                                                                              ACCEPTED
                                                                          03-16-00545-CV
                                                                                13918619
                                                               THIRD COURT OF APPEALS
                                                                          AUSTIN, TEXAS
                                                                    11/22/2016 8:39:19 AM
                                                                        JEFFREY D. KYLE
                                                                                   CLERK

                No. 03-16-00545-CV
                                                         FILED IN
                                                  3rd COURT OF APPEALS
                                                       AUSTIN, TEXAS
 COURT OF APPEALS FOR THE THIRD JUDICIAL         DISTRICT
                                                  11/22/2016 8:39:19 AM
                   AUSTIN, TEXAS                      JEFFREY D. KYLE
                                                           Clerk

               ALEJOS PEREZ,
                                    PLAINTIFF-APPELLANT
                    VS.

          FORT WORTH POLICE DEPARTMENT,
TEXAS DEPARTMENT OF PUBLIC SAFETY CRIME LABORATORY,
           TARRANT COUNTY AND J. R. MOLINA,
                              DEFENDANTS-APPELLEES


        ON APPEAL FROM THE 345TH DISTRICT COURT
                TRAVIS COUNTY, TEXAS


     BRIEF OF APPELLEE CITY OF FORT WORTH, TEXAS



                          LAETITIA COLEMAN BROWN
                          Senior Assistant City Attorney
                          State Bar No. 00792417
                          laetitia.brown@fortworthtexas.gov
                          Office of the City Attorney
                          1000 Throckmorton Street
                          Fort Worth, Texas 76102-6311
                          817.392.7600
                          817.392.8359 Facsimile

                          Attorneys for Appellee City of Fort Worth
                   IDENTITY OF PARTIES AND COUNSEL

       Appellee City of Fort Worth certifies that the persons identified below are
a complete list of the parties, attorneys, and any other person who has any interest
in the outcome of this lawsuit:

PRO SE PLAINTIFF / APPELLANT:
Alejos A. Perez TDCJ #00535652
TDCJ - Clements Unit
9601 Spur 591
Amarillo, Texas 79107

STUART JENKINS, DIRECTOR OF TEXAS BOARDS OF PARDONS AND
PAROLES:
Stuart Jenkins was Director of the Parole Division of the Texas Department of
Criminal Justice until he retired from that position in August, 2016. See
https://www.tdcj.state.tx.us/connections/MayJune2016/Images/MayJun2016_agen
cy_jenkins.pdf. Appellant attempted to name Stuart Jenkins as a “plaintiff” in the
proceeding in the district court. Appellant has not shown his authority to sue on
behalf of the Director of the Parole Division of the Texas Department of Criminal
Justice. Stuart Jenkins did not appear in person or by counsel or participate in the
proceeding in the district court.

DEFENDANT / APPELLEE:
Tarrant County, Texas

COUNSEL FOR APPELLEE TARRANT COUNTY:
Russell A. Friemel
Assistant Criminal District Attorney
Tarrant County, Texas
State Bar No. 07473500
Tim Curry Criminal Justice Center
401 West Belknap Street, 9th Floor
Fort Worth, Texas 76196
Email: RAFRIEMEL@tarrantcountytx.gov
Tel: 817-884-1233; Fax: 817-884-1675

DEFENDANT / APPELLEE:
City of Fort Worth misnomered as City of Fort Worth Police Department


                                         i
COUNSEL FOR APPELLEE CITY OF FORT WORTH:
Gerald Pruitt
Deputy City Attorney
State Bar No. 16369200
Email: gerald.pruitt@fortworthtexas.gov

Laetitia Coleman Brown
Senior Assistant City Attorney
State Bar No. 00792417
Email: laetitia.brown@fortworthtexas.gov

Office of the City Attorney
1000 Throckmorton Street
Fort Worth, Texas 76102-6311
Tel: 817-392-7600; FAX: 817-392-8359

DEFENDANT / APPELLEE:
J. R. MOLINA

COUNSEL FOR APPELLEE J. R. MOLINA:
J. R. Molina, Attorney
State Bar No. 14256500
Email: jrmolinalaw@gmail.com
1301 N. Houston Street
Fort Worth, Texas 76164
Tel: 817-624-4700; FAX: 817-624-9434

DEFENDANT:
TEXAS DEPARTMENT OF PUBLIC SAFETY CRIME LABORATORY

COUNSEL FOR TEXAS DEPARTMENT OF PUBLIC SAFETY CRIME
LABORATORY:
Christopher Lee Lindsey
Assistant Attorney General
State Bar No. 24065628
Email: christopher.lindsey@texasattorneygeneral.gov
Texas Attorney General’s Office
P.O. Box 12548, Capitol Station
Austin, Texas 78711
Tel: 512-463-2080; FAX: 512-936-2109

                                       ii
              STATEMENT REGARDING ORAL ARGUMENT
       Appellee City of Fort Worth contends that the relevant law in this area is
well-settled and the factual background is not complicated. Appellee therefore
does not believe that oral argument is necessary or would significantly assist the
Court.




                                        iii
                                         TABLE OF CONTENTS


IDENTITY OF PARTIES AND COUNSEL ...................................................... .i
STATEMENT REGARDING ORAL ARGUMENT........................................ ..iii
TABLE OF CONTENTS .................................................................................... ..iv
INDEX OF AUTHORITIES.................................................................................. v

I.       STATEMENT OF THE CASE ................................................................. 1
II.      ISSUE PRESENTED ............................................................................... 2
III.     STATEMENT OF FACTS ...................................................................... 2
IV.      SUMMARY OF CITY OF FORT WORTH’S ARGUMENT ................. 5
V.       CITY OF FORT WORTH’S ARGUMENT AND AUTHORITIES ......... 9
         A.       Standard of Review ........................................................................ 9
         B.       Lack of Subject Matter Jurisdiction ............................................. 10
         C.       Governmental Immunity under State Law ................................... 14
         D.       Prosecution and Parole Decision Not City Functions................... 17
         E.       Eligibility for Parole (Mandatory Supervision Release) .............. 21
         F.       No Constitutional Right to Release ............................................... 24
        G.        No Damages Recoverable by Appellant......................................... 26
        H.        Declaratory Judgment Unavailable ............................................... 28
        I.        Proper Venue ................................................................................ 33
        J.        Designation of Parole Division Director as a Plaintiff ................ 34
VI.      CONCLUSION AND PRAYER............................................................... 36
CERTIFICATE OF COMPLIANCE ................................................................... 39
CERTIFICATE OF SERVICE ......................................................................... 40
APPENDIX ....................................................................................................... 42


                                                           iv
                                         INDEX OF AUTHORITIES

                                                                                                                    Page(s)

Federal Cases
Coleman v. Dretke,
  409 F.3d 665 (5th Cir. 2005) (per curiam) ............................................................ 20

Esteves v. Brock,
   106 F.3d 674 (5th Cir. 1997) ............................................................................. 8, 17

Heck v. Humphrey,
  512 U.S. 477, 114 S.Ct. 2364 (1994) .............................................................. 11, 12
Imbler v. Pachtman,
  424 U.S. 409, 96 S.Ct. 984 (1976) ........................................................................ 18
Monell v. Department of Social Services,
  436 U.S. 658, 98 S.Ct. 2018 (1978) ...................................................................... 11



