The opinion
ACCEPTED
03-16-00259-CV
13047938
THIRD COURT OF APPEALS
AUSTIN, TEXAS
10/4/2016 11:45:25 AM
JEFFREY D. KYLE
CLERK
NO. 03-16-00259-CV
In the Court of Appeals FILED IN
3rd COURT OF APPEALS
For the Third Supreme Judicial District of TexasAUSTIN, TEXAS
10/4/2016 3:16:25 PM
Austin, Texas JEFFREY D. KYLE
Clerk
JAMES BOONE
Plaintiff-Appellant
v.
DAVID GUTIERREZ, CHAIRMAN,
TEXAS BOARD OF PARDONS AND PAROLES
Defendant-Appellee
On Appeal from the 201ST Judicial District Court
of Travis County Texas.
BRIEF OF APPELLEE
KEN PAXTON KAREN D. MATLOCK
Attorney General of Texas Chief, Law Enforcement Defense Division
JEFFREY C. MATEER CAROL M. GARCIA*
First Assistant Attorney General Assistant Attorney General
BRANTLEY STARR
Deputy First Assistant Attorney General
JAMES E. DAVIS P.O. Box 12548, Capitol Station
Deputy Attorney General for Austin, Texas 78711
Civil Litigation (512) 463-2080
(512) 936-2109
ATTORNEYS FOR DEFENDANT-APPELLEE
*Attorney of Record
Oral Argument Waived
i
CERTIFICATE OF INTERESTED PERSONS
The undersigned counsel of record certifies that the following listed persons
and entities as described in Rule 38.1(a) of the Texas Rules of Appellate Procedure
have an interest in the outcome of this case. These representations are made in order
that the judges of this court may evaluate possible disqualification or recusal.
A. Parties
Plaintiff-Appellant: James Boone, TDCJ-ID# 658981
Ellis Unit
1697 FM 980
Huntsville, Texas 77343
Pro Se
Defendant-Appellee: David Gutierrez, Presiding Chair,
Texas Board of Pardons and Paroles
Attn: Bettie Wells, General Counsel
Price Daniel, Sr. Bldg.
209 West 14th St., Suite 500
Austin, Texas
B. Attorneys
For Appellant: James Boone, TDCJ-ID# 658981
Ellis Unit
1697 FM 980
Huntsville, Texas 77343
Pro Se
For Appellee: Carol M. Garcia, Assistant Attorney General
Office of the Attorney General, State of Texas
Law Enforcement Defense Division
P.O. Box 12548, Capitol Station
Austin, Texas 78711
ii
/s/ Carol M. Garcia
CAROL M. GARCIA
Assistant Attorney General
iii
TABLE OF CONTENTS
PAGE No.
CERTIFICATE OF INTERESTED PERSONS .................................................. ii
TABLE OF CONTENTS .......................................................................................iv
INDEX OF AUTHORITIES .................................................................................. v
STATEMENT OF THE CASE ............................................................................... 2
ISSUES PRESENTED ............................................................................................. 3
SUMMARY OF THE ARGUMENT ..................................................................... 3
STANDARD OF REVIEW ..................................................................................... 3
ARGUMENT ............................................................................................................ 4
Reply to Issues One-Four: The district court properly granted appellee’s
Motion to Dismiss Baseless Cause of Action ........................................ ........4
PRAYER ..................................................................................................................6
NOTICE OF ELECTRONIC FILING .................................................................. 8
CERTIFICATE OF SERVICE .............................................................................. 8
CERTIFICATE OF COMPLIANCE ................................................................... 9
iv
INDEX OF AUTHORITIES
Cases
Johnson v. Rodriguez,
110 F.3d 299 (5th Cir. 1997) ..................................................................................6
Koenig v. Blaylock,
No. 03-15-00705-CV, slip op. at 3-4, 2016 WL 3610950 (Tex. App.—Austin,
July 01, 2016, no pet. h.).........................................................................................5
Madison v. Parker,
104 F.3d 765, 768 (5th Cir. 1997) ..........................................................................6
Orellana v. Kyle,
65 F.3d 28, 31-31 (5th Cir. 1995) ...........................................................................6
Wooley v. Schaffer,
447 S.W.3d 71, 76 (Tex. Civ. App.—Houston [14th Dist.] 2014).........................4
Statutes
Texas Constitution Article 1, Section 19 ...................................................................2
Rules
Tex. R. Civ. P. 91a.3 ..................................................................................................4
Tex. R. Civ. P. 91a.6 ..................................................................................................4
v
NO. 03-16-00259-CV
In the Court of Appeals
For the Third Supreme Judicial District of Texas
Austin, Texas
JAMES BOONE
Plaintiff-Appellant,
v.
DAVID GUTIERREZ, CHAIRMAN,
TEXAS BOARD OF PARDONS AND PAROLES
Defendant-Appellee
On Appeal from the 201ST Judicial District Court
of Travis County Texas.
