Gary Walp v. Texas Board of Pardons and Paroles

Gary Walp and Otherss Similarly Situated v. Tex. Bd. of Pardons & Paroles IN THE TENTH COURT OF APPEALS No. 10-98-173-CV GARY WALP, Appellant v. TEXAS BOARD OF PARDONS & PAROLES, Appellee From the 52nd District Court Coryell County, Texas Trial Court # 31,380 O P I N I O N Appellant Walp appeals an order of the trial court dismissing his pro se in forma pauperis lawsuit with prejudice. Appellant, a prison inmate, filed suit against the Texas Board of Pardons and Paroles asserting that since the State finished its prison expansion project which opened up thousands of beds, the Board had: (1) required violent and sexual offenders to serve more of their sentences than other inmates; (2) arbitrarily and capriciously denied parole to violent and sexual offenders without a review; (3) failed to adopt rules to provide for appointment of attorneys to represent inmates at parole hearings, placing unrepresented inmates at a disadvantage in comparison to inmates who had retained counsel; and (4) implemented a super-intensive supervision program which requires inmates released under the program to be electronically monitored, which is a condition of parole that did not exist at the time of their offense, and is violative of the ex post facto clause. Appellant sought declaratory and injunctive relief to include: adjudication that the Board‘s actions violate the State Constitution; enjoining the Board from abolishing the parole “actually or constructively” for violent and sex offenders; enjoining the Board from applying super-intensive supervision retroactively; and ordering the Board to give fair and equal treatment to prisoners not represented by counsel with those represented by counsel. The Board filed a motion to dismiss Appellant’s lawsuit asserting: (1) lack of jurisdiction; (2) sovereign immunity; (3) suit frivolous under Section 14 of the Texas Civil Practice & Remedies Code; and (4) no violation of the ex post facto clause. The trial court granted the Board’s motion and dismissed appellant’s lawsuit with prejudice. Appellant appeals on seven points of error: (1) The trial court abused its discretion in granting defendant’s motion to dismiss based on lack of jurisdiction; (2) The trial court abused its discretion in granting defendant’s motion to dismiss based on plaintiff’s failure to state a cause of action; and (3) The trial court abused its discretion in granting defendant’s motion to dismiss based on plaintiff’s failure to provide an affidavit of previous filings. Subject to review for abuse of discretion, a court may dismiss a pro se in forma pauperis lawsuit filed by a prisoner over which the court has no jurisdiction or which has no arguable basis in law or fact. Tex. Civ. Prac. & Rem. Code, § 14.003; Hickson v. Moya, 926 S.W.2d 397 (Tex. App.—Waco 1996, no writ). Abuse of discretion is determined by whether the court acted without reference to any guiding principles. Craddock v. Sunshine Bus Lines, 133 S.W.2d 124, 126 (Tex. 1939). That an appellate court might have decided a matter differently does not demonstrate an abuse of discretion on the trial court’s part. S.W. Bell Telephone Co. v. Johnson, 389 S.W.2d 645, 648 (Tex. 1965). A suit brought to control state actions or to subject the state to liability is not maintainable without legislative consent or statutory authorization. Dept. of Agriculture v. Printing Industries Ass’n, 600 S.W.2d 264, 265 (Tex. 1980). The Board of Pardons and Paroles, as a state agency, is entitled to the same sovereign immunity enjoyed by the State of Texas. Bogg v. Univ. Tex. Medical Branch, 726 S.W.2d 582, 584 (Tex. App.—Houston [14th Dist.] writ ref’d. n.r.e.). Where a plaintiff seeks injunctive relief that involves an activity of a state agency, he must sue some individual in authority at that agency; he may not sue the agency itself. Bogg, supra at 584-85. The trial court did not abuse its discretion in granting the Board’s motion to dismiss based on lack of jurisdiction or failure to state a cause of action. Appellant did provide an affidavit of previous filings; thus the trial court did not grant the Board’s motion based on Appellant’s failure to provide an affidavit of previous filings. Points 1, 2 and 3 are overruled. Point 4: “The trial court abused its discretion in granting defendant’s motion to dismiss based on plaintiff’s failure to show a liberty interest in parole.” Texas law does not create any liberty interest in parole that is protected by the due process clause. Albin v. Kyle, 66 F.3rd 71, 74 (5th Cir. 1995). Point 4 is overruled. Point 5: “The trial court abused its discretion in granting defendant’s motion to dismiss based on plaintiff’s failure to show an ex post facto violation.” Any change in the method under which the release on parole is determined does not implicate the ex post clause of the Constitution. California Dept. of Corrections v. Morales, 115 S.Ct. 1597 (1995). Moreover, the ex post facto clause applies only to legislative acts. U.S. v. Oliveres-Martinez, 767 F.2d 1135 (5th Cir. 1985). Point 5 is overruled. Point 6: “The trial court abused its discretion in granting defendant’s motion to dismiss based on plaintiff having no standing to challenge the super-intensive supervision program.” A person has standing where he or she is personally aggrieved. Nootsie v. Williamson County Appraisal District, 925 S.W.2d 659, 661 (Tex. 1996). The test for standing requires that there be a real controversy between the parties, which will be actually determined by the judicial declaration sought. Tex. Ass’n of Bus. v. Tex. Air Control Board, 852 S.W.2d 440, 446 (Tex. 1993). The appropriate time for an appellant to assert this cause of action is when and if he is released and is required to submit to the more stringent parole requirements. Appellant lacks standing at this time to assert this claim. The trial court did not abuse its discretion to dismiss Appellant’s action on this ground. Point 6 is overruled. Point 7: “The trial court abused its discretion in granting defendant’s motion to dismiss based on plaintiff’s failure to show an equal protection violation.” Appellant asserts the Board did not refute that he was subject to disparate treatment due to lack of appointed counsel. Appellant had the burden to show that a fundamental right was being abridged. He did not allege facts that representation by counsel during the parole process is a fundamental right. Point 7 is overruled. The judgment is affirmed FRANK G. McDONALD Chief Justice (Retired) Before Chief Justice Davis, Justice Vance and Chief Justice McDonald (Retired) Affirmed Opinion delivered and filed January 13, 1999 Do not publish