Eddie Don Johnson v. Texas Department of Criminal Justice-Parole Division

Opinion

ACCEPTED

03-15-00343-CV

6834820

THIRD COURT OF APPEALS

AUSTIN, TEXAS

9/8/2015 5:17:16 PM

JEFFREY D. KYLE

CLERK

No. 03-1500343-CV

FILED IN

In the Court of Appeals 3rd COURT OF APPEALS AUSTIN, TEXAS

For the Third District of Texas9/8/2015 5:17:16 PM JEFFREY D. KYLE

At Austin, Texas Clerk

___________________________________

EDDIE DON JOHNSON,

Appellant,

v.

THE STATE OF TEXAS,

Appellee.

____________________________________

On Direct Appeal from the 200th Judicial District Court of Travis County, Texas Trial Court Cause No. D-1-GN-13-001602

____________________________________

APPELLEES’ BRIEF

____________________________________

KEN PAXTON *JENNIFER L. DANIEL Attorney General of Texas Assistant Attorney General State Bar No. 24090063

CHARLES E. ROY First Assistant Attorney General Office of the Attorney General P.O. Box 12548

JAMES E. DAVIS Austin, Texas 78711-2548 Deputy Attorney General Tel: (512) 463-2080 for Civil Litigation Fax: (512) 936-2109 Jennifer.Daniel@texasattorney KAREN D. MATLOCK general.gov Chief, Law Enforcement Defense Division Counsel for Appellees *Attorney-In-Charge

ORAL ARGUMENT NOT REQUESTED

IDENTITY OF PARTIES & COUNSEL

Appellant:

Eddie Don Johnson, No. 00364033 TDCJ – James A. Lynaugh Unit 1098 S. Highway 2037 Fort Stockton, Texas 79735 Plaintiff Pro Se

Appellees:

The State of Texas—Texas Department of Criminal Justice (TDCJ) TDCJ Board of Pardons and Parole P. O. Box 13401 Austin, Texas 78711-3401

Attorney for Appellees:

Jennifer L. Daniel Assistant Attorney General State Bar No. 24090063 Law Enforcement Defense Division P. O. Box 12548, Capitol Station Austin, Texas 78711 (512) 463-2080 / (512) 936-2109 Fax

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TABLE OF CONTENTS

Page

Identity of Parties and Counsel…………………………………………………….ii

Table of Contents ………………………………………………………………....iii

Index of Authorities………………………………………………………………..iv

Statement of the Case………………………………………………………………1

Issues Presented………………………………………………………………….....2

I. Whether TDCJ is entitled to sovereign immunity for the claims brought against it pursuant to Texas Government Code Section 2001.038..…………………………………………………………….......2

Statement of Facts………………………………………………………………......2

Summary of the Argument…………………………………………………………2

Standard of Review………………………………………………………………...3

Argument…………………………………………………………………………...3

1. Offender Johnson pled facts affirmatively demonstrating that his claim falls outside Section 2001.038 of the APA, and his claim is barred by sovereign immunity…...…………………………...….………………….3

Conclusion………………………………………………………………………….5

Notice of Electronic Filing…………………………………………………………6

Certificate of Compliance…………………………………………………………..6

Certificate of Service…………………………………………………………….....7

iii

INDEX OF AUTHORITIES

Cases Page

Tex. Parks & Wildlife Dep’t v. Gallacher, 2015 WL 1026473 (Tex.App.—Austin Mar. 4, 2015, no pet.) .............................3

Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629 (Tex.2012)....................................................................................3

Texas Dep’t of Transp. v. Sefzik, 355 S.W.3d 618 (Tex. 2011) ..................................................................................3

Hernandez v. Tex. Dep't of Criminal Justice, 2014 WL 711028 (Tex.App..—Austin Feb. 19, 2014, no pet.) .............................4

Rules, Codes, and Statutes

Tex. Gov’t Code § 2001.226......................................................................................4 Tex. Gov’t Code § 2001.038(a), (c)...........................................................................3 Tex. Gov’t Code § 2001.223(3). ..............................................................................4

iv

___________ _________________________

EDDIE DON JOHNSON,

Appellant,

v.

THE STATE OF TEXAS,

Appellee.

___________________________________

On Direct Appeal from the 200th Judicial District Court of Travis County, Texas Trial Court Cause No. D-1-GN-13-001602

____________________________________

APPELLEE’S BRIEF

____________________________________

TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS,

AUSTIN:

Appellee Texas Department of Criminal Justice (“TDCJ”), through the Office

of the Attorney General, submits this brief in support of the trial court’s judgment

dismissing this case. Appellee asks this Court to affirm the lower court’s dismissal.

STATEMENT OF THE CASE

Appellant, Eddie Don Johnson, proceeding pro se and in forma pauperis, filed

suit in the 200th Judicial District Court of Travis County, Texas. See Plaintiff’s

Original Petition, C.R. at 5. Offender Johnson brings a suit against TDCJ pursuant

to Texas Government Code Section 2001.038 of the Administrative Procedures Act

2

(APA) seeking a declaration that TDCJ’s application of Special Condition X SISP

to his parole was invalid. Id.

Appellee answered and filed an Amended Plea to the Jurisdiction. See

Defendants Amended Plea to the Jurisdiction, C.R. at 240. On May 13, 2015, the

Honorable Charles R. Ramsey granted Appellee’s plea to the jurisdiction and issued

a final judgment dismissing the case. C.R. at 249. On June 1, 2015, Appellant filed

his Notice of Appeal. C.R. at 251.

ISSUE PRESENTED

I. Whether TDCJ is entitled to sovereign immunity for the claims brought against it pursuant to Texas Government Code Section 2001.038.