State Cases
In re A.D.D.,
    974 S.W.2d 299 (Tex. App. –San Antonio 1998, no pet.) .................................... 12
Alfonso v. Skadden,
   251 S.W.3d 52 (Tex. 2008) ................................................................................... 10
Anthony v. Owens,
  2009 WL 4250762 (Tex. App.–Houston [14th Dist.] July 7, 2009, no
  pet.) .............................................................................................................. 9, 24, 25
Bacon v. Tex. Historical Comm’n,
  411 S.W.3d 161 (Tex. App.—Austin 2013, no pet.).................................. 8, 15, 18
In re Barnes,
    127 S.W.3d 843 (Tex. App.–San Antonio 2003, orig. proceeding) ...................... 12

Bonham State Bank v. Beadle,
  907 S.W.2d 465 (Tex. 1995) ................................................................................. 33

                                                               v
Boykin v. Tauss,
  2016 WL 743423 (Tex. App.–Houston [1st Dist.] Feb. 25, 2016, no
  pet.) ........................................................................................................................ 23
Cain v. Tex. Bd. of Pardons and Paroles,
   104 S.W.3d 215 (Tex. App.–Austin 2003, no pet.)..................................... 8, 19, 23

Charleston v. Pate,
  194 S.W.3d 89 (Tex. App.–Texarkana 2006, no pet.) ...................................... 8, 18

Chenault v. Phillips,
  914 S.W.2d 140 (Tex. 1996) ................................................................................. 11

City of Beaumont v. Bouillion,
   896 S.W.2d 143 (Tex. 1995) ................................................................................. 11
City of Galveston v. State,
   217 S.W.3d 466 (Tex. 2007) ................................................................................. 15
City of Hempstead v. Kmiec,
   902 S.W.2d 118 (Tex. App.–Houston [1st Dist.] 1995, no writ) ...................... 7, 16

City of Houston v. Williams,
   216 S.W.3d 827 (Tex. 2007) ................................................................................. 11
City of North Richland Hills v. Home Town Urban Partners, Ltd.,
   340 S.W.3d 900 (Tex. App.–Fort Worth 2011, no pet.) ....................................... 37
City of Tyler v. Likes,
   962 S.W.2d 489 (Tex. 1997) ................................................................................. 27

Clawson v. Wharton County,
   941 S.W.2d 267 (Tex. App.–Corpus Christi 1996, writ den.) .............................. 19

CSR Ltd. v. Link,
  925 S.W.2d 591 (Tex. 1996) ................................................................................. 12

Dakil v. Lege,
  408 S.W.3d 9, 2012 WL 5247300 (Tex. App.–El Paso 2012, no pet.) ................. 36

Dallas County MHMR v. Bossley,
  968 S.W.2d 339 (Tex. 1998) ................................................................................. 15


                                                                vi
Dallas County v. Harper,
  913 S.W.2d 207 (Tex. 1995) ................................................................................. 16

In re Datamark, Inc.,
    296 S.W.3d 614 (Tex. App.–El Paso 2009, no. pet.) ............................................ 10
Dubai Petroleum Co. v. Kazi,
  12 S.W.3d 71 (Tex. 2000) ..................................................................................... 12
Font v. Carr,
  867 S.W.2d 873 (Tex. App.–Houston [1st Dist.] 1993, writ dism’d
  w.o.j.) ..................................................................................................................... 18
Ex parte Geiken,
   28 S.W.3d 553 (Tex. Crim. App. 2000) ............................................................ 9, 26
Hamilton v. Pechacek,
  319 S.W.3d 801 (Tex. App.–Fort Worth 2010, no pet.) ......................................... 3
Hamilton v. Williams,
  298 S.W.3d 334 (Tex. App.–Fort Worth 2009, pet. denied)................................. 29

Hills v. State,
   2011 WL 5343690 (Tex. App.–Austin Nov. 04, 2011, no pet.) ........................... 26
Ex parte Jeremy Lee Acuna,
   2012 WL 77219 (Ct. Crim. App. 2012) ................................................................ 26
Johnson v. Thaler,
   2011 WL 1833138 (Tex. App.–Austin May 12, 2011, no pet.)(mem.
   op., not designated for publication) ................................................................. 14, 37
Laubach v. State Bar of Texas,
  2000 WL 1675701 (Tex. App.–Austin Nov. 9, 2000, no pet.) ............................ 16
Lentworth v. Trahan,
  981 S.W.2d 720 (Tex. App.–Houston [1st Dist.] 1998, no pet.)............................. 3

Lewis v. Marina Bay Trucks, Inc.,
  2007 WL 900785 (Tex. App. –Houston [14th Dist.] Mar. 27, 2007,
  no pet.) ..................................................................................................................... 1

Luxenberg v. Marshall,
  835 S.W.2d 136 (Tex. App.–Dallas 1992, no pet.) ............................................... 10
                                                               vii
Martin v. State Bd. of Crim. Justice,
  60 S.W.3d 226 (Tex. App.–Corpus Christi 2001, no pet.) .................................... 11

Martinez v. Thaler,
  931 S.W.2d 45 (Tex. App.–Houston [14th Dist.] 1996, writ denied) ..................... 4
Miles v. Perry,
  2009 WL 2567914 (Tex. App.–Austin Aug. 21, 2009, pet. denied)(mem.
  op., not designated for publication) ....................................................................... 28

Miller v. Curry,
  625 S.W.2d 84 (Tex. App.–Fort Worth 1981, writ ref’d n.r.e.) ............................ 18

Nabelek v. Garrett,
  2003 WL 21710243 (Tex. App.–Houston [14th Dist.] July 24, 2003,
  pet. denied) (mem. op.).......................................................................................... 33

Nelson v. SCI Texas Funeral Services, Inc.,
   2016 WL 368437 (Tex. App.–Eastland Jan. 29, 2016, no pet.)(not
  designated for publication) .................................................................................... 27
Powell v. Stover,
  165 S.W.3d 322 (Tex. 2005) ................................................................................. 12
Rhey v. Redic,
  408 S.W.3d 440 (Tex. App.–El Paso 2013, no pet.) ............................................. 35
Santex Roofing & Sheet Metal, Inc. v. Venture Steel, Inc.,
   737 S.W.2d 55 (Tex. App.-San Antonio 1987, no writ) ....................................... 31

Scott v. Macha,
   2005 WL 375289 (Tex. App.–Fort Worth, Feb. 17, 2005, reh.
   denied) (not designated for publication) ................................................................. 9

State v. N.R.J.,
   453 S.W.3d 76 (Tex. App.–Fort Worth 2014, rev. den.) ........................................ 2

Tex. Ass’n of Bus. v. Tex. Air Control Bd.,
  852 S.W.2d 440 (Tex. 1993) ........................................................................... 13, 28
Tex. Dep’t of Crim. Justice v. Miller,
  51 S.W.3d 583 (Tex. 2001) ................................................................................... 15


                                                         viii
Tex. Dep’t of Parks & Wildlife v. Miranda,
  133 S.W.3d 217 (Tex. 2004) ..................................................................... 12, 32, 37

Texas Youth Com’n v. Garza,
  2011 WL 2937431 (Tex. App.–Corpus Christi–Edinburg July 11, 2011,
  no. pet.)(mem. op., not designated for publication) .............................................. 27

