James Boone v. David Gutierrez, Chairman, Texas Board of Pardons and Paroles

Opinion

ACCEPTED

03-16-00259-CV

13047938

THIRD COURT OF APPEALS

AUSTIN, TEXAS

10/4/2016 11:45:25 AM

JEFFREY D. KYLE

CLERK

NO. 03-16-00259-CV

In the Court of Appeals FILED IN 3rd COURT OF APPEALS

For the Third Supreme Judicial District of TexasAUSTIN, TEXAS 10/4/2016 3:16:25 PM

Austin, Texas JEFFREY D. KYLE Clerk

JAMES BOONE

Plaintiff-Appellant

v.

DAVID GUTIERREZ, CHAIRMAN, TEXAS BOARD OF PARDONS AND PAROLES Defendant-Appellee

On Appeal from the 201ST Judicial District Court of Travis County Texas.

BRIEF OF APPELLEE

KEN PAXTON KAREN D. MATLOCK Attorney General of Texas Chief, Law Enforcement Defense Division

JEFFREY C. MATEER CAROL M. GARCIA* First Assistant Attorney General Assistant Attorney General

BRANTLEY STARR Deputy First Assistant Attorney General

JAMES E. DAVIS P.O. Box 12548, Capitol Station Deputy Attorney General for Austin, Texas 78711 Civil Litigation (512) 463-2080 (512) 936-2109

ATTORNEYS FOR DEFENDANT-APPELLEE *Attorney of Record Oral Argument Waived

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CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons

and entities as described in Rule 38.1(a) of the Texas Rules of Appellate Procedure

have an interest in the outcome of this case. These representations are made in order

that the judges of this court may evaluate possible disqualification or recusal.

A. Parties

Plaintiff-Appellant: James Boone, TDCJ-ID# 658981 Ellis Unit 1697 FM 980 Huntsville, Texas 77343 Pro Se

Defendant-Appellee: David Gutierrez, Presiding Chair, Texas Board of Pardons and Paroles Attn: Bettie Wells, General Counsel Price Daniel, Sr. Bldg. 209 West 14th St., Suite 500 Austin, Texas

B. Attorneys

For Appellant: James Boone, TDCJ-ID# 658981 Ellis Unit 1697 FM 980 Huntsville, Texas 77343 Pro Se

For Appellee: Carol M. Garcia, Assistant Attorney General Office of the Attorney General, State of Texas Law Enforcement Defense Division P.O. Box 12548, Capitol Station Austin, Texas 78711

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/s/ Carol M. Garcia CAROL M. GARCIA Assistant Attorney General

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TABLE OF CONTENTS

PAGE No.

CERTIFICATE OF INTERESTED PERSONS .................................................. ii

TABLE OF CONTENTS .......................................................................................iv

INDEX OF AUTHORITIES .................................................................................. v

STATEMENT OF THE CASE ............................................................................... 2

ISSUES PRESENTED ............................................................................................. 3

SUMMARY OF THE ARGUMENT ..................................................................... 3

STANDARD OF REVIEW ..................................................................................... 3

ARGUMENT ............................................................................................................ 4

Reply to Issues One-Four: The district court properly granted appellee’s Motion to Dismiss Baseless Cause of Action ........................................ ........4

PRAYER ..................................................................................................................6

NOTICE OF ELECTRONIC FILING .................................................................. 8

CERTIFICATE OF SERVICE .............................................................................. 8

CERTIFICATE OF COMPLIANCE ................................................................... 9

iv

INDEX OF AUTHORITIES

Cases Johnson v. Rodriguez, 110 F.3d 299 (5th Cir. 1997) ..................................................................................6

Koenig v. Blaylock, No. 03-15-00705-CV, slip op. at 3-4, 2016 WL 3610950 (Tex. App.—Austin, July 01, 2016, no pet. h.).........................................................................................5

Madison v. Parker, 104 F.3d 765, 768 (5th Cir. 1997) ..........................................................................6

Orellana v. Kyle, 65 F.3d 28, 31-31 (5th Cir. 1995) ...........................................................................6

Wooley v. Schaffer, 447 S.W.3d 71, 76 (Tex. Civ. App.—Houston [14th Dist.] 2014).........................4

Statutes Texas Constitution Article 1, Section 19 ...................................................................2

Rules

Tex. R. Civ. P. 91a.3 ..................................................................................................4

Tex. R. Civ. P. 91a.6 ..................................................................................................4

v

NO. 03-16-00259-CV

In the Court of Appeals

For the Third Supreme Judicial District of Texas

Austin, Texas

JAMES BOONE

Plaintiff-Appellant,

v.

DAVID GUTIERREZ, CHAIRMAN, TEXAS BOARD OF PARDONS AND PAROLES Defendant-Appellee

On Appeal from the 201ST Judicial District Court of Travis County Texas.

