# James Boone v. David Gutierrez, Chairman, Texas Board of Pardons and Paroles > Texas Court of Appeals, 3rd District (Austin) · October 4, 2016 URL: https://www.frixlaw.com/law-library/cases/4079725 ## Case - **Court:** Texas Court of Appeals, 3rd District (Austin) - **Decided:** October 4, 2016 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4079725 ## Opinion text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4079725. Public record. Not legal advice.