TEX. CIV. PRAC. & REM.
CODE ANN. §§ 14.001–.014. Chapter 14 governs inmate litigation in which an affidavit or
unsworn declaration of inability to pay costs is filed by the inmate. See id. An inmate
proceeding pro se and in forma pauperis must comply with the statutory requirements
outlined in Chapter 14. Douglas v. Moffett, 418 S.W.3d 336, 339 (Tex. App.—Houston
[14th Dist.] 2013, no pet.). Should the inmate fail to do so, the trial court may dismiss his
suit. Remsburg v. Marquez, 542 S.W.3d 823, 825–26 (Tex. App.—Amarillo 2018, no pet.).
We review the dismissal of inmate lawsuits under Chapter 14 for an abuse of discretion.
See TEX. CIV. PRAC. & REM. CODE ANN. §§ 14.001–.014; Thomas v. Knight, 52 S.W.3d
292, 294 (Tex. App.—Corpus Christi–Edinburg 2001, pet. denied); see also McCann v.
TDCJ-CID, No. 13-19-00203-CV, 2019 WL 4866045, at *1 (Tex. App.—Corpus Christi–
Edinburg Oct. 3, 2019, no pet.) (mem. op.). A trial court abuses its discretion if it “act[s]
without reference to guiding rules and principles to such an extent that its ruling was
arbitrary or unreasonable.” Landry’s, Inc. v. Animal Legal Def. Fund, 631 S.W.3d 40, 46
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(Tex. 2021) (quoting Nath v. Tex. Child.’s Hosp., 446 S.W.3d 355, 361 (Tex. 2014)).
Texas courts have held that a person alleging irregularities occurring during parole
proceedings must raise those issues by way of a post-conviction application for writ of
habeas corpus under Article 11.07 of the Texas Code of Criminal Procedure. See Bd. of
Pardons & Paroles ex rel. Keene v. Ct. of Appeals for Eighth Dist., 910 S.W.2d 481, 484
(Tex. Crim. App. 1995) (per curiam) (citing TEX. CODE CRIM. PROC. ANN. art. 11.07); see
also McBride v. Theilke, No. 03-20-00073-CV, 2021 WL 1704259, at *3 (Tex. App.—
Austin Apr. 30, 2021, pet. denied) (mem. op.) (“A writ of habeas corpus is the exclusive
remedy for addressing the alleged irregularities in the parole revocation proceedings and
for asserting claims that [appellant]’s confinement has been extended as the result of
unlawful discrimination.”); Thompson v. Aliseda, No. 13-08-00417-CV, 2009 WL 200994,
at *2 (Tex. App.—Corpus Christi–Edinburg Jan. 29, 2009, pet. denied) (mem. op.) (“In the
present case, [appellant] essentially argues that he was denied parole and his
confinement was extended because the Board of Pardons and Paroles engaged in
various forms of discrimination. As such, [appellant] should have asserted his claims in a
petition for writ of habeas corpus.”); Cook v. Tex. Dep’t of Crim. Just. Transitional Plan.
Dep’t, 37 F.3d 166, 167–68 (5th Cir. 1994) (noting that an inmate’s challenge to the “fact
or duration” of his confinement or to “the result of a single defective parole hearing” must
be brought via writ of habeas corpus (citing Preiser v. Rodriguez, 411 U.S. 475, 489
(1973))). Article 11.07 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; Bd. of Pardons & Paroles, 910 S.W.2d at 484.
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B. Analysis
In his petition, appellant effectively contends that his parole hearing was defective,
his parole was denied, and his confinement was thus extended because appellees had
conflicts of interest and utilized illegal components when evaluating his fitness for parole.
Consequently, we agree with both parties that the court of criminal appeals retains the
exclusive jurisdiction to address appellant’s allegations. See Preiser, 411 U.S. at 500;
Cook, 37 F.3d at 168; Bd. of Pardons & Paroles, 910 S.W.2d at 483; TEX. CODE CRIM.