BRIEF OF APPELLEE

TO THE HONORABLE JUDGES OF THE THIRD COURT OF APPEALS:

NOW COMES David Gutierrez, Presiding Chair, Texas Board of Pardons and

Paroles (TBPP) by and through his counsel, the Attorney General of Texas, and

submits this his Appellee’s Brief in response to the brief filed by appellant, James

Boone.

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I

STATEMENT OF THE CASE

Appellant James Boone is an offender currently incarcerated at the Ellis Unit

within the Texas Department of Criminal Justice, Walker County, Texas.

Proceeding pro se and informa pauperis, plaintiff filed his Original Due Process of

Law Complaint Pursuant to United States Constitution Amendment Fourteen; Texas

Constitution Article 1, Section 19 on December 29, 2015.1 David Gutierrez is the

presiding officer of the TBPP, a state agency.2 Appellee filed his Motion to Dismiss

Plaintiff’s Baseless Cause of Action on February 02, 2016.3 Appellant Boone is

seeking relief in the form of requiring the District Court to require the TBPP to

reverse its prior decision and grant appellant parole or to require the TBPP to provide

a special review hearing for appellant, considering him for parole release.4

On March 04, 2016, via telephone conference, the Honorable Amy Clark

Meacham of the 201st Judicial District Court, Travis County, Texas heard appellee

Gutierrez’ Motion to Dismiss Plaintiff’s Baseless Cause of Action.5 The District

Court subsequently granted appellee’s motion on April 04, 2016.6 Appellant filed

1 Clerk’s Record, Vol. 1, Pgs. 04-29. 2 Clerk’s Record, Vol. 1, Pg. 42. 3 Clerk’s Record, Vol. 1, Pgs. 42-45. 4 Clerk’s Record, Vol. 1, Pg. 13-14. 5 Reporter’s Record, Vol. 1. Pgs. 01-12. 6 Clerk’s Record, Vol. 1, Pg. 70.

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his Notice of Appeal on May 12, 2016.7 Appellant’s brief was received and filed by

this Court on April 21, 2016.

II

ISSUES PRESENTED

Reply to Issues One-Four: The district court properly granted appellee’s Motion to Dismiss Plaintiff’s Baseless Cause of Action.

III

SUMMARY OF THE ARGUMENT

1. The 45-day deadline in TRCP91a is directory, rather than mandatory, thus offering the District Court the ability to consider the motion in keeping with the prompt dismissal of baseless causes of action.

2. The district court properly granted appellee’s because appellant’s lawsuit, founded on the principle that he has a liberty interest in being released on parole, has no basis in law.

3. It has long been recognized that Texas law does not create a liberty interest in parole that is protected by the Due Process Clause, and Texas prisoners have no constitutional expectancy of release on parole.

IV

STANDARD OF REVIEW

Pursuant to Tex. R. Civ. P. 91a, a trial court may dismiss a cause of action

that (1) has no basis in law, (2) no basis in fact, or (3) on both of these grounds. Tex.

R. Civ. P. 91a.1.8 In deciding such a motion, a trial court may not consider evidence

7 Clerk’s Record, Vol. 1, Pgs. 84-85. 8 Appellant’s cause of action is not governed by Chapter 14 of the Texas Civil Practice and Remedies Code because parole issues are not governed by the Texas Department of Criminal Justice grievance process.

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and must decide the motion solely on a review of the content within the four corners

of the live pleading, including the attachments thereto.9 The determination of

whether a cause of action has any basis in law and in fact are legal questions that are

reviewed de novo.10

V

ARGUMENT

Reply to Issues One-Four: The district court properly granted appellee’s Motion to Dismiss Plaintiff’s Baseless Cause of Action.

Argument and Authorities

As stated previously, appellee Gutierrez’ Motion to Dismiss Plaintiff’s

Baseless Cause of Action was heard via a telephonic hearing on March 04, 2016.11

An Order granting the motion was issued on April 04, 2016.12 Appellant Boone

argues that the District Court failed to meet the requisites of Texas Rule of Civil

Procedure 91a.3 by failing to issue its Order by March 17, 2016.13 According to

TRCP 91a.3(c), the motion to dismiss must be granted or denied within 45 days after

the motion is filed.14 However, this Court very recently held that the “45-day period

9 Tex. R. Civ. P. 91a.6. 10 Wooley v. Schaffer, 447 S.W.3d 71, 76 (Tex. Civ. App.—Houston [14th Dist.] 2014). 11 Reporter’s Record, Vol. 1, Pgs. 01-12. 12 Clerk’s Record, Vol. 1, Pg. 70. 13 Appellant’s Brief, pg. 10. 14 Tex. R. Civ. P. 91a.3.

