Opinion issued August 28, 2014
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-13-00678-CV ——————————— WILLIAM BARBE BISHOP, Appellant V. RISSIE OWENS AND CONRITH DAVIS, Appellees
On Appeal from the 412th Judicial District Court Brazoria County, Texas Trial Court Case No. 646341
MEMORANDUM OPINION
This appeal arises from a section 1983 suit for declaratory and injunctive
relief by appellant William Barbe Bishop, a prisoner of the Texas Department of
Criminal Justice, against appellees Rissie Owens and Conrith Davis of the Texas
Board of Pardons and Paroles. Bishop claimed that when considering him for parole, the Board has wrongly applied statutes and regulations that were adopted
subsequent to his conviction. He argued that these statutes and regulations either
did not apply to him by their terms or were being applied retroactively in violation
of the ex post facto clauses of the Texas and federal constitutions. Owens and
Davis successfully moved for traditional summary judgment. We affirm.
Background
In 1987, Bishop pleaded guilty to aggravated theft; the court deferred
adjudication and placed him on community supervision for three years. On August
14, 1989, Bishop committed aggravated sexual assault and aggravated robbery.
The State moved to revoke community supervision on the 1987 aggravated theft,
and Bishop was sentenced to imprisonment for 10 years. Bishop pleaded guilty to
the later offenses of aggravated sexual assault and aggravated robbery and was
sentenced to 30 years in prison, to commence upon the completion of his sentence
for aggravated theft. As he has now completed his sentence for aggravated theft,
Bishop’s current incarceration stems from the aggravated robbery and aggravated
sexual assault he committed August 14, 1989.
Bishop first became eligible for parole in 1997. Since that time, the Board of
Pardons and Paroles has reviewed Bishop’s case and denied him parole on several
occasions. However, in March 2004 the Board voted to parole Bishop contingent
upon completion of a prerelease program for sex offenders. Although Bishop
2 completed this program, upon receipt of additional information the Board reversed
its decision in October 2004. The Board has since reviewed Bishop for parole at
three-year intervals and denied release each time.
In August 2011, proceeding pro se, Bishop sued Owens and Davis in both
their official and individual capacities. He contended that the Board has been
incorrectly applying statues and regulations adopted after his 1989 offense in
reviewing him for parole. He prayed for a declaratory judgment and injunction but
did not seek damages.
During the course of litigation, Bishop filed several motions to compel and
motions for sanctions alleging that Owens and Davis were not complying with his
discovery requests. The trial court made several attempts to schedule telephone
conferences to consider the motions. However, the hearings were repeatedly reset
and ultimately consolidated with a summary-judgment hearing. The court never
ruled on the discovery motions.
Owens and Davis moved for traditional summary judgment. The trial court
initially entered an order denying the motion. Bishop then filed a motion for
traditional summary judgment, and Owens and Davis filed a motion to reconsider
their motion.
The trial court granted the motion to reconsider and entered summary
judgment in favor of Owens and Davis. The court also denied Bishop’s motion for
3 summary judgment. Bishop filed a motion for new trial and a motion to reopen
discovery, both of which the trial court denied. Bishop then timely filed notice of
appeal.
Analysis
Bishop, continuing to act pro se, argues that the trial court erred by granting
summary judgment for Owens and Davis and by denying his motion for summary
judgment. His arguments address multiple statutory provisions and administrative
regulations that he contends the Board has incorrectly applied to him. In each case,
he contends that the Board has either violated the ex post facto clauses of the Texas
and federal constitutions or has failed to heed words of limitation in the statute
itself.
Traditional summary judgments are reviewed de novo. Valence Operating
Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). The movant has the burden of
showing that no genuine issue of material fact exists and that it is therefore entitled
to judgment as a matter of law. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546,
548 (Tex. 1985). “When reviewing a summary judgment, we take as true all
evidence favorable to the nonmovant, and we indulge every reasonable inference
and resolve any doubts in the nonmovant’s favor.” Provident Life & Accident Ins.
Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). “When a trial court’s order
granting summary judgment does not specify the grounds relied upon, the
4 reviewing court must affirm summary judgment if any of the summary judgment
grounds are meritorious.” FM Props. Operating Co. v. City of Austin, 22 S.W.3d
868, 872 (Tex. 2000).
“When both sides move for summary judgment and the trial court grants one
motion and denies the other, the reviewing court should review both sides’
summary judgment evidence and determine all questions presented.” Id. “The
reviewing court should render the judgment that the trial court should have
rendered.” Id.
