Affirmed and Majority and Concurring Opinions filed August 14, 2014.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-13-00385-CV

                   WILLIAM CARL WOOLEY, Appellant
                                        V.

                        RANDY SCHAFFER, Appellee

                    On Appeal from the 11th District Court
                            Harris County, Texas
                      Trial Court Cause No. 2013-05833

                    MAJORITY                 OPINION


      In four issues, pro se inmate William Carl Wooley complains that the trial
court dismissed his civil lawsuit against his former attorney Randy Schaffer, whom
Wooley retained to seek habeas relief on his behalf. Concluding that Wooley’s
causes of action have no basis in law or fact because Wooley has not been
exonerated from his criminal convictions, we affirm.
                                          Background 1

       Wooley was convicted of aggravated sexual assault and related offenses.
His convictions were affirmed on appeal, and he subsequently filed pro se habeas
corpus applications in district court in Tarrant County, Texas. He alleged, as
relevant here, ineffective assistance of trial counsel in failing to file a motion to
suppress video evidence that had been stolen by Wooley’s son and given to the
police. Thereafter, Wooley’s brother signed an agreement with Schaffer, 2 who
agreed to conduct an investigation “to determine whether there is any basis to file
an application for a writ of habeas corpus to challenge . . . Wooley’s convictions”
in exchange for a fee of $10,000.

       After conducting the investigation, Schaffer advised Wooley by letter that he
could file applications for a writ of habeas corpus to assert ineffective assistance of
trial counsel on two bases: (1) that trial counsel should have moved to suppress the
videos if Wooley’s son had not intended to give them to the police at the time he
stole them, as they would therefore be inadmissible; and (2) that trial counsel
should not have presented testimony from Wooley’s psychologist because it was
“extremely prejudicial” to Wooley. Schaffer informed Wooley that he would
charge a fee of $25,000 plus expenses to argue both issues or a fee of $15,000 plus
expenses to argue only the second issue. 3 Wooley responded by letter that trying
to prove his son did not intend to turn over the videos to authorities would be “a
waste of time and money,” 4 and Wooley authorized Schaffer only to raise the

       1
         Although we analyze only Wooley’s live petition below, additional background facts
are presented for clarity and context.
       2
          The letterhead “The Schaffer Firm” was on the letter agreement, and Schaffer’s name
was on the signature line. The version of the letter agreement in our record was not signed by
Schaffer.
       3
           These fees would be in addition to the $10,000 investigation fee previously charged.
       4
           Wooley argues on appeal that Schaffer advised him that it would be a waste of time and
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second issue.

       Wooley’s brother, as guarantor, signed a “Professional Services Contract”
with the Law Office of Randy Schaffer, P.C., in which he agreed to pay $15,000,
plus the $10,000 investigation fee already paid. The firm agreed to file habeas
applications on Wooley’s behalf. It is undisputed that Schaffer filed applications
raising the issue regarding trial counsel’s effectiveness in presenting the
psychologist’s testimony, a brief, and proposed findings of fact and conclusions of
law as a supplement to Wooley’s pro se applications already pending raising the
issue regarding suppression of the videos.5

       Schaffer argued the case before a special master, who filed findings of fact
and conclusions of law in the district court recommending denial of the habeas
applications. The district court approved the special master’s findings of fact and
conclusions of law, and the Court of Criminal Appeals denied relief. Two months
later, Wooley allegedly informed Schaffer for the first time that Wooley wanted
Schaffer to raise the issue regarding suppression of the videos. Subsequently,
Wooley allegedly demanded a return of $20,000 of Schaffer’s fee. When Schaffer
refused to return the sum, Wooley initiated the underlying lawsuit.

       Wooley included various allegations in his original petition related to
Schaffer’s purported (1) failure to investigate the illegal search issue or include it
in the habeas applications that Schaffer filed, (2) failure to provide accounts of
how Wooley’s funds were expended, (3) overcharging Wooley and refusing to
refund fees paid by him, (4) using fees paid by Wooley for purposes other than

money to raise this issue. However, in his letter to Schaffer, Wooley stated, “I can almost
promise you, unless we got really lucky, that proving my son[’s] intentions were not to turn the
‘evidence’ over to the authorities . . . would represent a waste of time and money.” (Emphasis in
original).
       5
           These documents are not part of the appellate record.

