TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-01-00650-CV
Freddie Louis Brewer, Appellant
v.
Texas Department of Criminal Justice Board of Pardons and Paroles; Gerald Garrett; Lynn Brown; Linda Garcia; Rissie Owens; Alvin Shaw; Sandie Walker; and Lucinda Simons, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 353RD JUDICIAL DISTRICT NO. GN002172, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING
Freddie Louis Brewer appeals from the district court=s dismissal of his petition for writ of
mandamus as frivolous. Brewer requested that the court order the Texas Board of Pardons and Paroles to
implement parole guidelines; he also asked for a declaration of the meaning of the statutory requirement that
the Board implement parole guidelines. He contended that the Board=s failure to implement parole
guidelines was a statutory violation and therefore negligence per se. On appeal, Brewer complains that the
district court erred by allowing the Board to withdraw deemed admissions, dismissing his petition, and
otherwise denying him relief. We will affirm the judgment.
BACKGROUND Brewer, an inmate, requested that the district court order the Board to implement parole
guidelines as required by statute. See Tex. Gov=t Code Ann. ' 508.144 (West 1998). He moved for
summary judgment after the Board failed to timely deny his requests for admission. The deemed admissions
were that the Board knew it had to develop and implement parole guidelines, that its existing guidelines did
not satisfy the requirement, that he had requested implementation of new guidelines, that eligible inmates are
entitled to have their applications reviewed under properly implemented new guidelines, and that the Board
must notify inmates denied parole of that decision in writing.
The Board responded with a motion to strike the deemed admissions and a motion to
dismiss. The Board supplied affidavits attesting that its attorney did not receive the requests for admissions
timely because her legal assistant mistakenly did not forward the requests to her. The Board moved to
dismiss on grounds that Brewer did not comply with statutes governing suits by indigent inmates. See Tex.
Civ. Prac. & Rem. Code Ann. '' 14.001-.014 (West Supp. 2002). Among other charges, the Board
contended that his petition was frivolous because a writ of mandamus is not the proper means to shorten a
term of confinement; instead, a writ of habeas corpus is the proper method.
The district court struck the deemed admissions and dismissed the case as frivolous.
Brewer asserted that he received notice of this judgment more than twenty days after the judgment, and
moved the court to retain plenary jurisdiction.
DISCUSSION
2 Brewer raises four issues on appeal. He complains that the district court erred by allowing
the Board to withdraw its deemed admissions, by denying his motion for summary judgment, by dismissing
his petition, and by not holding a hearing on his motion to retain plenary jurisdiction.
We review a court=s decision to permit the withdrawal of deemed admissions for an abuse
of discretion. Stelly v. Papania, 927 S.W.2d 620, 622 (Tex. 1996). An abuse of discretion occurs when
a court acts without reference to guiding rules or principles, or acts arbitrarily or unreasonably. See
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex. 1985). A court may permit a party
to withdraw an admission if a court finds that the party shows good cause for the withdrawal, that the
parties relying on the admission will not be unduly prejudiced, and that the withdrawal will subserve the
presentation of the action=s merits. Tex. R. Civ. P. 198.3. A party can establish good cause by showing
that its failure to answer was accidental or the result of mistake, rather than intentional or the result of
conscious indifference. Stelly, 927 S.W.2d at 622.
We conclude that the district court did not abuse its discretion by permitting the Board to
withdraw its deemed admissions. The Board presented affidavit testimony from its lawyer and her legal
assistant showing that the legal assistant mistakenly failed to deliver the requests for admissions to the
lawyer; the Board argues that this was a mistake, not an intentional or consciously indifferent failure to
answer. The admissions were withdrawn on August 3, 2001, well before the trial date of January 28, 2002,
so Brewer would have had time to develop evidence on the issues had the case continued. The withdrawal
of the deemed admissions allowed the court to consider the merits of the cause of action without the
3 distortion from unintended, conclusory admissions that did not reflect the views of the party deemed to have
admitted them. The district court did not abuse its discretion by permitting their withdrawal.
