Court of Appeals of Texas, Fifth District, Dallas
JAMES H. GENTRY, Appellant
BENJAMIN N. SMITH, Appellee
Appeal from the 199th Judicial District Court Collin County,
Texas Trial Court Cause No. 199-03888-2018
Justices Schenck, Osborne, and Reichek
J. SCHENCK JUSTICE.
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.
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.
2018, Gentry filed suit pro se against Smith,  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. 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.
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.
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.
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.
liberally construe Gentry's pro se briefs to assert the
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