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seeking habeas relief for Wooley, and (5) knowingly presenting unmeritorious
claims.      Wooley alleged Schaffer’s acts constituted “deceptive practices and
unethical conduct,” “negligence or incompetence” and obstructed Wooley’s “First
and Fourteenth Amendment rights and statutory rights.” Schaffer simultaneously
filed special exceptions to Wooley’s petition and a motion to dismiss the lawsuit
under Texas Rule of Civil Procedure 91a. Wooley filed objections to the special
exceptions and the motion to dismiss thirty days later but did not amend his
petition. The trial court did not rule on the special exceptions but granted the
motion to dismiss five days later.

                                      Discussion
       Wooley complains in four issues that the trial court erred in granting
Schaffer’s motion to dismiss under Rule 91a because (1) Wooley brought causes of
action against Schaffer for legal malpractice, breach of contract, and violations of
the Texas Deceptive Trade Practices Act6 (DTPA) and Wooley’s constitutional
rights; (2) Wooley filed suit within the applicable two-year statute of limitations;
and (3) files and records for this case are missing from the Harris County District
Clerk’s office.7

       Rule 91a allows a party to move to dismiss a cause of action on the ground
that it has no basis in law or in fact. See Tex. R. Civ. P. 91a.1. As specified in the
rule: “A cause of action has no basis in law if the allegations, taken as true,
together with inferences reasonably drawn from them, do not entitle the claimant to
the relief sought. A cause of action has no basis in fact if no reasonable person

       6
           See Tex. Bus. & Com. Code §§ 17.41-17.63.
       7
          Wooley does not explain how the purportedly missing files and records would have any
bearing on the trial court’s ruling on the Rule 91a motion to dismiss. Wooley complains that he
was not allowed to participate in the hearing on the motion. However, our record does not show
that the trial court conducted an oral hearing, and it was not required to do so. See Tex. R. Civ.
P. 91a.6 (“The court may, but is not required to, conduct an oral hearing on the motion.”).

                                                4
could believe the facts pleaded.” Id. A motion to dismiss must identify each cause
of action to which it is addressed and must state specifically the reasons the cause
of action has no basis in law, no basis in fact, or both. Tex. R. Civ. P. 91a.2. The
trial court may not consider evidence in ruling on the motion and must decide the
motion based solely on the pleading of the cause of action, together with any
exhibits permitted by Rule 59. 8 Tex. R. Civ. P. 91a.6.

       I.      We review the trial court’s ruling on a Rule 91a motion to dismiss
               de novo, construing the pleadings liberally in favor of the plaintiff,
               looking to the pleader’s intent, and accepting as true the factual
               allegations in the pleadings.
       We must decide as a matter of first impression in this court what standard of
review to apply to a trial court’s ruling on a motion to dismiss under Rule 91a.9
We generally review a trial court’s ruling on a motion to dismiss in other contexts
for abuse of discretion; however, we review the trial court’s ruling on a question of
law de novo. See, e.g., Nexion Health at Beechnut, Inc. v. Paul, 335 S.W.3d 716,
718 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (applying de novo standard to
review motion to dismiss in healthcare liability case when issue was whether
service had been effected properly); Singleton v. Casteel, 267 S.W.3d 547, 550
(Tex. App.—Houston [14th Dist.] 2008, pet. denied) (applying de novo standard to
review motion to dismiss to determine whether official immunity applied under
Texas Tort Claims Act); Harris Cnty. Hosp. Dist. v. Textac Partners I, 257 S.W.3d
303, 315 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (applying summary
       8
         Rule 59, in relevant part, allows “written instruments, constituting, in whole or in part,
the claim sued on [to] be made part of the pleadings . . . for all purposes.” Tex. R. Civ. P. 59.
       9
         Two sister courts have applied a de novo standard of review. See City of Austin v.
Liberty Mut. Ins., 431 S.W.3d 817, 822 (Tex. App.—Austin 2014, no. pet.) (applying de novo
standard to review Rule 91a motion challenging subject matter jurisdiction); GoDaddy.com, LLC
v. Toups, 429 S.W.3d 752, 753-54 (Tex. App.—Beaumont 2014, pet. filed) (applying de novo
standard to determine whether movant was entitled to immunity from suit under
Communications Decency Act, 47 U.S.C.A. section 230).

                                                5
judgment standard to review motion to dismiss that addressed claims on merits).
While we acknowledge that the determination of whether a cause of action has a
basis in law is, on its face, a question of law, see GoDaddy, 429 S.W.3d at 754, the
language of Rule 91a is less clear as to the determination of whether a cause of
action has a basis in fact—in which case “no reasonable person could have
believed the facts pleaded”—is a question of law. Tex. R. Civ. P. 91a.1.