Nor did the court err by denying the motion for summary judgment. Brewer=s motion relied
heavily on the deemed admissions. Without them, he did not show that there was no genuine issue as to any
material fact and that he was entitled to judgment as a matter of law; the court correctly denied his motion.
See Tex. R. Civ. P. 166a(c).
We review the dismissal of a lawsuit brought by an indigent inmate for an abuse of
discretion. See Barnum v. Munson, Munson, Pierce & Cardwell, P.C., 998 S.W.2d 284, 286 (Tex.
App.CDallas 1999, pet. denied). The district court need not rely on the defendant to assert frivolousness;
in fact, the district court may dismiss even before the defendant is served with process. Tex. Civ. Prac. &
Rem. Code Ann. ' 14.003(a) (West Supp. 2002). Factors in determining whether a suit is frivolous include
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.
4 Id. ' 14.003(b). Because the district court did not state the basis on which it found Brewer=s suit frivolous,
we must affirm on any basis supported by the record. See City of Houston v. Thomas, (Tex.
App.CHouston [1st Dist.] 1992, no writ).
Brewer contends that the Board has not complied with the requirement, passed in 1997, that
the board must implement guidelines for making parole decisions. See Tex. Gov=t Code Ann. '
508.144(a). He seeks a writ of mandamus ordering the Board to implement guidelines as required by the
Government Code. Brewer ignores the Texas Administrative Code section entitled AStandard Parole
Guidelines,@ promulgated by the Board and effective on May 1, 1995. See 37 Tex. Admin. Code ' 145.2
(2001);1 see also 20 Tex. Reg. 2681 (1995). Brewer apparently believes that, because the 1995
guidelines were effective more than two years before Government Code section 508.144 was effective, the
1 The administrative code provides in part as follows:
(1) To assist the parole decision-maker in its investigation of a possible parole release, the board has adopted standard parole guidelines that are the basis, but not the exclusive criteria upon which parole decisions are made.
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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-01-00650-CV
Freddie Louis Brewer, Appellant
v.
Texas Department of Criminal Justice Board of Pardons and Paroles; Gerald Garrett; Lynn Brown; Linda Garcia; Rissie Owens; Alvin Shaw; Sandie Walker; and Lucinda Simons, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 353RD JUDICIAL DISTRICT NO. GN002172, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING
Freddie Louis Brewer appeals from the district court=s dismissal of his petition for writ of
mandamus as frivolous. Brewer requested that the court order the Texas Board of Pardons and Paroles to
implement parole guidelines; he also asked for a declaration of the meaning of the statutory requirement that
the Board implement parole guidelines. He contended that the Board=s failure to implement parole
guidelines was a statutory violation and therefore negligence per se. On appeal, Brewer complains that the
district court erred by allowing the Board to withdraw deemed admissions, dismissing his petition, and
otherwise denying him relief. We will affirm the judgment.
BACKGROUND Brewer, an inmate, requested that the district court order the Board to implement parole
guidelines as required by statute. See Tex. Gov=t Code Ann. ' 508.144 (West 1998). He moved for
summary judgment after the Board failed to timely deny his requests for admission. The deemed admissions
were that the Board knew it had to develop and implement parole guidelines, that its existing guidelines did
not satisfy the requirement, that he had requested implementation of new guidelines, that eligible inmates are
entitled to have their applications reviewed under properly implemented new guidelines, and that the Board
must notify inmates denied parole of that decision in writing.
The Board responded with a motion to strike the deemed admissions and a motion to
dismiss. The Board supplied affidavits attesting that its attorney did not receive the requests for admissions
timely because her legal assistant mistakenly did not forward the requests to her. The Board moved to
dismiss on grounds that Brewer did not comply with statutes governing suits by indigent inmates. See Tex.
Civ. Prac. & Rem. Code Ann. '' 14.001-.014 (West Supp. 2002). Among other charges, the Board
contended that his petition was frivolous because a writ of mandamus is not the proper means to shorten a
term of confinement; instead, a writ of habeas corpus is the proper method.
The district court struck the deemed admissions and dismissed the case as frivolous.