In this state, “No bill of attainder, ex post facto law, retroactive law, or any
law impairing the obligation of contracts, shall be made.” TEX. CONST. art. I, § 16.
The federal constitution provides, “No Bill of Attainder or ex post facto Law shall
be passed.” U.S. CONST. art. I, § 9, cl. 3.
Texas courts have adopted the same definition of the ex post facto provision
found in the Texas Constitution that the United States Supreme Court has used to
interpret the ex post facto clause of the federal constitution. See Grimes v. State,
807 S.W.2d 582, 586 (Tex. Crim. App. 1991) (citing Collins v. Youngblood, 497
U.S. 37, 110 S. Ct. 2715 (1990)). Thus, Texas courts apply the following
formulation to determine whether a law is barred as ex post facto:
[A]ny statute which punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission, or which deprives one
5 charged with crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto.
Collins, 497 U.S. at 42, 110 S. Ct. at 2719 (quoting Beazell v. Ohio, 269 U.S. 167,
169–70, 46 S. Ct. 68, 68–69 (1925)).
In some cases, retroactive changes in parole laws may violate the ex post
facto clause. Garner v. Jones, 529 U.S. 244, 250, 120 S. Ct. 1362, 1367 (2000); Ex
parte Alegria, 464 S.W.2d 868, 874 (Tex. Crim. App. 1971). The controlling
inquiry is whether retroactive application of the parole law at issue creates “a
sufficient risk of increasing the measure of punishment attached to the covered
crimes.” Garner, 529 U.S. at 250, 120 S. Ct. at 1367; accord Johnson v. State, 930
S.W.2d 589, 591 (Tex. Crim. App. 1996). “A statutory amendment that creates
only the most speculative and attenuated possibility of producing the prohibited
effect of increasing the measure of punishment does not violate the Ex Post Facto
Clause.” Johnson, 930 S.W.2d at 591; accord Cal. Dep’t of Corrs. v. Morales, 514
U.S. 499, 509, 115 S. Ct. 1597, 1603 (1995).
In addition to proscribing ex post facto laws as the federal constitution does,
the Texas Constitution also contains a general prohibition on retroactive laws. See
Ex parte Johnson, 697 S.W.2d 605, 610 (Tex. Crim. App. 1985); see also
Robinson v. Crown Cork & Seal Co., 335 S.W.3d 126, 137–38 (Tex. 2010)
(explaining that constitutional prohibitions on ex post facto laws concern penal
legislation while the Texas Constitution’s ban on retroactive laws is a general
6 proscription). To the extent the ex post facto provision of the Texas Constitution is
limited to penal laws, however, that does not necessarily mean that the retroactive
law provision does not apply in a criminal context. The Court of Criminal Appeals
has reserved judgment on whether the retroactive law provision applies to criminal
cases. See Grimes, 807 S.W.2d at 587 (assuming without deciding that the
retroactive law provision applied to the case before the court). The court noted,
however, that the ban on retroactive laws has “never been made applicable to
statutes merely affecting matters of procedure which do not disturb vested,
substantive rights.” Id.; see also Holder v. Wood, 714 S.W.2d 318, 319 (Tex. 1986)
(“Laws may not operate retroactively to deprive or impair vested substantive rights
acquired under existing laws. However, changes in statutes affecting remedies or
procedure may be applied retroactively.” (citations omitted)).
I. Former mandatory language governing parole decision
In his first two issues, Bishop argues that the Board has incorrectly applied
discretionary standards of release established under the current Texas Government
and Administrative Codes that conflict with the mandatory standards of release in
effect at the time of his offense.
Under current law, the statutory provisions governing the Board of Pardons
and Paroles are located in chapter 508 of the Texas Government Code. At the time
of Bishop’s offense, these provisions were located in article 42.18 of the Code of
7 Criminal Procedure. See Act of June 11, 1985, 69th Leg., R.S., ch. 427, § 2, 1985
Tex. Gen. Laws 1531, 1549 (adding article 42.18 to Code).
In 1987, the 70th Legislature passed Senate Bill No. 341, which amended
section 8 of article 42.18 and added the mandatory language on which Bishop
relies. Act of June 19, 1987, 70th Leg., R.S., ch. 1101, § 7, 1987 Tex. Gen. Laws,
3750, 3754–60. S.B. 341 provided:
The board shall release a person on parole during the tentative parole month established for the person unless the board determines that the person’s release will increase the likelihood of harm to the public or that the person has failed to progress in the manner required by the board . . . .