Thomas v. Texas Dept. of Criminal Justice, Inst. Div.,
  848 S.W.2d 797 (Tex. App.—Houston [14th Dist.] 1993, writ
  denied) ..................................................................................................................... 4

Thomas v. Wichita Gen. Hosp.,
  952 S.W.2d 936 (Tex. App. –Fort Worth 1997, pet. denied).............................. 3, 9
Thompson v. Aliseda,
  2009 WL 200994 (Tex. App.–Corpus Christi-Edinburg Jan. 29,
  2009, rev. den.) .................................................................................................. 7, 13

Univ. of Tex. Med. Branch v. York,
  871 S.W.2d 175 (Tex. 1994) ............................................................................... 7, 8

Univ. of Tex. Sw. Med. Ctr. at Dallas v. Loutzenhiser,
  140 S.W.3d 351 (Tex. 2004) ................................................................................. 10
Vargas v. Tex. Dep’t. of Criminal Justice,
  2012 WL 5974078 (Tex. App.- Austin Nov. 30, 2012, pet. denied) ........ 11, 12, 14
Villarreal v. Harris County,
   226 S.W.3d 537 (Tex. App.-Houston [1st Dist.] 2006, no pet.) ........................... 32

Williams Farms Produce Sales, Inc. v. R & G Produce Co.,
  443 S.W.3d 250 (Tex. App.–Corpus Christi 2014, no pet.) .................................. 20

Wornick Co. v. Casas,
  856 S.W.2d 732 (Tex. 1993) ........................................................................... 26, 27




                                                               ix
Federal Statutes
42 U. S.C. § 1983.................................................................................................. 11, 37



State Statutes
Tex. Civ. Prac. & Rem. Code Ann. § 14.001, et seq. ....................................per curiam

Tex. Civ. Prac. & Rem. Code Ann. § 14.001(1) ........................................................ 33
Tex. Civ. Prac. & Rem. Code Ann. §§ 14.001-.014..................................................... 3

Tex. Civ. Prac. & Rem. Code Ann. § 14.002(a)................................................. 4, 9, 33

Tex. Civ. Prac. & Rem. Code Ann. § 14.003 ............................................................. 33
Tex. Civ. Prac. & Rem. Code Ann. § 14.003(a)..................................................... 4, 33

Tex. Civ. Prac. & Rem. Code Ann. § 14.003(a)(2) ...................................................... 3
Tex. Civ. Prac. & Rem. Code Ann. § 14.003(a)(2), (b)(1)-(2) .................................. 33
Tex. Civ. Prac. & Rem. Code Ann. § 14.003(b)(1)-(4)................................................ 3
Tex. Civ. Prac. & Rem. Code Ann. § 14.003(c)........................................................... 3

Tex. Civ. Prac. & Rem. Code Ann. § 15.002 ....................................................... 33, 34
Tex. Civ. Prac. & Rem. Code Ann. § 37.001-.011................................................. 6, 28

Tex. Civ. Prac. & Rem. Code Ann. § 37.002(b) ........................................................ 10

Tex. Civ. Prac. & Rem. Code Ann. § 101.001, et seq. ................................. 6, 7, 15, 27
Tex. Civ. Prac. & Rem. Code Ann. § 101.021 ........................................... 7, 14, 15, 16

Tex. Civ. Prac. & Rem. Code Ann. § 101.024 ........................................................... 16
Tex. Civ. Prac. & Rem. Code Ann. § 101.057 ....................................................... 7, 16

Tex. Civ. Prac. & Rem. Code Ann. § 101.057(2) .................................................. 7, 16

Tex. Civ. Prac. & Rem. Code Ann. § 101.102 ........................................................... 34

                                                            x
Tex. Civ. Prac. & Rem. Code Ann. § 101.102(a)....................................................... 34

Tex. Code Crim. Proc. Ann. art. 42.12 ........................................................... 23, 24, 25

Tex. Code Crim. Proc. Ann. art. 42.12, Sect. 3 .............................................. 22, 23, 24
Tex. Code Crim. Proc. Ann. art. 42.12, Sect. 3g(a)(2) ..................................... 8, 22, 24

Tex. Code Crim. Proc. Ann. art. 11.07 ................................................... 7, 9, 13, 14, 26
Tex. Code Crim. Proc. Ann. art. 11.07(b) .................................................................. 13

Tex. Gov’t Code Ann. § 508.044(a)(1) ...................................................................... 23
Tex. Gov’t Code Ann. § 508.044(b) ....................................................................... 8, 19

Tex. Gov’t Code Ann. § 508.044(d) ........................................................................... 19
Tex. Gov’t Code Ann. § 508.0441 ....................................................................... 19, 20
Tex. Gov’t Code Ann. § 508.141 ............................................................................... 19

Tex. Gov’t Code Ann. § 508.144(a) ........................................................................... 19
Tex. Gov’t Code Ann. § 508.145 ............................................................................... 23
Tex. Gov’t Code Ann. § 508.145(d)(1) ............................................................ 8, 23, 24

Tex. Gov’t Code Ann. § 508.145(d)(1),(d)(2)...................................................... 25, 26
Tex. Gov’t Code Ann. § 508.147 ......................................................................... 21, 22
Tex. Gov’t Code Ann. § 508.149 ..................................................................... 8, 22, 23

Tex. Gov’t Code Ann. § 508.149(a) ................................................................. 9, 21, 25
Tex. Penal Code Ann. § 12.45 ...................................................................................... 2

Tex. Penal Code Ann. § 12.45(a) ................................................................................. 2
Tex. Penal Code Ann. § 19.02 ........................................................................ 22, 23, 25




                                                         xi
Rules
Tex. R. Civ. P. 21a ...................................................................................................... 29

Tex. R. Civ. P. 25 ................................................................................................. 29, 30
Tex. R. Civ. P. 26 ................................................................................................. 29, 30

Tex. R. Civ. P. 45 ................................................................................................. 29, 30

Tex. R. Civ. P. 47 ..................................................................................... 29, 30, 31, 35
Tex. R. Civ. P. 79 ....................................................................................................... 35

Tex. R. Civ. P. 85 ........................................................................................... 31, 31, 32

Tex. R. Civ. P. 166a(b) ............................................................................................... 32


Other Authorities

Texas Department of Criminal Justice Website Information:
http://www.tdcj.state.tx.us/bpp/policies_directives/policies_directives.html
   (Last accessed on 11/7/2016) ................................................................................ 20
http://www.tdcj.state.tx.us/bpp/what_is_parole/parole.html
   (Last accessed 11/7/2016) ..................................................................................... 20
https://www.tdcj.state.tx.us/bpp/ (Last accessed 11/7/2016) .................................... 20

https://www.tdcj.state.tx.us/connections/MayJune2016/Images/MayJun2
   016_agency_jenkins.pdf (Last accessed 11/7/2016) ............................................ 35

https://www.tdcj.state.tx.us/divisions/ogc/index.html
   (Last accessed 11/7/2016) ..................................................................................... 36

https://www.tdcj.state.tx.us/divisions/parole/(Last accessed 11/7/2016)................... 35
http://www.tdcj.state.tx.us/bpp/publications/PIT_eng.pdf
   (Last accessed 11/7/2016) ....................................................................................... 5

https://offender.tdcj.texas.gov/OffenderSearch/index.jsp
   (Last accessed 11/7/2016) ....................................................................................... 5

                                                            xii
                            I. STATEMENT OF THE CASE

       The City of Fort Worth, Texas, an appellee in this cause, requests that the Court

affirm dismissal of Appellant’s claims against the City of Fort Worth pursuant to TEX.

