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Gentry v. Smith

Court of Appeals of Texas, Fifth District, Dallas

June 24, 2019

JAMES H. GENTRY, Appellant
v.
BENJAMIN N. SMITH, Appellee

          On Appeal from the 199th Judicial District Court Collin County, Texas Trial Court Cause No. 199-03888-2018

          Before Justices Schenck, Osborne, and Reichek

          MEMORANDUM OPINION

          DAVID J. SCHENCK JUSTICE.

         James H. Gentry appeals the trial court's dismissal of his claims against appellee Benjamin N. Smith. For the following reasons, we affirm. Because all issues are settled in law, we issue this memorandum opinion. Tex.R.App.P. 47.4.

         Background

         In 2007, Gentry was charged with multiple counts of theft, to which he ultimately pleaded guilty and received life sentences in three of the five cases. Smith, a former Collin County Assistant District Attorney, prosecuted the five criminal cases against Gentry.[1]

         In 2018, Gentry filed suit pro se against Smith, [2] alleging Smith breached a contract with him-a voluntary confession and plea agreement; engaged in fraud; and violated sections of the penal code prohibiting tampering with evidence and governmental records. Gentry claimed that by engaging in such conduct, Smith violated his rights to "due course of law" under the U.S. Constitution and Article 1.04 of the Texas Code of Criminal Procedure.[3] By his suit, Gentry sought a declaration that Smith committed the alleged violations of constitutional and state law and a permanent injunction ordering Smith to admit he breached the contract.

         Smith filed an answer generally denying Gentry's claims, asserting several affirmative defenses, including limitations and absolute prosecutorial immunity, and requesting Gentry be sanctioned for filing a frivolous suit unsupported by any good faith arguments. Concurrently with his answer, Smith filed a motion to dismiss under Rule 91a of the rules of civil procedure, or alternatively, plea to the jurisdiction, ("Motion") in which he argued Gentry's claims were barred by limitations and precluded by Smith's entitlement to absolute prosecutorial immunity.

         The trial court ordered a hearing on Smith's Motion to be by submission only. Gentry, incarcerated as a result of the above-mentioned criminal convictions, filed a response to Smith's Motion, as well as a motion requesting the trial court issue a bench warrant or conduct a hearing by conference call in order to allow Gentry to participate in the hearing on Smith's Motion. Smith replied to Gentry's response, reasserting the grounds for dismissal urged in his Motion. The trial court issued an order titled "Final Judgment" in which it denied Gentry's motion for bench warrant, granted Smith's Motion, and dismissed the case with prejudice. Gentry filed a request for findings of fact and conclusions of law, but the trial court did not file any.

         Discussion

         On appeal, as in trial, a pro se litigant must properly present his case. See Strange v. Cont'l Cas. Co., 126 S.W.3d 676, 678 (Tex. App.-Dallas 2004, pet. denied). Although we liberally construe pro se briefs, litigants who represent themselves are required to comply with applicable rules and are held to the same standards as litigants represented by counsel. See Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978); In re N.E.B., 251 S.W.3d 211, 211-12 (Tex. App.-Dallas 2008, no pet.). To hold otherwise would give pro se litigants an unfair advantage over litigants represented by an attorney. In re N.E.B., 251 S.W.3d at 212.

         We liberally construe Gentry's pro se briefs to assert the following issues:

1) The trial court "abused its discretion" and violated Gentry's Fourteenth Amendment right by not conducting a hearing and denying Gentry's motion for bench warrant or hearing by phone.
2) The trial court erred by failing reach the merits of Gentry's claims for breach of contract, fraudulent ...

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