BRIEF OF APPELLEE
TO THE HONORABLE JUDGES OF THE THIRD COURT OF APPEALS:
NOW COMES David Gutierrez, Presiding Chair, Texas Board of Pardons and
Paroles (TBPP) by and through his counsel, the Attorney General of Texas, and
submits this his Appellee’s Brief in response to the brief filed by appellant, James
Boone.
1
I
STATEMENT OF THE CASE
Appellant James Boone is an offender currently incarcerated at the Ellis Unit
within the Texas Department of Criminal Justice, Walker County, Texas.
Proceeding pro se and informa pauperis, plaintiff filed his Original Due Process of
Law Complaint Pursuant to United States Constitution Amendment Fourteen; Texas
Constitution Article 1, Section 19 on December 29, 2015.1 David Gutierrez is the
presiding officer of the TBPP, a state agency.2 Appellee filed his Motion to Dismiss
Plaintiff’s Baseless Cause of Action on February 02, 2016.3 Appellant Boone is
seeking relief in the form of requiring the District Court to require the TBPP to
reverse its prior decision and grant appellant parole or to require the TBPP to provide
a special review hearing for appellant, considering him for parole release.4
On March 04, 2016, via telephone conference, the Honorable Amy Clark
Meacham of the 201st Judicial District Court, Travis County, Texas heard appellee
Gutierrez’ Motion to Dismiss Plaintiff’s Baseless Cause of Action.5 The District
Court subsequently granted appellee’s motion on April 04, 2016.6 Appellant filed
1
Clerk’s Record, Vol. 1, Pgs. 04-29.
2
Clerk’s Record, Vol. 1, Pg. 42.
3
Clerk’s Record, Vol. 1, Pgs. 42-45.
4
Clerk’s Record, Vol. 1, Pg. 13-14.
5
Reporter’s Record, Vol. 1. Pgs. 01-12.
6
Clerk’s Record, Vol. 1, Pg. 70.
2
his Notice of Appeal on May 12, 2016.7 Appellant’s brief was received and filed by
this Court on April 21, 2016.
II
ISSUES PRESENTED
Reply to Issues One-Four: The district court properly granted
appellee’s Motion to Dismiss Plaintiff’s Baseless Cause of Action.
III
SUMMARY OF THE ARGUMENT
1. The 45-day deadline in TRCP91a is directory, rather than mandatory,
thus offering the District Court the ability to consider the motion in
keeping with the prompt dismissal of baseless causes of action.
2. The district court properly granted appellee’s because appellant’s
lawsuit, founded on the principle that he has a liberty interest in being
released on parole, has no basis in law.
3. It has long been recognized that Texas law does not create a liberty
interest in parole that is protected by the Due Process Clause, and Texas
prisoners have no constitutional expectancy of release on parole.
IV
STANDARD OF REVIEW
Pursuant to Tex. R. Civ. P. 91a, a trial court may dismiss a cause of action
that (1) has no basis in law, (2) no basis in fact, or (3) on both of these grounds. Tex.
R. Civ. P. 91a.1.8 In deciding such a motion, a trial court may not consider evidence
7
Clerk’s Record, Vol. 1, Pgs. 84-85.
8
Appellant’s cause of action is not governed by Chapter 14 of the Texas Civil Practice and
Remedies Code because parole issues are not governed by the Texas Department of Criminal
Justice grievance process.
3
and must decide the motion solely on a review of the content within the four corners
of the live pleading, including the attachments thereto.9 The determination of
whether a cause of action has any basis in law and in fact are legal questions that are
reviewed de novo.10
V
ARGUMENT
Reply to Issues One-Four: The district court properly granted
appellee’s Motion to Dismiss Plaintiff’s Baseless Cause of Action.
Argument and Authorities
As stated previously, appellee Gutierrez’ Motion to Dismiss Plaintiff’s
Baseless Cause of Action was heard via a telephonic hearing on March 04, 2016.11
An Order granting the motion was issued on April 04, 2016.12 Appellant Boone
argues that the District Court failed to meet the requisites of Texas Rule of Civil
Procedure 91a.3 by failing to issue its Order by March 17, 2016.13 According to
TRCP 91a.3(c), the motion to dismiss must be granted or denied within 45 days after
the motion is filed.14 However, this Court very recently held that the “45-day period
9
Tex. R. Civ. P. 91a.6.
10
Wooley v. Schaffer, 447 S.W.3d 71, 76 (Tex. Civ. App.—Houston [14th Dist.] 2014).
11
Reporter’s Record, Vol. 1, Pgs. 01-12.
12
Clerk’s Record, Vol. 1, Pg. 70.
13
Appellant’s Brief, pg. 10.
14
Tex. R. Civ. P. 91a.3.