CIV. PRAC. & REM. CODE, Chapter 14 (“INMATE LITIGATION”), Sec. 14.001,

et seq., for the reasons stated below, and respectfully shows the Court the following:

       Appellant’s “Petition For Declaratory Judgment,” filed March 16, 2016 in Case

No. D-1-GN-16-001165, in the 345th Judicial District, of Travis County, Texas, is

vague and conclusory but essentially claims that Appellant was denied parole because

he was wrongfully convicted or denied release on parole due to records/documents

allegedly being altered or denied to him or other procedural error by the defendants.

CR 6, 11, 12. Appellant’s Petition also sought compensatory and punitive damages

and declaratory judgment due to the alleged “breach of duty of ordinary care” and

denial of equal protection (discrimination/“racism”) by the defendants. CR 12, 13,

14. Appellees Tarrant County, City of Fort Worth and J. R. Molina filed motions to

dismiss in this case pursuant to Chapter 14, of the Texas Civil Practice and Remedies

Code. 1 CR 125, 170, 229. The district court granted the motions. CR 332, 333, 334.



1 The Texas Attorney General’s Amicus Curiae Advisory relating to the insufficiency of service on
the Defendant Texas Department of Public Safety Crime Laboratory was filed in the district court
on June 6, 2016. CR 261. Subsequently, the district court granted the motions to dismiss of the
other defendants. Lewis v. Marina Bay Trucks, Inc., 2007 WL 900785, at *Footnote 2 (Tex.App.-
Houston [14th Dist.] Mar. 27, 2007, no pet.)(“… unserved party is considered to have been nonsuited
without prejudice” if court disposes of claims against all parties except unserved party).

BRIEF OF APPELLEE CITY OF FORT WORTH                                                           1
This appeal followed.

                                    II. ISSUE PRESENTED

      THE TRIAL COURT PROPERLY GRANTED CITY OF FORT WORTH’S
      MOTION TO DISMISS PURSUANT TO CHAPTER 14 OF THE TEXAS
      CIVIL PRACTICE AND REMEDIES CODE AND DISMISSED
      APPELLANT’S CLAIMS FOR THE REASON THAT APPELLANT MAY
      NOT SUE THE CITY OF FORT WORTH TO CHALLENGE HIS
      CRIMINAL CONVICTION OR THE DURATION OF HIS PRISON
      CONFINEMENT.

                                III. STATEMENT OF FACTS

         Appellant was convicted of murder in Case No. 0366865, State of Texas v.

Alejos Perez, in the Criminal District Court Number One of Tarrant County, Texas

and sentenced to life in prison on December 14, 1989. CR 146. A “Plea in Bar,”

pursuant to Section 12.45, Texas Penal Code, was entered in Case No. 0373871, in

Criminal District Court No. 1, Tarrant County, Texas, entitled State of Texas vs. Alejos

Perez, in which Plaintiff was also charged with a separate offense of attempted

murder. 2 CR 148, 149. Plaintiff is presently an inmate of the Institutional Division

of the Texas Department of Criminal Justice.

         Chapter 14 of the Texas Civil Practice and Remedies Code governs inmate


2   The Court in State v. N.R.J., 453 S.W.3d 76, 79 (Tex.App.–Fort Worth 2014, rev. den.) stated:

      Texas Penal Code section 12.45 provides that during a sentencing hearing and with the
      State's consent, a defendant may admit his guilt of an unadjudicated offense and request
      that the court take the offense into account in determining the sentence for the offense of
      which he stands adjudged guilty. Tex. Penal Code Ann. § 12.45(a). If the trial court takes
      into account an admitted offense under section 12.45, prosecution for that offense is barred.
      Id. § 12.45(c).

BRIEF OF APPELLEE CITY OF FORT WORTH                                                                  2
litigation. See Tex. Civ. Prac. & Rem. Code Ann. §§ 14.001-.014. When an inmate

files an unsworn declaration of inability to pay, the trial court has broad discretion to

dismiss the suit if the suit is frivolous or malicious. Id. § 14.003(a)(2); Lentworth v.

Trahan, 981 S.W.2d 720, 722 (Tex. App.-Houston [1st Dist.] 1998, no pet.). In

determining whether a claim is frivolous or malicious, a trial court may consider

whether (1) the claim's realistic chance of ultimate success is slight; (2) the claim has

no arguable basis in law or in fact; (3) it is clear that the party cannot prove facts in

support of the claim; or (4) the claim is substantially similar to a previous claim filed

by the inmate because the claim arises from the same operative facts. Id.; Tex. Civ.

Prac. & Rem. Code Ann. § 14.003(b)(1)-(4).

      An inmate bringing a claim subject to Chapter 14 has no right to an oral hearing

on a motion to dismiss. Thomas v. Wichita Gen. Hosp., 952 S.W.2d 936, 938 (Tex.

App.–Fort Worth 1997, pet. denied) (holding that a trial court's determination whether

to hold a hearing on a Chapter 14 motion to dismiss is discretionary). Based on Section

14.003(c), it is within the trial court's discretion to hear a motion to dismiss by

submission only, without conducting an oral or evidentiary hearing. Hamilton v.

Pechacek, 319 S.W.3d 801, 809 (Tex. App.–Fort Worth 2010, no pet.).

      Appellant’s Affidavit of Indigence was filed on March 16, 2016. CR 20.

Defendant City of Fort Worth was served with citation in this case on May 11, 2016.

CR 164 - 166. TEX. CIV. PRAC. & REM. CODE, Chapter 14 (Inmate Litigation), §

BRIEF OF APPELLEE CITY OF FORT WORTH                                                 3
14.002 (Scope of Chapter) provides:

          (a) This chapter applies only to an action, including an appeal or original
   proceeding, brought by an inmate in a district, county, justice of the peace, or
   small claims court or an appellate court, including the supreme court or the
   court of criminal appeals, in which an affidavit or unsworn declaration of
   inability to pay costs is filed by the inmate.

TEX. CIV. PRAC. & REM. CODE, § 14.003 (Dismissal of Claim) also states:

            (a) A court may dismiss a claim, either before or after service of
            process, if the court finds that:
            (1) the allegation of poverty in the affidavit or unsworn declaration is
           false;
            (2) the claim is frivolous or malicious; or
            (3) the inmate filed an affidavit or unsworn declaration required by this
           chapter that the inmate knew was false.

Trial courts have broad discretion in dismissing in forma pauperis suits they find to

be frivolous. Martinez v. Thaler, 931 S.W.2d 45, 46 (Tex. App.–Houston [14th Dist.]

1996, writ denied); Thomas v. Texas Dept. of Criminal Justice, Inst. Div., 848 S.W.2d

797, 798 (Tex. App.–Houston [14th Dist.] 1993, writ denied).

      The City of Fort Worth included in support of its motion to dismiss and

incorporated by reference, the documents attached as Exhibits A through K, including

the following:

       Case No. 0366865, in Criminal District Court No. 1, Tarrant County, Texas,
entitled The State of Texas vs. Alejos Perez

      a.     Indictment, filed 5/18/1989 (Exhibit A) CR 246.
      b.     Plea In Bar, filed 12/13/1989 (Exhibit B) CR 247.
      c.     Waiver of Jury Trial/Agreement to Stipulate Testimony, filed 12/13/89
             (Exhibit C) CR 248.