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during which a court ‘shall’ deny or grant a Rule 91a motion to dismiss is merely

directory rather than mandatory.”15

In the absence of any ‘words restraining’ action by the trial court beyond the time limit and the outlining of any consequences for failure to act therein, it is more reasonable to conclude that the time limit in this relatively new rule is not a hard deadline that prohibits the court from considering the substance of the motion to dismiss after the expiration of the 45-day time period but, rather, a provision included in the rule to promote the orderly and prompt dismissal of baseless causes of action.16 In this instance, while the hearing was held within the 45 day deadline, the District

Court took additional time to review the case prior to making its ruling shortly on

April 04, 2016.

As to the substance of the appeal, appellant Boone writes that appellee’s

failure to grant him parole release, or at the least, a special parole review, is

unconstitutional based on the fact that he “has only had one (1) major disciplinary

infraction (during 23 years of incarceration)”17 and in light of his light of

accomplishments.18 However, it has long been recognized that Texas law does not

create a liberty interest in parole that is protected by the Due Process Clause, and

15 Koenig v. Blaylock, No. 03-15-00705-CV, slip op. at 3-4, 2016 WL 3610950 (Tex. App.— Austin, July 01, 2016, no pet. h.). 16 Id., at 3. 17 Clerk’s Record, Vol. 1, Pg. 10. 18 Clerk’s Record, Vol. 1, Pg. 13.

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Texas prisoners have no constitutional expectancy of release on parole.19 It is

“axiomatic that because Texas prisoners have no protected liberty interest in parole

they cannot mount a challenge against any state parole review procedure on

procedural (or substantive) Due Process grounds.”20

Appellant Boone has the mistaken belief that he has a constitutionally

protected liberty interest in parole. Consequently, the trial court did not err when it

granted appellant Gutierrez’ Motion to Dismiss Plaintiff’s Baseless Cause of Action

and its judgment must be affirmed.

VI

PRAYER

In light of the foregoing, appellee David Gutierrez respectfully asks the court

to affirm the trial court’s judgment granting appellee’s Motion to Dismiss Plaintiff’s

Baseless Cause of Action.

Respectfully submitted, KEN PAXTON Attorney General of Texas

JEFFREY C. MATEER First Assistant Attorney General

19 See Orellana v. Kyle, 65 F.3d 28, 31-32 (5th Cir. 1995); Madison v. Parker, 104 F.3d 765, 768 th (5 Cir. 1997). 20 Johnson v. Rodriguez, 110 F.3d 299, 308 (5th Cir. 1997).

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BRANTLEY STARR Deputy First Assistant Attorney General

JAMES E. DAVIS Deputy Attorney General for Civil Litigation

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

CAROL M. GARCIA CAROL M. GARCIA Assistant Attorney General Law Enforcement Defense Division Attorney in Charge State Bar No. 07631680 carol.garcia@texasattorneygeneral.gov

P. O. Box 12548, Capitol Station Austin, Texas 78711 Phone: (512) 463-2080 Fax No: (512) 936-2109

ATTORNEYS FOR DEFENDANT- APPELLEE

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NOTICE OF ELECTRONIC FILING

I, CAROL M. GARCIA, Assistant General of Texas, certify that I have

electronically submitted for filing, a true and correct copy of the above and foregoing

Appellee’s Brief in accordance with the Electronic Case Files System of the Third

Court of Appeals, on the 04th day of October 2016.

/s/ CAROL M. GARCIA CAROL M. GARCIA Assistant Attorney General

CERTIFICATE OF SERVICE

I, CAROL M. GARCIA, Assistant Attorney General of Texas, certify that a

true and correct copy of the above and foregoing Appellee’s Brief has been served

by placing same in the United States Mail on this 04th day of October 2016,

addressed to:

James Boone, TDCJ-ID# 658981 Ellis Unit 1697 FM 980 Huntsville, Texas 77343 Appellant Pro Se

/s/ CAROL M. GARCIA CAROL M. GARCIA Assistant Attorney General

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CERTIFICATE OF COMPLIANCE With Type-Limitation, Typeface Requirements, and Type Style Requirements

1. This brief complies with the type-volume limitation of Fed. R. App. P.

32(a)(7)(B) because:

[X] this brief contains 1155 words, excluding the parts of the brief exempted by Fed. R. App.P.32 (a) (7) (B) (iii), or

[ ] this brief uses a monospaced typeface and contains [state the number of] lines of text, including the parts of the brief exempted by Fed. R. App.P. 32(z) (7) (B) (iii).

2. This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)

(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because:

[X] this brief has been prepared in a proportionally spaced typeface using MS Word for Window, version 2010 in Times Roman 14-point type face, or

[ ] this brief has been prepared in a monospaced typeface using [state name and version of work processing program] with [state number of characters per inch and name of type style].

/s/ Carol M. Garcia CAROL M. GARCIA

COUNSEL FOR DEFENDANT- APPELLEE

October 4, 2016