STATEMENT OF FACTS

On January 16, 2004, Offender Johnson was released from TDCJ custody to

mandatory supervision. C.R. at 7. The Board of Pardons and Parole issued an order

imposing Special Condition X SISP on his parole on December 11, 2003. Id. On

the day of his release, Offender Johnson was provided with notice of the imposition

of special condition X SISP being applied to him. Id. Offender Johnson was arrested

on August 4, 2004. Id. On March 25, 2005, his discretionary mandatory supervision

was revoked. C.R. at 8. He was returned to TDCJ custody on April 8, 2005. Id.

SUMMARY OF THE ARGUMENT

The record supports the trial court’s judgment in dismissing Appellant’s suit

for lack of subject matter jurisdiction. Appellant failed to overcome TDCJ’s

3

entitlement to sovereign immunity. The court below appropriately applied the law,

and the judgment should be affirmed.

STANDARD OF REVIEW

Whether a trial court has subject-matter jurisdiction is a question of law

reviewed de novo. Tex. Parks & Wildlife Dep’t v. Gallacher, 2015 WL 1026473, at

*3 (Tex.App.—Austin Mar. 4, 2015, no pet.) (citing Mission Consol. Indep. Sch.

Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex.2012).). Accordingly, the grant of the

plea to jurisdiction should be reviewed de novo. Id.

ARGUMENT

1. Offender Johnson pled facts affirmatively demonstrating that his claim falls outside Section 2001.038 of the APA, and his claim is barred by sovereign immunity.

Sovereign immunity deprives Texas courts of subject-matter jurisdiction to

adjudicate any suit against the State or its agencies or subdivisions, absent legislative

waiver. Texas Dep’t of Transp. v. Sefzik, 355 S.W.3d 618, 620 (Tex. 2011).

Offender Johnson attempts to rely on APA section 2001.038 to bring his

challenge to Condition X SISP being applied to his parole. C.R. at 5. Texas

Government Code Section 2001.038 waives sovereign immunity to the extent it

authorizes “an action for declaratory judgment against a state agency to determine

the validity or applicability of a rule if it is alleged that the rule or its threatened

4

application interferes with or impairs, or threatens to interfere with or impair, a legal

right or privilege of the plaintiff.” Hernandez v. Tex. Dep't of Criminal Justice, 2014

WL 711028 at *2 (Tex.App.— Austin Feb. 19, 2014, no pet.) (internal quotations

omitted) (citing Tex. Gov’t Code § 2001.038(a), (c)). It is unnecessary, however, to

analyze whether the imposition of Special Condition X SISP constitutes a “rule”

under the statute because the Legislature explicitly exempted this type of case from

the APA. In § 2001.226, the Legislature specifically stated, “This chapter does not

apply to a rule or internal procedure of [TDCJ] or Texas Board of Criminal Justice

that applies to an inmate or any other person under the custody or control of the

department or to an action taken under that rule or procedure.” Tex. Gov’t Code §

2001.226. Additionally, the APA states that Section 2001.038 is inapplicable to “a

hearing or interview conducted by the Board of Pardons and Paroles or [TDCJ]

relating to the grant, rescission, or revocation of parole or other form of

administrative release.” Tex. Gov’t Code § 2001.223(3).

Offender Johnson’s sole allegation of interference with or impairment of a

legal right or privilege is based on the revocation of his parole as a result of violations

of Special Condition X SISP. As a matter of law, no action can lie under Section

2001.038 based on this alleged rule violation. Offender Johnson has pled facts

affirmatively demonstrating that his claim falls outside Section 2001.038, and his

claim is barred by sovereign immunity.

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CONCLUSION

The Texas Department of Criminal Justice is entitled to sovereign immunity.

Therefore, the trial court jurisdiction over them, and they appropriately dismissed

Offender Johnson’s petition. The judgment should be affirmed.

Respectfully submitted,

KEN PAXTON Attorney General of Texas

CHARLES E. ROY First Assistant Attorney General

JAMES E. DAVIS Deputy Attorney General for Civil Litigation

KAREN D. MATLOCK Assistant Attorney General Chief, Law Enforcement Defense Division

/s/ JENNIFER L. DANIEL JENNIFER L. DANIEL Assistant Attorney General Attorney-in-Charge State Bar No.24090063 Jennifer.Daniel@texasattorneygeneral.gov

P. O. Box 12548, Capitol Station Austin, Texas 78711 (512) 463-2080 / (512) 936-2109 Fax

ATTORNEYS FOR APPELLEE

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NOTICE OF ELECTRONIC FILING

I, JENNIFER L. DANIEL, Assistant Attorney General of Texas, do hereby certify that I have electronically submitted for filing, a true and correct copy of the above and foregoing Appellees’ Brief in accordance with the electronic filing system for the Third Court of Appeals on this the 8th day of September, 2015.

/s/ JENNIFER L. DANIEL JENNIFER L. DANIEL Assistant Attorney General

RULE 9.4(I) CERTIFICATE OF COMPLIANCE

I certify that this computer-generated document, accounting for Rule 9(i)(1)’s inclusions and exclusions, is 1,496 words, as calculated by Microsoft Word 2013, the computer program used to prepare this document.

/s/ JENNIFER L. DANIEL JENNIFER L. DANIEL Assistant Attorney General

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CERTIFICATE OF SERVICE

I, JENNIFER L. DANIEL, Assistant Attorney General of Texas, certify that a true and correct copy of the above and foregoing Appellees’ Brief has been served by placing it in the United States Mail, postage prepaid, on this the 8th day of September, 2015 , addressed to: Eddie Don Johnson TDCJ No. 00364033 TDCJ – James A. Lynaugh Unit 1098 S. Highway 2037 Fort Stockton, Texas 79735 Plaintiff Pro Se

/s/ JENNIFER L. DANIEL JENNIFER L. DANIEL Assistant Attorney General