BRIEF OF APPELLEE CITY OF FORT WORTH                                                    4
         d.     Plea Agreement, filed 12/13/1989 (Exhibit D) CR 249.
         e.     Certificate of Proceedings, dated 12/13/1989 (Exhibit E) CR250.
         f.     Judgment on Plea of Guilty or Nolo Contendere Before Court, dated
                12/14/1989 (Exhibit F) CR 251.

         Case No. 0373871, in Criminal District Court No. 1, Tarrant County, Texas,
         entitled The State of Texas vs. Alejos Perez

         g.     Indictment, filed 5/18/1989 (Exhibit G) CR 252.
         h.     Certificate of Proceedings, dated 12/13/1989 (Exhibit H) CR 253.
         i.     Judgment on Plea In Bar, dated 12/14/1989 (Exhibit I) CR 254.

The District Judge signed Items b, c, e, f, h and i. Appellant signed Items b, c and d.

         Texas Department of Criminal Justice – Institutional Division

         j.     Offender Information Details3 (Exhibit J) CR 255.

         Texas Board of Pardons & Parole; Texas Dept. of Criminal Justice – Parole
              Division

         k.     Parole & Mandatory Supervision Eligibility Chart 4 (Rev. 12/1/2004)
                (Exhibit K) CR 259.

    The district court held a hearing on July 26, 2016 and after hearing arguments from

    Appellant and counsel for Appellees, dismissed Appellant’s claims.                CR 333.

    Appellant also filed an Affidavit of Indigence, claiming inability to pay costs of

    appeal. CR 348.

              IV. SUMMARY OF CITY OF FORT WORTH’S ARGUMENT



3 Source: TDCJ-ID Offender Information Search; Link:
https://offender.tdcj.texas.gov/OffenderSearch/index.jsp (Last accessed 11/7/2016.)
4 Source: Parole In Texas (Booklet, pub’d 2005); Link:

http://www.tdcj.state.tx.us/bpp/publications/PIT_eng.pdf (Last accessed 11/7/2016.)

BRIEF OF APPELLEE CITY OF FORT WORTH                                                      5
       Based on lack of subject matter jurisdiction, the District Court properly

 dismissed this suit brought for damages and for declaratory relief filed by Appellant

 Alejos Perez. Appellant, a state prisoner, claimed, as the basis of his suit, that

 the Appellees caused his wrongful imprisonment and /or denial of his release from

 prison. Texas Civil Practices & Remedies Code, Chapter 14 (“Inmate Litigation”)

 authorizes review and dismissal of pro se in forma pauperis suits by district courts

 prior to service of process. The District Court correctly dismissed Appellant’s

 suit, based on lack of jurisdiction, since the Texas Tort Claims Act, Chapter 101 of

 the Texas Civil Practice & Remedies Code, provides only a limited waiver of

 governmental immunity but:

    1) Does not provide a statutory basis for Appellant to challenge his criminal
       conviction in a civil court,
    2) Does not allow claims for intentional torts,
    3) Limits recovery to personal injury damages for physical injury caused by use
       or misuse of tangible personal property. Information or records manually
       or electronically recorded or prepared do not constitute tangible personal
       property.

 The Texas Declaratory Judgment Act does not itself create jurisdiction for a district

 court where jurisdiction does not otherwise exist. Appellant’s conviction was

 affirmed on appeal and has not been set aside or reversed.

      Plaintiff was convicted of murder in Case No. 0366865, State of Texas v. Alejos

Perez, in the Criminal District Court Number One of Tarrant County, Texas and

sentenced to life in prison on December 14, 1989. Attached to City of Fort Worth’s

BRIEF OF APPELLEE CITY OF FORT WORTH                                                6
Motion To Dismiss, as Exhibits A through K, were documents relevant to his

conviction and confinement and parole procedures. CR 246 - 260. City of Fort

Worth’s Motion To Dismiss under Chapter 14, TEX. CIV. PRAC. & REM. CODE,

was based on the following grounds:

      1. Lack of Subject Matter Jurisdiction. Plaintiff’s Petition For Declaratory
   Judgment was filed March 16, 2016. Texas courts hold that a writ of habeas corpus
   is the “exclusive remedy” for addressing alleged irregularities occurring during
   parole proceedings. Thompson v. Aliseda, 2009 WL 200994 at *2 - 3 (Tex. App.–
   Corpus Christi-Edinburg Jan. 29, 2009, rev. den.). Texas Code of Criminal
   Procedure, Art. 11.07 (“Procedure after conviction without death penalty”)
   “establishes the procedures for an application for writ of habeas corpus in which
   the applicant seeks relief from a felony judgment imposing a penalty other than
   death.”

     2. Governmental Immunity Bars Suit Against City of Fort Worth. The Texas
   Tort Claims Act (codified in Chapter 101 of the Texas Civil Practice & Remedies
   Code), § 101.021 (“Governmental Liability”) provides a limited waiver of
   governmental immunity:

             A governmental unit in the state is liable for:
             ...
             (2) personal injury and death so caused by a condition or use of
      tangible personal or real property if the governmental unit would, were it a
      private person, be liable to the claimant according to Texas law.

   Claims for false arrest and imprisonment are intentional torts. See City of
   Hempstead v. Kmiec, 902 S.W.2d 118, 122 (Tex. App.–Houston [1st Dist.] 1995,
   no writ) (recognizing false arrest and malicious prosecution as intentional torts).
   Section 101.057 of the TTCA provides: “This chapter does not apply to a claim ...
   arising out of assault, battery, false imprisonment, or any other intentional tort . .
   .” Tex. Civ. Prac. & Rem. Code Ann. § 101.057(2) (West 2011). Additionally,
   the Texas Supreme Court has held that information “is an abstract concept, lacking
   corporeal, physical, or palpable qualities.” Univ. of Tex. Med. Branch v. York,
   871 S.W.2d 175, 179 (Tex. 1994). The fact that information is recorded in writing
   does not render it “tangible.” Id. Thus, the Legislature has not eliminated

BRIEF OF APPELLEE CITY OF FORT WORTH                                                 7
  governmental immunity for damages resulting from the misuse of information,
  even if that information is in writing or in the form of documents or stored data.
  Id.

     3. Prosecution and Parole Decision Not City Functions. City of Fort Worth, as
  a local governmental entity, has no involvement in the prosecution of criminal
  cases by and in the name of the State of Texas or in the criminal case in which
  Plaintiff was convicted in 1989. A City prosecutor is a state, not county, official
  when prosecuting criminal cases or engaging in prosecutorial duties. Esteves v.
  Brock, 106 F.3d 674, 678 (5th Cir. 1997). Any claim against a city prosecutor in
  an official capacity is also barred by sovereign immunity. Bacon v. Tex. Historical
  Comm'n, 411 S.W.3d 161, 172 (Tex. App.—Austin 2013, no pet.). Claims against
  a prosecutor in an individual (personal) capacity are barred by prosecutorial
  immunity. Charleston v. Pate, 194 S.W.3d 89, 90 (Tex. App.-Texarkana 2006,
  no pet.).