Brewer asserted that he received notice of this judgment more than twenty days after the judgment, and
moved the court to retain plenary jurisdiction.
DISCUSSION
2 Brewer raises four issues on appeal. He complains that the district court erred by allowing
the Board to withdraw its deemed admissions, by denying his motion for summary judgment, by dismissing
his petition, and by not holding a hearing on his motion to retain plenary jurisdiction.
We review a court=s decision to permit the withdrawal of deemed admissions for an abuse
of discretion. Stelly v. Papania, 927 S.W.2d 620, 622 (Tex. 1996). An abuse of discretion occurs when
a court acts without reference to guiding rules or principles, or acts arbitrarily or unreasonably. See
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex. 1985). A court may permit a party
to withdraw an admission if a court finds that the party shows good cause for the withdrawal, that the
parties relying on the admission will not be unduly prejudiced, and that the withdrawal will subserve the
presentation of the action=s merits. Tex. R. Civ. P. 198.3. A party can establish good cause by showing
that its failure to answer was accidental or the result of mistake, rather than intentional or the result of
conscious indifference. Stelly, 927 S.W.2d at 622.
We conclude that the district court did not abuse its discretion by permitting the Board to
withdraw its deemed admissions. The Board presented affidavit testimony from its lawyer and her legal
assistant showing that the legal assistant mistakenly failed to deliver the requests for admissions to the
lawyer; the Board argues that this was a mistake, not an intentional or consciously indifferent failure to
answer. The admissions were withdrawn on August 3, 2001, well before the trial date of January 28, 2002,
so Brewer would have had time to develop evidence on the issues had the case continued. The withdrawal
of the deemed admissions allowed the court to consider the merits of the cause of action without the
3 distortion from unintended, conclusory admissions that did not reflect the views of the party deemed to have
admitted them. The district court did not abuse its discretion by permitting their withdrawal.
Nor did the court err by denying the motion for summary judgment. Brewer=s motion relied
heavily on the deemed admissions. Without them, he did not show that there was no genuine issue as to any
material fact and that he was entitled to judgment as a matter of law; the court correctly denied his motion.
See Tex. R. Civ. P. 166a(c).
We review the dismissal of a lawsuit brought by an indigent inmate for an abuse of
discretion. See Barnum v. Munson, Munson, Pierce & Cardwell, P.C., 998 S.W.2d 284, 286 (Tex.
App.CDallas 1999, pet. denied). The district court need not rely on the defendant to assert frivolousness;
in fact, the district court may dismiss even before the defendant is served with process. Tex. Civ. Prac. &
Rem. Code Ann. ' 14.003(a) (West Supp. 2002). Factors in determining whether a suit is frivolous include
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.
4 Id. ' 14.003(b). Because the district court did not state the basis on which it found Brewer=s suit frivolous,
we must affirm on any basis supported by the record. See City of Houston v. Thomas, (Tex.
App.CHouston [1st Dist.] 1992, no writ).
Brewer contends that the Board has not complied with the requirement, passed in 1997, that
the board must implement guidelines for making parole decisions. See Tex. Gov=t Code Ann. '
508.144(a). He seeks a writ of mandamus ordering the Board to implement guidelines as required by the
Government Code. Brewer ignores the Texas Administrative Code section entitled AStandard Parole
Guidelines,@ promulgated by the Board and effective on May 1, 1995. See 37 Tex. Admin. Code ' 145.2
(2001);1 see also 20 Tex. Reg. 2681 (1995). Brewer apparently believes that, because the 1995
guidelines were effective more than two years before Government Code section 508.144 was effective, the
1 The administrative code provides in part as follows:
(1) To assist the parole decision-maker in its investigation of a possible parole release, the board has adopted standard parole guidelines that are the basis, but not the exclusive criteria upon which parole decisions are made.
(2) The standard parole guidelines shall include:
(A) current offense or offenses; (B) time served; (C) the risk factors (consideration for public safety); (D) institutional adjustment; (E) the criminal history; (F) official information supplied by trial officials including victim impact statements; (G) information in support of parole.