        Although we acknowledge that Rule 91a motions to dismiss are unique, we
find them to be analogous to pleas to the jurisdiction, which require a court to
determine whether the pleader has alleged facts demonstrating jurisdiction. See
Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004).
In that context, we construe the pleadings liberally in favor of the plaintiff, look to
the pleader’s intent, and accept as true the factual allegations in the pleadings to
determine if the pleader has alleged facts that affirmatively demonstrate the trial
court’s jurisdiction over a claim. Id. at 226. Even though we are construing the
jurisdictional facts alleged in the petition, whether a pleader has alleged facts that
demonstrate jurisdiction is a question of law that we review de novo. Id. This
determination is consistent with the requirement in Rule 91a to take the allegations,
together with any reasonable inferences “as true.” See Tex. R. Civ. P. 91a.1.

        Rule 91a also requires the court to determine whether a “reasonable person
could believe the facts pleaded” to determine whether a pleading has a basis in
fact.   Tex. R. Civ. P. 91a.1.     This language is similar to a legal sufficiency
challenge, in which we ask whether the evidence at trial would enable reasonable
people to reach the verdict under review. See City of Keller v. Wilson, 168 S.W.3d
802, 827 (Tex. 2005). Even though we construe the factual evidence presented at
trial, the determination of legal sufficiency is a question of law we review de novo.
See id. at 822, 827.

                                          6
       Federal courts also apply a de novo standard of review to a trial court’s
ruling on a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6).10 In
re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007). Rule 91a has
unique language allowing dismissal of causes of action with no basis in law or fact.
Tex. R. Civ. P. 91a. However, Federal Rule of Civil Procedure 12(b)(6) similarly
allows dismissal if a plaintiff fails “to state a claim upon which relief can be
granted”; therefore, we find case law interpreting Rule 12(b)(6) instructive. Fed.
R. Civ. P. 12(b)(6); see also GoDaddy, 429 S.W.3d at 754.

       For a complaint to survive a Federal Rule 12(b)(6) motion to dismiss, it must
contain “enough facts to state a claim to relief that is plausible on its face.”11
GoDaddy, 429 S.W.3d at 754 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). Facial plausibility requires facts that allow the court “to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id.
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Essentially, under the
federal rules, the complaint is liberally construed in favor of the plaintiff, and all
well-pleaded facts are taken as true. Id. (citing Ashcroft, 556 U.S. at 678–79 and
Erickson v. Pardus, 551 U.S. 89, 94 (2007)). But “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not
suffice.”   Id. (quoting Ashcroft, 556 U.S. at 678).              Likewise, in determining
whether the trial court erred in denying a defendant’s motion to dismiss, federal
       10
          Before the adoption of Rule 91a, Texas procedure did not have a dismissal mechanism
similar to Rule 12(b)(6). GoDaddy, 429 S.W.3d at 754. In 2011, the Legislature promulgated
section 22.004(g) of the Texas Government Code, which provides that the “supreme court shall
adopt rules to provide for the dismissal of causes of action that have no basis in law or fact on
motion and without evidence.” See Tex. Gov’t Code § 22.004(g); see also GoDaddy, 429
S.W.3d at 754.
       11
          In ruling on such a motion, the court cannot look beyond the pleadings. Bart Turner &
Assocs. v. Krenke, 3:13-CV-2921-L, 2014 WL 1315896, at *4 (N.D. Tex. Mar. 31, 2014). The
pleadings include the complaint and any documents attached to it. Id. (citing Collins v. Morgan
Stanley Dean Witter, 224 F.3d 496, 498–99 (5th Cir. 2000)).

                                               7
courts take all of the plaintiff’s allegations as true. Id. (citing Twombly, 550 U.S.
at 570). Federal Rule 12(b)(6) dismissal is appropriate if the court determines
beyond doubt that the plaintiff can prove no set of facts to support a claim that
would entitle him to relief. Id. (citing Scanlan v. Tex. A & M Univ., 343 F.3d 533,
536 (5th Cir. 2003)).