4
during which a court ‘shall’ deny or grant a Rule 91a motion to dismiss is merely
directory rather than mandatory.”15
In the absence of any ‘words restraining’ action by the trial court
beyond the time limit and the outlining of any consequences for failure
to act therein, it is more reasonable to conclude that the time limit in
this relatively new rule is not a hard deadline that prohibits the court
from considering the substance of the motion to dismiss after the
expiration of the 45-day time period but, rather, a provision included in
the rule to promote the orderly and prompt dismissal of baseless causes
of action.16
In this instance, while the hearing was held within the 45 day deadline, the District
Court took additional time to review the case prior to making its ruling shortly on
April 04, 2016.
As to the substance of the appeal, appellant Boone writes that appellee’s
failure to grant him parole release, or at the least, a special parole review, is
unconstitutional based on the fact that he “has only had one (1) major disciplinary
infraction (during 23 years of incarceration)”17 and in light of his light of
accomplishments.18 However, it has long been recognized that Texas law does not
create a liberty interest in parole that is protected by the Due Process Clause, and
15
Koenig v. Blaylock, No. 03-15-00705-CV, slip op. at 3-4, 2016 WL 3610950 (Tex. App.—
Austin, July 01, 2016, no pet. h.).
16
Id., at 3.
17
Clerk’s Record, Vol. 1, Pg. 10.
18
Clerk’s Record, Vol. 1, Pg. 13.
5
Texas prisoners have no constitutional expectancy of release on parole.19 It is
“axiomatic that because Texas prisoners have no protected liberty interest in parole
they cannot mount a challenge against any state parole review procedure on
procedural (or substantive) Due Process grounds.”20
Appellant Boone has the mistaken belief that he has a constitutionally
protected liberty interest in parole. Consequently, the trial court did not err when it
granted appellant Gutierrez’ Motion to Dismiss Plaintiff’s Baseless Cause of Action
and its judgment must be affirmed.
VI
PRAYER
In light of the foregoing, appellee David Gutierrez respectfully asks the court
to affirm the trial court’s judgment granting appellee’s Motion to Dismiss Plaintiff’s
Baseless Cause of Action.
Respectfully submitted,
KEN PAXTON
Attorney General of Texas
JEFFREY C. MATEER
First Assistant Attorney General
19
See Orellana v. Kyle, 65 F.3d 28, 31-32 (5th Cir. 1995); Madison v. Parker, 104 F.3d 765, 768
th
(5 Cir. 1997).
20
Johnson v. Rodriguez, 110 F.3d 299, 308 (5th Cir. 1997).
6
BRANTLEY STARR
Deputy First Assistant Attorney
General
JAMES E. DAVIS
Deputy Attorney General for Civil
Litigation
KAREN D. MATLOCK
Assistant Attorney General
Chief, Law Enforcement Defense Division
CAROL M. GARCIA
CAROL M. GARCIA
Assistant Attorney General
Law Enforcement Defense Division
Attorney in Charge
State Bar No. 07631680
carol.garcia@texasattorneygeneral.gov
P. O. Box 12548, Capitol Station
Austin, Texas 78711
Phone: (512) 463-2080
Fax No: (512) 936-2109
ATTORNEYS FOR DEFENDANT-
APPELLEE
7
NOTICE OF ELECTRONIC FILING
I, CAROL M. GARCIA, Assistant General of Texas, certify that I have
electronically submitted for filing, a true and correct copy of the above and foregoing
Appellee’s Brief in accordance with the Electronic Case Files System of the Third
Court of Appeals, on the 04th day of October 2016.
/s/ CAROL M. GARCIA
CAROL M. GARCIA
Assistant Attorney General
CERTIFICATE OF SERVICE
I, CAROL M. GARCIA, Assistant Attorney General of Texas, certify that a
true and correct copy of the above and foregoing Appellee’s Brief has been served
by placing same in the United States Mail on this 04th day of October 2016,
addressed to:
James Boone, TDCJ-ID# 658981
Ellis Unit
1697 FM 980
Huntsville, Texas 77343
Appellant Pro Se
/s/ CAROL M. GARCIA
CAROL M. GARCIA
Assistant Attorney General
8
CERTIFICATE OF COMPLIANCE
With Type-Limitation, Typeface Requirements,
and Type Style Requirements
1. This brief complies with the type-volume limitation of Fed. R. App. P.
32(a)(7)(B) because:
[X] this brief contains 1155 words, excluding the parts of the brief
exempted by Fed. R. App.P.32 (a) (7) (B) (iii), or
[ ] this brief uses a monospaced typeface and contains [state the number
of] lines of text, including the parts of the brief exempted by Fed. R. App.P.
32(z) (7) (B) (iii).
2. This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)
(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because:
[X] this brief has been prepared in a proportionally spaced typeface using
MS Word for Window, version 2010 in Times Roman 14-point type face, or
[ ] this brief has been prepared in a monospaced typeface using [state name
and version of work processing program] with [state number of characters per
inch and name of type style].
/s/ Carol M. Garcia
CAROL M. GARCIA
COUNSEL FOR DEFENDANT-
APPELLEE
October 4, 2016
9