Alejos Perez v. Stuart Jenkins, Director of Texas Boards of Pardons and Paroles Fort Worth Police Department Texas Department of Public Safety Crime Laboratory And Tarrant County

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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In order to read some of the above documents, you must have Adobe's Acrobat

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