Id. § 7, at 3754 (emphasis supplied).
However, this mandatory language was replaced with discretionary language
by the 71st Legislature prior to Bishop’s offenses. The word “shall” was replaced
with the word “may” by House Bill 2335, and the change was made effective as of
the date of enactment of the statute on June 15, 1989. Act of June 15, 1989, 71st
Leg., R.S., ch. 785, §§ 5.01, 9.01(c)(1), 1989 Tex. Gen. Laws, 3471, 3536, 3557.
The current Government Code thus states, “A parole panel may release an inmate
on parole during the parole month established for the inmate if the panel
determinate that the inmate’s release will not increase the likelihood of harm to the
public.” TEX. GOV’T CODE ANN. § 508.141 (West 2012) (emphasis supplied).
8 Although H.B. 2335 did not replace every instance of the word “shall”
governing the Board at the time of Bishop’s offense, see id. § 5.01, at 3536–42,
none of the other instances to which Bishop alludes in his appellate brief restricted
the Board’s discretion to release an inmate or created an entitlement to release
under certain conditions. Rather, the other uses of the word “shall” referenced by
Bishop merely mandated that the Board follow certain procedures in handling
cases, for instance, that it “shall establish a tentative parole month for the prisoner .
. . and a proposed program of measurable institutional progress,” and did not
change a prisoner’s eligibility for parole or alter the Board’s discretion to grant it.
See Act of June 19, 1987, § 7, at 3756. Changes to procedure that do not make
more burdensome the punishment for a crime or that create only the most
speculative and attenuated possibility of increasing the measure of punishment do
not violate the Texas or federal prohibitions on ex post facto laws. Garner, 529
U.S. at 250–51, 120 S. Ct. at 1367–68; accord Johnson, 930 S.W.2d at 591.
Likewise, assuming without deciding that the retroactive law provision of the
Texas Constitution applies in the criminal context, a statutory change that is only
procedural or remedial and that does not affect vested, substantive rights is not a
prohibited retroactive law. See Grimes, 807 S.W.2d at 587.
Bishop also argues that regulations in effect at the time of his offense
compelled the Board to hold hearings in panels of three commissioners. In
9 contrast, the current Government Code requires that all members of the Board vote
in order to release an inmate who, like Bishop, was convicted of aggravated sexual
assault. TEX. GOV’T CODE ANN. § 508.046 (West 2012). Thus, Bishop contends that
the Board has wrongfully required all of its members to vote on his release rather
than simply a panel of three.
The former rule relied upon by Bishop stated, “A parole panel shall be
composed of any three parole commissioners, or the parole board, or any
combination thereof, as constituted from time to time by the board.” 12 Tex. Reg.
730 (1987) (proposed Jan. 20, 1987). Bishop emphasizes the use of the word
“shall,” but on its face, the rule does not require that the Board review cases in
panels of three; it also authorizes the entire “parole board” to act as a panel. See id.
Bishop further maintains that the Board may not condition his release on
completion of a rehabilitation program as authorized by the current Texas
Administrative Code. 37 TEX. ADMIN. CODE § 145.12(4)(C) (2014) (Tex. Bd. Of
Pardons & Paroles, Action upon Review). He contends that provisions of the
Administrative Code and Code of Criminal Procedure in effect at the time of his
offense did not permit this procedure. However, Bishop has not directed us to any
former regulations or statutes that prohibited the Board from exercising its
discretion in this manner. On the contrary, Bishop erroneously argues that because
the Board was authorized to impose post-release participation in counseling
10 programs, it was thus barred from conditioning release on completion of a
rehabilitation program. See Act of June 19, 1987, § 7, at 3757.
Lastly, Bishop contends that the Board must release him if a majority of
Board members approve parole, and that the Board may not apply the current
provisions of the Government Code that require a supermajority vote to parole a
person convicted of sexual assault. See TEX. GOV’T CODE ANN. § 508.046. He
emphasizes that at the time of his offense, Board regulations specified that all
decisions “shall be by a majority vote of the members voting.” 12 Tex. Reg. 230
(1987), adopted 12 Tex. Reg. 730 (1987).
Texas courts have previously considered and rejected challenges to the
application of the supermajority requirement of section 508.046 under the ex post
facto clause. Teague v. Livingston, No. 01–10–00075–CV, 2010 WL 4056853, at
*4 (Tex. App.—Houston [1st Dist.] Oct. 14, 2010, no pet.) (mem. op.); Nabelek v.