37 Tex. Admin. Code ' 145.2(b).
5 existing guidelines cannot serve to satisfy the Government Code requirement that the Board adopt
guidelines.
Brewer ignores the fact that the enactment of section 508.144 was essentially a recodification
of an existing and similar requirement from a precursor statute. The former statute, in effect when the
Board=s 1995 guidelines were adopted, provided as follows:
developed according to an acceptable research method and shall be based on the seriousness of the offense and the likelihood of favorable parole outcome. The board shall review the parole guidelines periodically and make reports on those reviews to the Legislative Criminal Justice Board. If a member of the board deviates from the parole guidelines in casting a vote on a parole decision, the member shall produce a brief written statement describing the circumstances regarding the departure from the guidelines and place a copy of the statement in the file of the inmate for whom the parole decision was made. The board shall keep a copy of each statement in a central location.
1993 Tex. Gen. Laws at 4307-08. The recodification2 essentially placed the former statute into an outline
structure; the substance of the requirements regarding the Board=s development of parole guidelines did not
2 The recodified statute provides, in relevant part, that the Board shall:
(1) develop according to an acceptable research method the parole guidelines that are the basic criteria on which a parole decision is made;
(2) base the guidelines on the seriousness of the offense and the likelihood of a favorable parole outcome;
(3) implement the guidelines; and
(4) review the guidelines periodically.
6 change. Compare Act of May 28, 1993, 73rd Leg., R.S., ch. 988, ' 10.04, sec. 8(f), 1993 Tex. Gen.
Laws 4274, 4307-08 (codified at Tex. Code Crim. Proc. 42.18 ' 8(f), repealed by Act of May 8, 1997,
75th Leg., R.S., ch. 165, ' 12.22, 1997 Tex. Gen. Laws 327, 443) with Act of May 8, 1997, 75th Leg.,
R.S., ch. 165, ' 12.22, sec. 508.144, 1997 Tex. Gen. Laws 327, 425 (codified at Tex. Gov=t Code Ann.
' 508.144). Indeed, the legislature expressly stated that the 1997 act was nonsubstantive. 1997 Tex. Gen.
Laws at 327. The recodification did not require that the Board pass new guidelines, only that it have
guidelines. The guidelines adopted in 1995 were not invalidated simply because the 75th Legislature
reformatted and relocated the requirement that there be guidelines. To the extent that Brewer argues that
the statute=s meaning is uncertain, the recodification using essentially the same words means that the Board
had to give the new statute the same meaning as it did the repealed statute. See Fleming Foods, Inc. v.
Rylander, 6 S.W.3d 278, 282 (Tex. 1999).
Because the Board already had parole guidelines in 1997, it has not shirked its duty under the
recodification to implement guidelines, it did not commit negligence per se by violating a statutory duty to
implement guidelines, and the district court could not order it to adopt guidelines when it already had them.
A declaration of the meaning of the requirement to implement guidelines is unnecessary; the guidelines were
implemented in 1995, and the 1997 recodification did not require new action by the Board. Brewer=s claim
had no arguable basis in law or fact and no realistic chance of success, and the district court did not abuse
its discretion by dismissing his petition as frivolous.
Tex. Gov=t Code Ann. ' 508.144(a).
7 Brewer=s final issue regarding the district court=s failure to hold a hearing regarding when he
received notice of the dismissal does not require reversal. See Tex. R. Civ. P. 306a. The hearing allows
litigants to prove they received late notice of judgment so that they can delay the onset of the appellate
timetables until the date of notice. See id. The ultimate impact of a Rule 306a hearing is that an untimely
appeal is deemed timely and may proceed. Despite the court=s failure to hold a 306a hearing, we have
considered the merits of Brewer=s appeal. He has shown no harm.
CONCLUSION
Having resolved all issues in favor of the district court=s decisions, we affirm the dismissal of
Brewer=s petition.
David Puryear, Justice
Before Justices Kidd, Patterson and Puryear
Affirmed
Filed: April 25, 2002
Do Not Publish