     City of Fort Worth, as a local governmental entity and not a state agency,
  likewise has no involvement in determining whether state prisoners are granted
  parole. The Texas Board of Pardons and Parole, a state agency, administers the
  parole process for state prison inmates. Cain v. Tex. Bd. of Pardons and Paroles,
  104 S.W.3d 215, 217 (Tex. App.–Austin 2003, no pet.)(“The Board is vested with
  the power and duty to determine whether and when an inmate should be released
  on parole, conditions of parole, which parolees should be released from
  supervision, and whether parole should be continued, modified, or revoked.” Tex.
  Gov't Code Ann. § 508.044(b) (West Supp. 2003).”).

     4. Eligibility for Parole. An individual convicted of a “3g” offense is not
  eligible for “mandatory supervision release” (parole). Tex. Gov’t. Code, §
  508.149 (“Inmates Ineligible for Mandatory Supervision”). Because Appellant
  was convicted on December 14, 1989 of a murder (Sec. 3(g)(1)(A)) committed on
  January 23, 1989 and the Judgment contains an “affirmative finding under Sec.
  3g(a)(2)” that Plaintiff used a deadly weapon [firearm] in committing the murder
  for which he was convicted and he was sentenced to life in prison, it appears that
  he would therefore not be “eligible for release on parole” under Tex. Gov’t. Code,
  § 508.145(d)(1) since he has not served “30 calendar years” on his sentence.

    5. No Constitutional Right to Release. The murder conviction for which
  Appellant was convicted is a “3g offense.” He is therefore not eligible for
  “mandatory supervision” release under Tex. Gov’t. Code, Sec. 508.149(a) and has

BRIEF OF APPELLEE CITY OF FORT WORTH                                             8
    no protectable constitutional liberty interest in being paroled. Anthony v. Owens,
    2009 WL 4250762 at *2 (Tex. App. – Houston [14th Dist.] July 7, 2009, no
    pet.)(affirming dismissal of an action for declaratory judgment)(“There is no
    constitutional or inherent right of a convicted person to be conditionally released
    before the expiration of a valid sentence.”) “[T]o the extent a parole decision may
    implicate due process rights, . . . remedy is through a post-conviction application
    for writ of habeas corpus filed under article 11.07 of the Code of Criminal
    Procedure . . . in the court of original conviction . . . .” Ex parte Geiken, 28 S.W.3d
    553, 560, 566 (Tex. Crim. App. 2000).

City of Fort Worth’s Motion To Dismiss was procedurally correct and properly granted

for the reasons stated above.


     V. CITY OF FORT WORTH’S ARGUMENT AND AUTHORITIES.

       City of Fort Worth submits the following reasons for affirming the decision of

 the trial court:

       A. Standard Of Review. The appropriate standard of review in this case is

 set out in Scott v. Macha, No. 2-04-157-CV, 2005 WL 375289, at *1 (Tex. App. -

 Fort Worth, Feb. 17, 2005, reh. denied) (not designated for publication):

     Chapter 14 applies to a suit brought by an inmate in which an affidavit or
     unsworn declaration of inability to pay costs is filed by the inmate. TEX.
     CIV. PRAC. & REM. CODE ANN. § 14.002(a). We review a trial
     court's dismissal of an inmate's claim under chapter 14 under an abuse of
     discretion standard. See Bishop v. Lawson, 131 S.W.3d 571, 574 (Tex.
     App.-Fort Worth 2004, pet. denied); Thomas v. Wichita Gen. Hosp., 952
     S.W.2d 936, 939 (Tex. App.-Fort Worth 1997, pet. denied). A court abuses
     its discretion if it acts without reference to guiding rules or principles. See
     Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42
     (Tex.1985), cert. denied, 476 U.S. 1159, 106 S. Ct. 2279, 90 L.Ed.2d 721
     (1986).

 Additionally, when a trial court gives an incorrect legal reason for its decision, an

BRIEF OF APPELLEE CITY OF FORT WORTH                                                   9
 appellate court may nevertheless uphold the order on any other grounds presented

 to the trial court and supported by the record. In re Datamark, Inc., 296 S.W.3d

 614, 616 (Tex. App.–El Paso 2009, no. pet.), citing Luxenberg v. Marshall, 835

 S.W.2d 136, 141–42 (Tex. App.–Dallas 1992, no pet.). See also Alfonso v.

 Skadden, 251 S.W.3d 52, 55 (Tex. 2008) (where record affirmatively reveals

 jurisdictional defect, court of appeals cannot assume alternative basis for jurisdiction

 exists by indulging presumption that “something omitted from the clerk's record

 might have supported jurisdiction”); Univ. of Tex. Sw. Med. Ctr. at Dallas v .

 Loutzenhiser, 140 S . W . 3 d 351, 58 (Tex.        2004) (Subject-matter jurisdiction

 cannot be waived and can be raised at any time.).

      City of Fort Worth moved for dismissal on the grounds listed below under

Sections B - H.

      B. Lack of Subject Matter Jurisdiction.            Appellant sought declaratory

judgment. The stated purpose of the Texas Declaratory Judgments Act is “to settle and

afford relief from uncertainty and insecurity with respect to rights, status, and other

legal relations.” Tex. Civ. Prac. & Rem. Code Ann. § 37.002(b). The Supreme Court

of Texas has held that the Declaratory Judgment Act is “not a grant of jurisdiction, but

a procedural device for deciding cases already within a court's jurisdiction.” Martin

v. State Bd. of Crim. Justice, 60 S.W.3d 226, 230 (Tex.App.-Corpus Christi 2001, no

pet.), citing Chenault v. Phillips, 914 S.W.2d 140, 141 (Tex. 1996). The Act also does

BRIEF OF APPELLEE CITY OF FORT WORTH                                                 10
not permit an award of damages. See City of Houston v. Williams, 216 S.W.3d 827,

829 (Tex. 2007). Therefore, Plaintiff must seek damages under a different authority.

      Texas has no law equivalent to the federal civil rights statute, 42 U. S. Code §

1983, and the Texas Constitution does not create an implied private right of action for

money damages. City of Beaumont v. Bouillion, 896 S.W.2d 143, 147 (Tex. 1995).

Texas common law does not provide a cause of action for damages for the violation

of state constitutional rights. Id. at p. 150. A governmental entity may be liable under

§ 1983 only if the execution of a custom, policy or procedure adopted by the

governmental entity causes a deprivation of a plaintiff’s federal constitutional rights.

Monell v. Department of Social Services, 436 U.S. 658, 690, 98 S.Ct. 2018 (1978).

No policy or procedure of City of Fort Worth is alleged as causing any violation of

Plaintiff’s constitutional rights, including due process or equal protection.

Additionally, Heck v. Humphrey, 512 U.S. 477, 487, 489. 114 S.Ct. 2364, 2372, 2374

(1994) holds that “[a] claim for damages” concerning a conviction or sentence that has

not been so invalidated is not cognizable under § 1983” and the inmate plaintiff's §

1983 claim had not yet arisen because his criminal conviction had not been invalidated.

See also Vargas v. Tex. Dep't. of Criminal Justice, No. 03-12-00119-CV, 2012 WL

5974078, at *3 (Tex. App.—Austin Nov. 30, 2012, pet. denied) (mem. op.) (citing

Heck for the proposition that when a civil suit necessarily implies the invalidity of an

inmate's conviction, it must be dismissed unless the plaintiff can demonstrate that the

BRIEF OF APPELLEE CITY OF FORT WORTH                                               11
sentence has already been invalidated).