Garrett, No. 14–01–00764–CV, 2003 WL 21710243, at *2 (Tex. App.—Houston
[14th Dist.] July 24, 2003, pet. denied) (mem. op.). In reaching that conclusion,
this court adhered to the reasoning of the Fifth Circuit in Wallace v. Quarterman,
516 F.3d 351 (5th Cir. 2008). See Teague, 2010 WL 4056853, at *4.
The Wallace court upheld the supermajority requirement of section 508.046
against a Texas prisoner’s ex post facto challenge. 516 F.3d at 356. As the court
explained, in general, “Rules affecting eligibility for parole may violate the clause,
11 but discretionary rules affecting suitability do not.” Id. at 355. The court found that
the voting requirements of section 508.046 affected suitability, not eligibility for
parole. Id. The court cautioned, however, that “parole board ‘discretion does not
displace the Ex Post Facto Clause’s protections.’” Id. at 356 (quoting Garner, 529
U.S. at 253, 120 S. Ct. at 1369). A change in voting requirements could create
“more than a ‘speculative, attenuated risk of affecting a prisoner’s actual term of
confinement.’” Id. (quoting Morales, 514 U.S. at 508–09, 115 S. Ct. at 1603).
Therefore, “a court must look to the specific facts of the case, if a claimant has
presented such facts, to determine whether a new law produces a ‘sufficient risk’
of increased confinement.” Id. (emphasis supplied). The court further expounded:
When the rule does not by its own terms show a significant risk, the respondent must demonstrate, by evidence drawn from the rule’s practical implementation by the agency charged with exercising discretion, that its retroactive application will result in a longer period of incarceration than under the earlier rule.
Id. (quoting Garner, 529 U.S. at 255, 120 S. Ct. at 1370).
Both this court in Teague and the Fifth Circuit in Wallace concluded that on
its face, the supermajority requirement of section 508.046 does not create a
sufficient risk of increased confinement. Id.; Teague, 2010 WL 4056853, at *4.
Furthermore, like the appellants in Teague and Wallace, Bishop has not directed us
to evidence of the rule’s practical implementation to establish that retroactive
application of section 508.046 will result in a longer period of incarceration. See
12 Wallace, 516 F.3d at 356; Teague, 2010 WL 4056853, at *4. Like the appellant in
Teague, Bishop has not argued or presented evidence that he would be released by
a Board making decisions by a simple majority vote. See Teague, 2010 WL
4056853, at *4. On the contrary, Owens and Davis presented evidence that each
time Bishop was denied parole, including when the Board rescinded its prior
decision to grant parole, its vote was unanimous. Accordingly, the trial court did
not err in granting summary judgment in favor of Owens and Davis. * Bishop’s first
and second issues are overruled.
II. Frequency of parole review
In his third and fourth issues, Bishop argues that replacing a statutorily
mandated right to annual parole review with a right to review at longer intervals
constitutes an ex post facto violation. Under current regulations, the Board will set
the next hearing for an inmate convicted of aggravated sexual assault 36 months
after a hearing at which parole is denied. 37 TEX. ADMIN. CODE § 145.15(a)(3)(A)
* Although this court in Teague did not consider whether the retroactive law provision of the Texas Constitution would yield a different result, we conclude, assuming without deciding that it applies, that it would not because a change in voting requirements is merely procedural and does not affect a substantive, vested right. See Grimes v. State, 807 S.W.2d 582, 587 (Tex. Crim. App. 1991); Butnaru v. Ford Motor Co., 84 S.W.3d 198, 205 (Tex. 2002) (holding that retroactive law provision did not bar law that altered initial adjudicating forum because the parties did not have a vested right in tribunal that would decide their case); Subaru of Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 219 (Tex. 2002) (“[N]o one has a vested right in the continuance of present laws in relation to a particular subject . . . .”).
13 (2014) (Tex. Bd. of Pardons & Paroles, Action upon Review; Extraordinary Vote).
Bishop claims that the following regulation of the Board in effect at the time of his
offense entitled him to a hearing one year after each denial of parole:
If the parole panel recommends parole and parole is denied by the board, the next parole review month and year of the inmate will be computed by the board from the prior parole review month and year to the discharge date and calculated as follows . . . set off one year from prior parole review month and year . . . .
