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Perez v. City of Fort Worth

Court of Appeals of Texas, Third District, Austin

January 11, 2017

Alejos Perez, Appellant
v.
City of Fort Worth; Tarrant County, Texas; and J. R. Molina, Appellees

         FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT NO. D-1-GN-16-001165, HONORABLE AMY CLARK MEACHUM, JUDGE PRESIDING

          Before Justices Puryear, Pemberton, and Field

          MEMORANDUM OPINION

          Scott K. Field, Justice

         Appellant Alejos Perez, an inmate confined in the Institutional Division of the Texas Department of Criminal Justice, who is appearing pro se and in forma pauperis, appeals the dismissal of his suit. Because we conclude that the trial court did not abuse its discretion in dismissing Perez's suit pursuant to chapter 14 of the Texas Civil Practice and Remedies Code, we will affirm. See Tex. Civ. Prac. & Rem. Code §§ 14.001-.014 (inmate litigation).

         FACTUAL AND PROCEDURAL BACKGROUND

         In 1989, Perez was indicted for (1) intentionally causing the death of an individual by shooting him during the course of committing or attempting to commit the offense of robbery, a capital offense; (2) intentionally and knowingly causing the death of an individual by shooting him; and (3) intentionally and knowingly, in the course of committing theft of property, threatening and placing an individual in fear of imminent bodily injury. Perez was separately indicted for intentionally, and with the intent to commit the offense of murder, shooting a different individual. Perez, represented by appellee J.R. Molina, pleaded guilty to first degree murder (count two of the indictment) and was sentenced to life in prison. The court entered a "plea in bar" pursuant to section 12.45 of the Texas Penal Code with respect to the separate indictment for attempted murder.[1] Perez is currently incarcerated in the Institutional Division of the Texas Department of Criminal Justice.

         Perez filed the underlying proceeding in Travis County district court in March 2016. Perez titled his pleading a "petition for declaratory judgment" and asserted that the trial court had jurisdiction over the suit pursuant to section 2001.038 of the Texas Government Code. See Tex. Gov't Code § 2001.038 (permitting challenge to validity or applicability of agency rules).[2] Perez alleged that the application of an unspecified rule had impaired or threatened to impair a legal right or privilege. As defendants, Perez named the City of Fort Worth's Police Department, Tarrant County, the Texas Department of Public Safety Crime Laboratory, [3] and Molina, his former defense counsel. Although Perez's petition is not a model of clarity, we discern from our review of the pleadings that his chief complaint is the failure to be released on parole due to the actions of appellees, whom he alleged failed to provide accurate information relevant to the parole decision to the Texas Board of Pardons and Paroles.

         In his petition Perez asserted that the appellees intentionally and maliciously breached their "duty of ordinary care" to him by failing to provide to the Texas Board of Pardons and Paroles documents or other information that would demonstrate he was entitled to be released on parole. Perez referred to unspecified defects in the indictment and to an alleged failure to dismiss an "illegal manufecture [sic] indictment, " which Perez asserted had to be done before he could be convicted of a "(lower) lesser-criminal charge, " and appears to complain of the failure to provide this information to the Board. Perez also asserted that the appellees violated his constitutional right to equal protection under the Texas Constitution through conduct that constituted racial discrimination, apparently by finding that Perez has shown a "conscious disregard while in prison for the lives, safety and undue (threat) to the public."[4] Perez's petition made an apparent reference to the fact that he was not convicted of capital murder, but only of first degree murder, and seems to attribute the failure to release him on parole to an inaccurate, and uncorrected, belief by the Board that his conviction was for capital murder. Perez alleged that the information he contends is inaccurate, and that appellants have failed to correct, has been used over and over to deny him a pardon or release on parole despite the fact that he has "for years met all requirements . . . to travel in and out of prison unit (security gates) without prison-security-escort, and is allowed to be close near prison guard with (guns) weapons in there[sic]-possession daily" as required by his trustee job duties. Perez also stated that despite his coming and going without a prison security escort, there had been no reported attempt by him to escape, a fact presumably supporting his suitability for parole.

         From these allegations, we understand Perez to complain that the actions of the appellees have resulted in the denial of what he contends is his legal right or privilege to be released on parole.[5] The relief Perez requested was that (1) the court send "a temporary order notice to the adverse party: Joe Lange and Richard Aiello, "[6] (2) he be awarded $600, 000 in compensatory damages from each defendant, and (3) he be awarded $600, 000 in punitive damages from each defendant.

         Tarrant County, the City of Fort Worth, and Molina each filed motions to dismiss Perez's suit pursuant to chapter 14 of the Texas Civil Practice and Remedies Code, arguing that the claims Perez asserted had no arguable basis in law because (1) governmental immunity barred the asserted claims; (2) Perez had no right to be released on parole; and (3) parole decisions are not city or county functions. See Tex. Civ. Prac. & Rem. Code § 14.003(a) (court may dismiss claim if it finds that claim is frivolous); (b) (in determining whether claim is frivolous, court may consider whether claim has no arguable basis in law or in fact). The district court held a hearing and heard argument from counsel for the defendants and from Perez. After the hearing, the court signed three separate orders granting each of the defendants' motion to dismiss. This appeal followed.

         DISCUSSION

         Chapter 14 of the Texas Civil Practice and Remedies Code applies to all suits, such as this one, filed by inmates who declare themselves unable to pay costs. Id. § 14.002(a). Section 14.003 authorizes a trial court to dismiss an inmate claim, filed in forma pauperis, either before or after service of process occurs, if it finds the claim to be frivolous. Id. § 14.003(a)(2). A claim is frivolous if it has no basis in law or fact. See id. § 14.003(b)(2). A claim is considered to have no basis in law when either the legal theory on which it is based is indisputably meritless or the factual allegations on which it is based are wholly incredible or irrational. Nabelek v. District Att'y of Harris Cty., 290 S.W.3d 222, 228 (Tex. App.-Houston [14th Dist.] 2005, pet. denied). A claim is also frivolous if its realistic chance of ultimate success is slight. See Tex. Civ. Prac. & Rem. Code § 14.003(b)(1).

         We review dismissal under chapter 14 for an abuse of discretion. Leachman v. Dretke, 261 S.W.3d 297, 303 (Tex. App.-Fort Worth 2008, no pet.). A trial court abuses its discretion if it acts unreasonably or without reference to any guiding rules or principles. Id. We review de novo whether the plaintiff's claims have no basis in law such that dismissal on that ground is authorized. See Retzlaff v. Texas Dep't of Criminal Justice, 94 S.W.3d 650, 653 (Tex. App.-Houston [14th Dist.] 2002, pet. denied). We examine the claims asserted and the relief requested to determine whether the petition stated a cause of action that could authorize relief. Hamilton v. Williams, 298 S.W.3d 334, 339 (Tex. App.-Fort Worth 2009, pet. denied).

         Perez's brief does not identify specific appellate issues but, construing his brief liberally, he appears to challenge three actions by the trial court: (1) granting the motions to dismiss; (2)failing to transfer the case to Tarrant County after Perez filed a motion to transfer venue; and (3)failing ...


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