         Subject matter jurisdiction is a question of law. Powell v. Stover, 165 S.W.3d

322, 324 (Tex. 2005). “A court must possess both subject matter jurisdiction over a

case and personal jurisdiction over a party to issue a binding judgment.” CSR Ltd. v.

Link, 925 S.W.2d 591, 594 (Tex. 1996). Subject matter jurisdiction refers to the power

of a court to hear a particular type of suit. Id. When an action is grounded in statute,

subject matter jurisdiction must be shown under the applicable statute.          Dubai

Petroleum Co. v. Kazi, 12 S.W.3d 71, 75 (Tex. 2000); In re Barnes, 127 S.W.3d 843,

846–47 (Tex. App.-San Antonio 2003, orig. proceeding). “Subject matter jurisdiction

is never presumed and cannot be waived.” Barnes, 127 S.W.3d at 846. Rather, it “

‘exists by operation of law only, and cannot be conferred upon any court by consent

or waiver.’ ” In re A.D.D., 974 S.W.2d 299, 303 (Tex. App.-San Antonio 1998, no

pet.).    Governmental immunity from suit defeats a trial court's subject matter

jurisdiction. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225 (Tex.

2004). To invoke the district court's subject matter jurisdiction in this case as to any

claim against City of Fort Worth, Appellant was first required to overcome the City's

governmental immunity. The burden is on the plaintiff to plead facts that affirmatively

demonstrate subject matter jurisdiction. Tex. Ass'n of Bus. v. Tex. Air Control Bd.,

852 S.W.2d 440, 446 (Tex. 1993).           Appellant has not shown subject matter

jurisdiction.

BRIEF OF APPELLEE CITY OF FORT WORTH                                               12
      Texas Code of Criminal Procedure, Art. 11.07 (“Procedure after conviction

without death penalty”) “establishes the procedures for an application for writ of

habeas corpus in which the applicant seeks relief from a felony judgment imposing a

penalty other than death.” Art. 11.07, Sec. (b) states (underline added):

    An application for writ of habeas corpus filed after final conviction in a felony
    case, other than a case in which the death penalty is imposed, must be filed
    with the clerk of the court in which the conviction being challenged was
    obtained, and the clerk shall assign the application to that court.

Texas courts also hold that a writ of habeas corpus is the “exclusive remedy” for

addressing alleged irregularities occurring during parole proceedings. In Thompson

v. Aliseda, 2009 WL 200994 at *2 - 3 (Tex. App.–Corpus Christi-Edinburg Jan. 29,

2009, rev. den.), the Court stated:

    Texas courts have held that a person alleging irregularities occurring during
    parole proceedings should raise those issues by way of a post-conviction
    application for writ of habeas corpus under article 11.07 of the code of criminal
    procedure. See Bd. of Pardons & Paroles v. Court of Appeals for the Eighth
    Dist., 910 S.W.2d 481, 484 (Tex.Crim.App.1995); see also Williams v.
    Owens, No. 11-06-00184-CV, 2007 Tex.App. LEXIS 6344, at *5, 2007 WL
    2284551 (Tex.App.-Eastland Aug. 9, 2007, pet. denied) (mem.op.) (per
    curiam) (citing Tex. Code Crim. Proc. Ann. art. 11.07 (Vernon 2005); Bd. of
    Pardons & Paroles, 910 S.W.3d at 484). Article 11 .07 of the code of criminal
    procedure provides that the Texas Court of Criminal Appeals retains the
    exclusive authority to grant relief in such proceedings. See Tex.Code Crim.
    Proc. Ann. art. 11 .07, § 3; see also Bd. of Pardons & Paroles, 910 S.W.2d at
    484. Because a writ of habeas corpus is the exclusive remedy for addressing
    alleged irregularities occurring during parole proceedings, and because
    Thompson is essentially challenging the duration of his incarceration, the trial
    court did not have jurisdiction to grant Thompson the relief requested in his
    original petition.



BRIEF OF APPELLEE CITY OF FORT WORTH                                                13
In Johnson v. Thaler, 2011 WL 1833138 at *1 (Tex. App. – Austin May 12, 2011, no

pet.), the plaintiff claimed that his parole date was wrong because the trial court’s

judgment did not include a deadly weapon finding and asked the court to order that

his TDCJ records be “adjusted to show his parole date and release date.” The trial

court dismissed Johnson’s claim as frivolous, finding that there was no subject matter

jurisdiction. Id. at 3. The Court of Appeals noted that: “The procedure set forth in

article 11.07 is exclusive, and any other proceeding is void and of no force and effect

in discharging the inmate.” Id. at 2. See also Vargas v. Tex. Dep't of Crim. Justice,

No. 03–12–00119–CV, 2012 WL 5974078 at *3 (Tex. App.–Austin Nov. 30, 2012,

no pet.) (mem. op.) (“… state inmates must use only habeas corpus (or similar state)

remedies when they seek to invalidate the duration of their confinement.”).

      C. Governmental Immunity under State Law. City of Fort Worth is immune

from any claim for compensatory or punitive damages by Appellant based on the

doctrine of governmental immunity since immunity from suit for damages is not

waived by TEX. CIV. PRAC. & REM. CODE § 101.021 for the types of claim asserted

by Appellant. Under TEX. CIV. PRAC. & REM. CODE § 101.021, a governmental

entity may be sued only for negligence involving the use or misuse of real or personal

property - not for wrongful conviction or civil rights violations which are considered

intentional torts. Governmental immunity protects local government units, such as

City of Fort Worth, when performing “governmental” functions, which are essentially

BRIEF OF APPELLEE CITY OF FORT WORTH                                              14
those in which a unit is deemed to be acting as an arm of the State and in the interest

of the general public. City of Galveston v. State, 217 S.W.3d 466, 469 (Tex. 2007).

A waiver of governmental immunity by the Texas Legislature may be by statute but

the Legislature's intent to waive immunity must be expressed in “clear and

unambiguous language.” Bacon v. Texas Historical Comm'n, 411 S.W.3d 161, 173

(Tex. App.—Austin 2013, no pet.)

      The Texas Tort Claims Act (“TTCA”), codified in Chapter 101 of the Texas

Civil Practice & Remedies Code, establishes a limited waiver of governmental

immunity and authorizes suits to be brought against governmental units in certain

narrowly-defined circumstances. Tex. Dep't of Crim. Justice v. Miller, 51 S.W.3d 583,

587 (Tex. 2001); see Dallas County MHMR v. Bossley, 968 S.W.2d 339, 341 (Tex.

1998). Texas Civil Practice & Remedies Code, § 101.021 (Governmental Liability)

provides:

   A governmental unit in the state is liable for:
         ...
   (2) personal injury and death so caused by a condition or use of tangible
   personal or real property if the governmental unit would, were it a private
   person, be liable to the claimant according to Texas law.

Claims for false arrest and malicious prosecution are intentional torts. See City of

Hempstead v. Kmiec, 902 S.W.2d 118, 122 (Tex. App.–Houston [1st Dist.] 1995, no

writ) (recognizing false arrest and malicious prosecution as intentional torts). Section

101.057 of the TTCA provides: “This chapter does not apply to a claim ... arising out

BRIEF OF APPELLEE CITY OF FORT WORTH                                               15
of assault, battery, false imprisonment, or any other intentional tort, . . . .” Tex. Civ.