5 Tex. Reg. 3879 (1980), amended by 12 Tex. Reg. 238 (1987), adopted 12 Tex.
Reg. 733 (1987) (emphasis supplied). A careful reading of this provision does not
support Bishop’s assertion that the law in effect at the time of his offense mandated
annual review. Rather, if a panel of the Board had recommended parole but the full
Board had denied parole, the rule required the Board to set the next parole hearing
for one year later. In other words, it did not mandate annual review in all cases
when parole was denied, but only in a subset of cases in which a panel’s decision
was overruled by the full Board. As such, Bishop’s assertion that the law in effect
at the time of his offense entitled him to annual review is incorrect. Bishop’s third
and fourth issues are overruled.
III. Effect of Senate Bill 60 on Government Code Section 508.046
Section 508.046 of the Government Code currently specifies that in order to
release an inmate on parole who was convicted of aggravated sexual assault, all
members of the Board must vote on the inmate’s release and two-thirds of the
14 members must vote in favor of parole. TEX. GOV’T CODE ANN. § 508.046.
Aggravated sexual assault was added to the list of offenses subject to these
requirements in 1995. Act of May 29, 1995, 74th Leg., R.S., ch. 250, § 2, 1995
Tex. Gen. Laws 2176, 2176. The change was made retroactive and applies “to a
defendant convicted of an offense committed before, on, or after the effective date
of this Act.” Id. § 5, at 2177.
In 2005, the Legislature enacted Senate Bill 60. Act of June 17, 2005, 79th
Leg., R.S., ch. 787, 2005 Tex. Gen. Laws 2705. In capital murder cases in which
the prosecution seeks the death penalty, S.B. 60 allows the jury to sentence the
defendant to life without eligibility for parole. Id. § 1, at 2705. If the prosecution
does not seek the death penalty, then the judge is required to sentence a defendant
convicted of capital murder to life without parole. Id. § 6, at 2706. Since S.B. 60
eliminated the possibility of parole for those guilty of capital murder, it also
amended sections of the law dealing with parole for these offenders, including
section 508.046 of the Government Code. Id. §§ 3–5, at 2705–06. Specifically,
S.B. 60 eliminated the words “capital felony” from section 508.046 while making
no other changes to that section. Id. § 3, at 2705.
Bishop’s fifth issue is based on his reading of section 17 of S.B. 60, which
addressed the act’s retroactivity:
(a) The change in law made by this Act applies only to an offense committed on or after the effective date of this Act. For purposes of
15 this section, an offense is committed before the effective date of this Act if any element of the offense occurs before the effective date.
(b) An offense committed before the effective date of this Act is covered by the law in effect when the offense was committed, and the former law is continued in effect for that purpose.
Id. § 17, at 2709 (emphasis supplied). Bishop argues that the emphasized clause
amended the law to reverse the provision in S.B. 45 that made section 508.046
retroactively applicable to parole review of those convicted of aggravated sexual
assault. He contends that the clause, literally read, is of general application and that
to read it otherwise would make it superfluous and repetitive.
In construing statutes, “our primary objective is to ascertain and give effect
to the Legislature’s intent.” Hernandez v. Ebrom, 289 S.W.3d 316, 318 (Tex.
2009). “We give effect to legislative intent as it is expressed by the statute’s
language and the words used, unless the context necessarily requires a different
construction or a different construction is expressly provided by statute.” Id.
“Unambiguous statutory language is interpreted according to its plain language
unless such an interpretation would lead to absurd results.” Id.
S.B. 60 was a law about capital murder and did not alter the law pertaining
to any other offense. See 20801, Inc. v. Parker, 249 S.W.3d 392, 396 (Tex. 2008)
(“We determine legislative intent from the entire act and not just isolated
portions.”). In particular, nothing in S.B. 60 addressed parole for those convicted
of aggravated sexual assault. Indeed, S.B. 60 made no changes to section 508.046
16 of the Government Code except to delete the words “capital murder.” In the
context of a law solely regarding capital murder, a correct reading of the word
“offense” in section 17 confines it to the offense of capital murder. See City of San
Antonio v. City of Boerne, 111 S.W.3d 22, 29 (Tex. 2003). When general words,
such as “offense,” follow specific words such as “capital murder,” the “general
words are not to be construed in their widest meaning or extent.” Stanford v.
Butler, 142 Tex. 692, 698, 181 S.W.2d 269, 272 (1944); accord City of San
Antonio, 111 S.W.3d at 29. “[T]he meaning of particular words in a statute may be
ascertained by reference to other words associated with them in the same statute.”