      We conclude that both determinations of whether a cause of action has any
basis in law and in fact are legal questions that we review de novo, based on the
allegations of the live petition and any attachments thereto. In conducting our
review, similar to the analogous situations discussed above, we must construe the
pleadings liberally in favor of the plaintiff, look to the pleader’s intent, and accept
as true the factual allegations in the pleadings to determine if the cause of action
has a basis in law or fact. In doing so, we apply the fair notice pleading standard
applicable in Texas to determine whether the allegations of the petition are
sufficient to allege a cause of action. See Roark v. Allen, 633 S.W.2d 804, 810
(Tex. 1982) (“A petition is sufficient if it gives fair and adequate notice of the facts
upon which the pleader bases his claim.”); see also Bart Turner & Assocs. v.
Krenke, No. 3:13-CV-2921-L, 2014 WL 1315896, at *5 (N.D. Tex. Mar. 31, 2014)
(applying Texas’s fair notice pleading standard to determine whether to grant
motion to dismiss under Rule 91a). Applying these standards, we turn to the issues
raised on appeal by Wooley.

      II.    Wooley’s causes of action have no basis in law or fact under the
             Peeler doctrine.
      In his first two issues, Wooley argues that he asserted valid causes of action
for legal malpractice, breach of contract, and violations of the DTPA and Wooley’s
constitutional rights. In the motion to dismiss, Schaffer asserted “Wooley’s claims
are difficult to understand, [but] he appears to allege that Schaffer was negligent,


                                           8
committed legal malpractice or fraud, and violated [Wooley’s] constitutional rights
in failing to raise the illegal search issue.” 12 Schaffer argues Wooley’s causes of
action are “frivolous” because Wooley has not been exonerated from his
convictions. See Peeler v. Hughes & Luce, 909 S.W.2d 494, 497-98 (Tex. 1995)
(plurality op.). Wooley, whose petition indicates he is a convicted felon who has
not been exonerated, 13 argues that his causes of action are viable because they were
brought against counsel retained to draft applications for writ of habeas corpus, as
distinguished from the trial counsel defendant in the Peeler case.

       In that case, Peeler pleaded guilty to a federal crime and received a sentence
pursuant to a plea agreement. Id. at 496. She later was told that the United States
attorney had made an offer to her trial counsel of absolute transactional immunity
in exchange for her testimony that was not communicated to her. Id. She sued her
attorney and his law firm seeking damages based on claims for alleged DTPA
violations, legal malpractice, breach of contract, and breach of warranty. Id. The
trial court granted summary judgment in favor of the defendants on the basis that
Peeler had not been exonerated and that her criminal conduct was the sole cause of
her alleged damages.         Id.    The court of appeals and subsequently the Texas
Supreme Court affirmed. Id.

       12
           Schaffer did not indicate whether his motion to dismiss was based on the grounds that
Wooley’s causes of action had no basis in law, fact, or both. Although a motion to dismiss under
Rule 91a must state specifically the reasons the cause of action has no basis in law, fact, or both,
we do not construe the rule to require magic words to invoke these grounds if the arguments are
clear from the motion. See Tex. R. Civ. P. 91a.2. Schaffer argued primarily that the causes of
action alleged in the petition could not be brought unless the prisoner had been exonerated. We
construe this as an argument that the causes of action have no basis in law or fact. They have no
basis in law because they are barred unless Wooley had been exonerated, as discussed below.
They have no basis in fact because no reasonable person could believe, based on the allegations
in the petition, that Wooley had been exonerated.
       13
           Wooley lists his residence as “the Texas Department of Criminal Justice, Institution
[sic] Division at Huntsville, Texas” and concedes that the Court of Criminal appeals denied him
habeas relief.

                                                 9
       A four-justice plurality concluded that under Texas public policy, a criminal
defendant’s own conduct is the sole cause of any damages flowing from her
indictment and conviction, unless the conviction has been overturned.14 Id. at
497-98. Consequently, the court held that Peeler’s claims for malpractice and
violations of the DTPA failed as a matter of law because Peeler had not been
exonerated by direct appeal, post-conviction relief, or otherwise.15                    Id.    The
supreme court has not granted review in a case involving this doctrine since the
Peeler decision. Futch v. Baker Botts, LLP, No. 14-12-00731-CV, 2014 WL
2583769, at *7 (Tex. App.—Houston [14th Dist.] June 10, 2014, no. pet. h.).
However, in a series of opinions, this court has adopted and applied an expansive
interpretation of the doctrine articulated in Peeler. Id.16

       We have applied the Peeler doctrine to claims for breaches of contract and
fiduciary duty and a request for fee forfeiture. See id. (citing Johnson v. Odom,
949 S.W.2d 392, 393–94 (Tex. App.—Houston [14th Dist.] 1997, pet. denied).
We have also applied the doctrine to all claims connected to the conviction. Id.
(citing McLendon v. Detoto, No. 14–06–00658–CV, 2007 WL 1892312, at *1-2
(Tex. App.—Houston [14th Dist.] July 3, 2007, pet. denied) (mem.op.). Moreover,