PROC. ANN. art. 11.07. But appellant argues the trial court erred by dismissing his claims
“with prejudice.” We agree.
“Once a trial court learns that it lacks jurisdiction, it becomes the duty of the court
to dismiss the cause or claim without rendering a judgment on the merits.” Black v.
Jackson, 82 S.W.3d 44, 56 (Tex. App.—Tyler 2002, no pet.) (citing Li v. Univ. of Tex.
Health Sci. Ctr. at Hous., 984 S.W.2d 647, 654 (Tex. App.—Houston [14th Dist.] 1998,
pet. denied)). It is “well established that a dismissal with prejudice functions as a final
determination on the merits” and operates as if the case had been fully tried and decided.
Mossler v. Shields, 818 S.W.2d 752, 754 (Tex. 1991) (per curiam); see El Pistolon II, Ltd.
v. Levinson Alcoser Assocs., L.P., 627 S.W.3d 494, 500 n.2 (Tex. App.—Corpus Christi–
Edinburg 2021, pet. filed) (“A dismissal with prejudice operates as res judicata to bar the
dismissed claims.”); Thomas v. Skinner, 54 S.W.3d 845, 847 (Tex. App.—Corpus Christi–
Edinburg 2001, pet. denied) (“[O]rders dismissing cases with prejudice have full res
judicata and collateral estoppel effect, barring subsequent relitigation of the same causes
of action or issues between the same parties.”). Consequently, “a dismissal with prejudice
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for lack of subject matter jurisdiction constitutes error.” Jackson, 82 S.W.2d at 56 (citing
Mossler, 818 S.W.2d at 754). 3
A trial court’s dismissal of an inmate’s Chapter 14 claims should be without
prejudice if the inmate’s error can be remedied. See Pena v. McDowell, 201 S.W.3d 665,
666 (Tex. 2006) (“Under Texas Law, [an inmate’s failure to list, with particularity, the
operative facts of any suit previously filed in forma pauperis] may be corrected through
an amended pleading, so a dismissal with prejudice is not appropriate.”); Harris County
v. Sykes, 136 S.W.3d 635, 639 (Tex. 2004) (“In general, a dismissal with prejudice is
improper when the plaintiff is capable of remedying the jurisdictional defect.”); Leachman
v. Dretke, 261 S.W.3d 297, 306 (Tex. App.—Fort Worth 2008, no pet.) (“Whether the trial
court abused its discretion by dismissing [appellant]’s [Chapter 14] claims with prejudice
depends on whether [appellant]’s errors could be remedied.”); Skinner, 54 S.W.3d at 847
3 In their brief on appeal, appellees cite this Court’s 1976 Cowgill v. White opinion to argue that the
trial court did not err by dismissing appellant’s claims “with prejudice.” See 543 S.W.2d 437 (Tex. App—
Corpus Christi–Edinburg 1976, writ ref’d n.r.e.). We noted in Cowgill that “as a general rule, a dismissal
with prejudice is res judicata and is conclusive of the rights of the parties as if the suit had been prosecuted
to a final adjudication adverse to the plaintiff.” Id. at 439. We stated, however, that “this action by the trial
court must be narrowly construed to mean only that this judgment is res judicata to any further attempts by
the plaintiff to bring this same cause of action in a” court without proper jurisdiction. Id. We continued, “It is
the well settled law of this State that a judgment dismissing a suit for want of jurisdiction cannot be res
judicata as to the merits and does not bar a plaintiff from bringing action on the same cause in a court
having jurisdiction.” Id. at 440. Accordingly, we concluded that the trial court’s judgment dismissing
appellant’s claims for want of jurisdiction with prejudice “was not error.” Id. In essence, we held that it
matters not whether the order contains the words “with prejudice” or “without prejudice” because, either
way, a dismissal for want of jurisdiction will not bar a future action on the merits in a court with proper
jurisdiction.