City of San Antonio, 111 S.W.3d at 29.
Furthermore, section 17 as a whole limits the temporal effect of S.B. 60. For
instance, it refers to “the change in law made by this Act” and offenses committed
“before the effective date of this Act.” Act of June 17, 2005, § 17, at 2709.
Provisos that limit the application of a statute are not to be interpreted as enacting
independent changes to laws not addressed by the enacting portions of the statute.
See ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION
OF LEGAL TEXTS 154–55 (2012) (“It would be dangerous to charge upon Congress
an intention to enact independent legislation so important in its results, because of
its use of a few superfluous words in a clause of a statute, named and having all of
17 the characteristics of a proviso.” (quoting Pennington v. United States, 48 Ct. Cl.
408, 415 (1913))).
Nor is Bishop’s reading required by the canon against surplusage. The canon
against surplusage “assists only where a competing interpretation gives effect to
every clause and word of a statute.” Marx v. Gen. Revenue Corp., 133 S. Ct. 1166,
1177 (2013); see also SCALIA & GARNER, supra, at 176 (explaining canon against
surplusage applies only when one reading avoids leaving redundant words while
another reading does not). Although Bishop’s reading of subsection (b) would
endow it with a meaning distinct from that of subsection (a), the generality of
subsection (b) on his reading would still render subsection a redundant. Bishop’s
reading is no cure for the belt–and–suspenders drafting employed by the
Legislature in section 17 and thus does not draw support from the canon against
surplusage. See City of San Antonio, 11 S.W.3d at 29 (providing that “effect must
be given to every sentence, clause, and word of a statute” but only “when possible
to do so”); SCALIA & GARNER, supra, at 176–77 (“Sometimes drafters do repeat
themselves and do include words that add nothing of substance . . . .”).
In sum, the text of section 17, when considered in context, does not express
intent to repeal the retroactivity provision of S.B. 75 or otherwise alter the
application of section 508.046 of the Government Code to parole proceedings for
those convicted of aggravated sexual assault. Bishop’s fifth issue is overruled.
18 IV. Remaining issues
As his sixth issue, Bishop contends that the trial court erred in granting the
defendants’ motion for summary judgment “based upon a narrowly presented
definition of applicable law.” He argues that his claims should have been decided
by the trial court under what he asserts is the correct legal standard.
Whether the trial court actually applied the correct legal standard is not
strictly at issue when an appellate court reviews a summary judgment. Summary
judgments are reviewed de novo, and when the trial court does not state its grounds
for granting summary judgment, the appellate court will affirm if any of the
theories presented to the trial court are meritorious. See Valence Operating, 164
S.W.3d at 661; FM Props., 22 S.W.3d at 872. We have addressed Bishop’s
argument that summary judgment should not have been granted for Owens and
Davis; we need not ascertain whether the trial court actually applied the wrong
standard in reaching its decision. Bishop’s sixth issue is overruled.
In his seventh and final issue, Bishop argues that the trial court erred in
granting summary judgment without ruling on his motions to compel discovery
and motions for sanctions.
“A party against whom a claim, counterclaim, or cross-claim is asserted or a
declaratory judgment is sought may, at any time, move with or without supporting
affidavits for a summary judgment in his favor . . . .” TEX. R. CIV. P. 166a(b). So
19 while a defendant may only file a no-evidence motion for summary judgment
“[a]fter adequate time for discovery,” TEX. R. CIV. P. 166a(i), a defendant may
move for traditional summary judgment at any time.
If the nonmoving party believes the motion has been filed too soon or
without adequate time for discovery, he may oppose it by filing an appropriate
affidavit or motion for continuance. As the Supreme Court of Texas explained,
“When a party contends that it has not had an adequate opportunity for discovery
before a summary judgment hearing, it must file either an affidavit explaining the
need for further discovery or a verified motion for continuance.” Tenneco Inc. v.
Enter. Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996).
In this case, Bishop did not file an affidavit explaining the need for further
discovery or a verified motion for continuance. Although Bishop sent several
letters complaining to the trial court that the defendants were not complying with
discovery, he never requested a continuance or objected to the summary-judgment
motion as untimely in his response to Owens and Davis’s motion for summary
judgment. For this reason, Bishop’s seventh issue is overruled. See id. at 647.
20 Conclusion
We affirm the judgment of the trial court.
Michael Massengale Justice
Panel consists of Justices Jennings, Bland, and Massengale.