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Gibson v. Texas Department of Criminal Justice

Court of Appeals of Texas, Eleventh District

July 25, 2019

CHARLES RAY GIBSON JR., Appellant
v.
TEXAS DEPARTMENT OF CRIMINAL JUSTICE, Appellee

          On Appeal from the 132nd District Court Scurry County, Texas Trial Court Cause No. 25, 981

          Panel consists of: Bailey, C.J., Stretcher, J., and Wright, S.C.J. [1]

          MEMORANDUM OPINION

          JOHN M. BAILEY CHIEF JUSTICE

         Charles Ray Gibson Jr. appeals the trial court's dismissal of his lawsuit against the Texas Department of Criminal Justice (TDCJ). Appearing pro se and in forma pauperis, Appellant contends that the trial court erred when it considered the arguments raised by an amicus curiae filing from the Office of the Attorney General (OAG), failed to enter a default judgment against TDCJ, and denied Appellant's request for leave to amend his petition. We affirm.

         Background Facts

         Appellant is an inmate housed in TDCJ. He filed a civil suit against TDCJ for an alleged fraudulent concealment relating to a release date that purportedly occurred at some point over fifteen years ago. In summary, Appellant's claim concerns convictions and the resulting incarceration for them that occurred in the 1990s. He contends that in 2016, TDCJ made a representation in a "commitment inquiry" that it provided to him that he should have been released at some point in the 1990s when in fact he was not released from TDCJ custody at the time. Appellant contends that TDCJ fraudulently concealed from him that he should have been released at some point in the 1990s for some of his earlier convictions. Appellant sought damages of $750, 000 as a result of this alleged fraudulent concealment.

         TDCJ did not file an answer to Appellant's petition. However, the OAG filed a document entitled "Suggestion of Amicus Curiae" alleging that Appellant did not effectively serve TDCJ with process and that Appellant failed to comply with the procedural prerequisites under Chapter 14 of the Texas Civil Practice and Remedies Code. The OAG also suggested that Appellant's claim was frivolous because his chance for success was slight and that TDCJ enjoyed sovereign immunity for Appellant's Section 1983 claim. See 42 U.S.C.A. § 1983. Appellant filed an answer to the OAG's amicus filing wherein he disputed the OAG's claims. After considering Appellant's petition and the OAG's amicus curiae filing, the trial court dismissed Appellant's petition with prejudice on June 20, 2017.

         Analysis

         In his first issue, Appellant contends that the trial court erred when it considered the arguments raised by the OAG in an amicus filing. Appellant asserts that the OAG should not have been permitted to identify itself as an amicus curiae because it had an interest in the proceeding because it would be the state agency that would represent TDCJ in the action. Appellant also argues that the trial court should not have considered the issues of service and sovereign immunity because those issues were not raised by either party, but by an improper amicus party. We disagree.

         An amicus curiae, or "friend of the court," is defined as "[a] person who is not a party to a lawsuit but who petitions the court or is requested by the court to file a brief in the action because that person has a strong interest in the subject matter." In re A. JL, 108 S.W.3d 414, 420 n1 (Tex App-Fort Worth 2003, pet denied); see Kelley v Scott, No 14-01-00696-CV, 2003 WL 21229275, at *1 (Tex App- Houston [14th Dist] May 29, 2003, no pet) (mem op) An amicus curiae is limited to making suggestions to the court, not posing new questions Edgewood Indep Sch Dist v Kirby, 804 S.W.2d 491, 503 n6 (Tex 1991) (Doggett, J, concurring). Courts may consider suggestions from an amicus curiae about questions apparent from the record in the case, but courts can only take actions that it could have taken in the absence of these suggestions. Kelley, 2003 WL 21229275, at *1.

         The Fourteenth Court of Appeals considered a similar contention in Kelley concerning the ability of the OAG to serve as an amicus curiae on behalf of prison officials. Id. The court of appeals determined that it was proper for the trial court to consider the OAG's amicus filing because Chapter 14 permits the trial court to dismiss an inmate suit before service of process. Id.; see Tex. Civ. Prac. & Rem. Code Ann. § 14.003 (West 2017). The Amarillo Court of Appeals reached a similar determination in Johnson v. Conner, No. 07-11-00055-CV, 2011 WL 3587425, at *2 (Tex. App.-Amarillo Aug. 16, 2011, no pet.) (mem. op.).

         For the reasons listed in Kelley and Johnson, we agree that the trial court may consider an amicus filing by the OAG on behalf of TDCJ. In this case, the OAG's amicus filing made suggestions pertaining to dismissal to the trial court based upon matters apparent from the record in the case. See Kelley, 2003 WL 21229275, at *1. Accordingly, the trial court did not err in considering the OAG's amicus filing. We overrule Appellant's first issue.

         In his second issue, Appellant contends that the trial court erred when it failed to enter a default judgment against TDCJ because TDCJ failed to file an answer. The denial of a motion for default judgment is reviewable in an appeal from a final judgment or order. Aguilar v. Livingston, 154 S.W.3d 832, 833 (Tex. App.- Houston [14th Dist.] 2005, no pet.). We review the denial of a request for default judgment for an abuse of discretion. Id.

         A default judgment may be granted pursuant to Texas Rule of Civil ...


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