       14
          Generally, to recover on a claim of legal malpractice, a plaintiff must prove that (1) the
attorney owed the plaintiff a duty, (2) the attorney breached that duty, (3) the breach proximately
caused the plaintiff’s injuries, and (4) damages occurred. Peeler, 909 S.W.2d at 496. Likewise,
a plaintiff seeking to recover under the DTPA must prove causation. Id. at 498. When a
criminal defendant has not been exonerated, the sole cause of his indictment and conviction is his
own conduct. Id. at 495, 497-98.
       15
          The claims for breaches of contract and warranty were not before the high court.
Peeler, 909 S.W.2d at 499.
       16
          See Meullion v. Gladden, No. 14–10–01143–CV, 2011 WL 5926676, at *2–4 (Tex.
App.—Houston [14th Dist.] Nov. 29, 2011, no pet.) (mem. op.); McLendon v. Detoto, No. 14–
06–00658–CV, 2007 WL 1892312, at *1–2 (Tex. App.—Houston [14th Dist.] July 3, 2007, pet.
denied) (mem. op.); Golden v. McNeal, 78 S.W.3d 488, 491–92 (Tex. App.—Houston [14th
Dist.] 2002, pet. denied); Johnson v. Odom, 949 S.W.2d 392, 393–94 (Tex. App.—Houston
[14th Dist.] 1997, pet. denied).

                                                10
we have applied the doctrine to a claim against an attorney retained to draft a post-
conviction petition for writ of habeas corpus that was not filed.                     Id. (citing
Meullion v. Gladden, No. 14–10–01143–CV, 2011 WL 5926676, at *3–4 (Tex.
App.—Houston [14th Dist.] Nov. 29, 2011, no pet.) (mem. op.)). Accordingly,
Wooley’s argument that the Peeler doctrine does not apply to counsel retained to
seek habeas relief is without merit. See Meullion, 2011 WL 5926676, at *3–4.

       Assuming for purposes of argument that Wooley’s petition gives fair notice
that he alleged all of the above causes of action—legal malpractice, breach of
contract, and violations of the DTPA and Wooley’s constitutional rights 17—we
conclude they are barred as a matter of law under this court’s expansive
interpretation of the Peeler doctrine. Accordingly, these causes of action have no
basis in law or fact, and the trial court did not err in granting the Rule 91a motion
to dismiss.

       We overrule Wooley’s first and second issues. Because we conclude that
Wooley’s causes of action have no basis in law or fact under the Peeler doctrine,
we need not address Wooley’s third and fourth issues asserting that his lawsuit was
       17
           Wooley asserted in his petition that Schaffer’s “acts and omissions” violated his First
and Fourteenth Amendment rights. These claims are related to Schaffer’s alleged failure to
provide adequate representation in seeking habeas relief in connection with Wooley’s
convictions and thus are barred under our case law interpreting Peeler. See, e.g., Futch, 2014
WL 2583769, at *8 (applying Peeler doctrine to bar claim of breaches of fiduciary duty even
though purported breaches were not directly related to criminal conviction); Meullion, 2011 WL
5926676, at *3–4 (holding defendant’s claims relating to quality of counsel retained to seek
habeas relief flowed from defendant’s conviction and thus defendant’s illegal conduct was only
cause of any injuries sustained by defendant); McLendon, 2007 WL 1892312, at *2 (holding all
claims relating to attorney’s negligence were barred under Peeler). Moreover, it is unclear from
Wooley’s pleading how Schaffer allegedly violated his constitutional rights. Generally, a
criminal defendant may not bring a claim against his defense attorney for violations of
constitutional rights because the attorney is not acting under color of state law. See Worthy v.
Scoggin, No. 3:02-CV-2233-N, 2002 WL 31875561, at *2 (N.D. Tex. Dec. 19, 2002), appeal
dismissed, 65 Fed. App’x 509 (5th Cir. 2003) (“Plaintiff’s claims against his defense attorney fail
to state a claim upon which relief can be granted because plaintiff has alleged no facts that show
that his attorney acted under color of state law.”).

                                               11
filed within the applicable statutes of limitation and that files and records were
missing from the clerk’s office.

      We affirm the judgment of the trial court.




                                      /s/    Martha Hill Jamison
                                             Justice

Panel consists of Chief Justice Frost and Justices Jamison and Wise. (Frost, C.J.,
Concurring).




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