The more recent cases place more significance on the trial court’s designation of a dismissal as
“with prejudice.” See, e.g., McLean v. Livingston, 486 S.W.3d 561, 564 (Tex. 2016); Harris County v. Sykes,
136 S.W.3d 635, 639 (Tex. 2004); Mossler v. Shields, 818 S.W.2d 752, 754 (Tex. 1991); Black v. Jackson,
82 S.W.3d 44, 56 (Tex. App.—Tyler 2002, no pet.). In any event, whether or not Cowgill controls, the
ultimate effect of this case’s outcome is unchanged: appellant may raise his claims in the court of criminal
appeals.
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(holding that trial court erred by dismissing inmate’s claims with prejudice because
inmate’s “failure to comply with [C]hapter 14 could have been remedied through
amendment”); Knight, 52 S.W.3d at 295–96 (“When an appellate court reviews whether
a trial court abused its discretion in dismissing an inmate’s suit, it should consider whether
the suit was dismissed with prejudice and if the suit was, determine whether the inmate’s
error could be remedied through more specific pleading.”); Hickman, 35 S.W.3d at 124–
25 (“[W]hen reviewing whether the district court abused its discretion in dismissing the
inmate’s suit, the appellate court should consider whether the suit was dismissed with
prejudice and if it was, determine whether the inmate’s error could be remedied.”). 4
The trial court lacked subject matter jurisdiction to hear appellant’s claims and so
it did not err by granting appellees’ plea to the jurisdiction and motion to dismiss. See TEX.
CODE CRIM. PROC. ANN. art. 11.07; Bd. of Pardons & Paroles, 910 S.W.2d at 484.
However, the court should have dismissed appellant’s claims without prejudice, as he
may properly file his claims by way of a post-conviction application for writ of habeas
corpus in the court of criminal appeals. See Sykes, 136 S.W.3d at 639; Jackson, 82
4 In Crain v. Prasifka, this Court held that the dismissal of an inmate’s suit under § 14.005 for the
failure to exhaust administrative remedies should have been “without prejudice” because “[a] dismissal for
failure to comply with the conditions in [§] 14.005 is not a dismissal on the merits, but rather an exercise of
the trial court’s discretion under [C]hapter 14.” 97 S.W.3d 867, 870 (Tex. App.—Corpus Christi–Edinburg
2003, pet. denied). However, after we decided Crain, the Texas Supreme Court clarified the law regarding
this matter in Pena v. McDowell, 201 S.W.3d 665, 665–66 (Tex. 2006) (per curiam). In Pena, the trial court
dismissed an inmate’s suit with prejudice as “frivolous or malicious” because the inmate failed to comply
with the § 14.004 filing requirements—specifically, for failing to list the operative facts of any suit previously
filed pro se by the inmate. See id. The court of appeals affirmed the dismissal but reformed the judgment
to read “without prejudice.” Id. at 665. The Texas Supreme Court held that “[u]nder Texas law, [a dismissal
for failure to comply with § 14.004] may be corrected through an amended pleading, so a dismissal with
prejudice is not appropriate.” Id. at 666; see McLean v. Livingston, 486 S.W.3d 561, 564 (Tex. 2016).
Accordingly, we follow the relevant supreme court authority herein.
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S.W.2d at 56; Skinner, 54 S.W.3d at 847. Accordingly, we modify the trial court’s order
by deleting the words “with prejudice” and substituting the words “without prejudice to
Plaintiff’s filing his claims in a court with proper jurisdiction.” See TEX. R. APP. P. 43.2(c)
(“The court of appeals may . . . modify the trial court’s judgment and affirm it as
modified.”). 5
III. CONCLUSION
We affirm the trial court’s order as modified.
DORI CONTRERAS
Chief Justice
Delivered and filed on the
28th day of April, 2022.
5 Appellant filed a “motion of objection to brief of appellees” on April 13, 2022, which we deny.
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