Prac. & Rem. Code Ann. § 101.057(2) (West 2011). Additionally, the TTCA does not

authorize exemplary (punitive) damages. See Tex. Civ. Prac. & Rem. Code Ann. §

101.024 (West 2011) (“This chapter does not authorize exemplary damages.”).

Appellant has not identified any applicable waiver of immunity or alleged any type of

claim not barred by governmental immunity. In Dallas County v. Harper, 913 S.W.2d

207, 207 - 208 (Tex. 1995), the Texas Supreme Court, in holding that use or misuse

of an expunged indictment was not “tangible personal property,” for purposes of

sovereign immunity waiver under the Tort Claims Act, explained that that “simply

reducing information to writing or paper does not make information ‘tangible

personal property.’” Likewise, in Laubach v. State Bar of Texas, No. 03-00-

00282-CV, 2000 WL 1675701, at *1 (Tex. App. – Austin, Nov. 9, 2000, no pet.),

the Court of Appeals stated:

    . . . the Texas Tort Claims Act does not waive immunity for the negligent or
    wrongful use of information contained in papers and documents. Dallas
    County v. Harper, 913 S.W.2d 207, 207-08 (Tex.1995); York, 871 S.W.2d at
    179; DeWitt, 897 S.W.2d at 450-51; Texas Dep't of Human Servs. v.
    Benson, 893 S.W.2d 236, 239-40 (Tex. App.-Austin 1995, writ denied);
    Texas Dep't of Human Servs. v. Sakil, 25 S.W.3d 22, 25 (Tex. App.-El
    Paso 1999, pet. denied); Allen v. City of Midlothian, 927 S.W.2d 316, 322- 23
    (Tex. App.-Waco 1996, no writ). Laubach's suit complains that the State
    Bar misused information contained in his grievance proceeding. Such
    claims do not fall within the limited waiver of immunity contained in the
    Texas Tort Claims Act, and his suit is barred by sovereign immunity.

      D. Prosecution and Parole Decision Not City Functions. City of Fort Worth,


BRIEF OF APPELLEE CITY OF FORT WORTH                                                 16
as a local governmental entity, has no involvement generally in the prosecution of

felony criminal cases by and in the name of the State of Texas or in the criminal case

for which Appellant was convicted in 1989. A criminal district attorney is a state, not

county or city, official when prosecuting criminal cases or engaging in prosecutorial

duties. In Esteves v. Brock, 106 F.3d 674, 678 (5th Cir. 1997), the Fifth Circuit Court

of Appeals stated the following:


           Texas law makes clear, however, that when acting in the prosecutorial
    capacity to enforce state penal law, a district attorney is an agent of the state,
    not of the county in which the criminal case happens to be prosecuted. “Each
    district attorney shall represent the State in all criminal cases in the district
    courts of his district and in appeals therefrom....”14 In Echols v. Parker we
    found that a Texas district attorney is a state official when instituting criminal
    proceedings to enforce state law. A county official “pursues his duties as a
    state agent when he is enforcing state law or policy.”15 In Krueger v. Reimer16
    we found that the actions of a Texas district attorney within the scope of his
    prosecutorial function during a criminal proceeding do not constitute official
    policy for which a county can be held liable.
          14
               Tex. Code Crim. Proc. Ann. art. 2.01; Tex. Const. art. V, § 21;
    Tex.Gov't Code Ann. § 43.180(b) (“The district attorney shall represent the
    state in criminal cases pending in the district and inferior courts of the
    county.”).
           15
              909 F.2d at 801.
           16
              66 F.3d 75 (5th Cir.1995).

Any claim against a criminal district attorney or an assistant criminal district attorney

in an official capacity is also barred by sovereign immunity. In Bacon v. Tex.

Historical Comm'n, 411 S.W.3d 161, 172 (Tex. App.—Austin 2013, no pet.), the Court

noted:


BRIEF OF APPELLEE CITY OF FORT WORTH                                                 17
   Absent Legislative waiver, sovereign immunity deprives Texas courts of
   subject-matter jurisdiction over any suit against the State or its agencies or
   subdivisions. See, e.g., Texas Dep't of Transp. v. Sefzik, 355 S.W.3d 618, 620–
   21 (Tex.2011) (per curiam). That same immunity generally extends to Texas
   state officials who are sued in their official capacities because that “is merely
   ‘another way of pleading an action against the entity of which [the official] is
   an agent.’ ” City of El Paso v. Heinrich, 284 S.W.3d 366, 373 (Tex.2009).

   Claims against a prosecutor in his or her individual (personal) capacity are

generally barred by prosecutorial immunity. “District attorneys and other prosecutors

are absolutely immune from liability when performing their prosecutorial functions.”

Charleston v. Pate, 194 S.W.3d 89, 90 (Tex. App.-Texarkana 2006, no pet.) (citing

Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984 (1976); Font v. Carr, 867 S.W.2d 873

(Tex.App.-Houston [1st Dist.] 1993, writ dism'd w.o.j.); Miller v. Curry, 625 S.W.2d

84, 86-87 (Tex. App.-Fort Worth 1981, writ ref'd n.r.e.)). “Absolute immunity will

shelter a prosecutor even should he act maliciously, wantonly, or negligently. Imbler,

424 U.S. at 416, 96 S.Ct. at 988 (prosecutor was absolutely immune for knowingly

eliciting perjured testimony); . . .” Clawson v. Wharton County, 941 S.W.2d 267, 272

(Tex. App.-Corpus Christi 1996, writ den.).

      City of Fort Worth, as a local governmental entity and not a state agency,

likewise has no involvement in determining whether state prisoners are granted parole.

The Texas Board of Pardons and Parole, a state agency, administers the parole process

for state prison inmates. In Cain v. Tex. Bd. of Pardons and Paroles, 104 S.W.3d 215,

217 (Tex. App.–Austin 2003, no pet.), the Court noted the following:

BRIEF OF APPELLEE CITY OF FORT WORTH                                               18
    The Board is vested with the power and duty to determine whether and when
    an inmate should be released on parole, conditions of parole, which parolees
    should be released from supervision, and whether parole should be continued,
    modified, or revoked. Tex. Gov't Code Ann. § 508.044(b) (West Supp.2003).
    The Board “may adopt reasonable rules” related to parole eligibility, the
    conduct of a parole hearing, or parole conditions. Id. § 508.044(d). The Board
    is also to develop guidelines on which to base parole decisions. Id. §
    508.144(a) (West 1998).

Texas Government Code §508.141 (Authority to Consider and Order Release on

Parole) states:

    (a) A parole panel may consider for release and release on parole an inmate
    who:
    (1) has been sentenced to a term of imprisonment in the institutional division;
    (2) is confined in a penal or correctional institution, including a jail in this
    state, a federal correctional institution, or a jail or a correctional institution in
    another state; and
    (3) is eligible for release on parole.
    (b) A parole is issued only on the order of a parole panel.

Texas Government Code, § 508.0441 (Release and Revocation Duties) states:

    (a) Board members and parole commissioners shall determine:
    (1) which inmates are to be released on parole or mandatory supervision;
    (2) conditions of parole or mandatory supervision, including special
    conditions;
    (3) the modification and withdrawal of conditions of parole or mandatory
        supervision;
    (4) which releasees may be released from supervision and reporting; and
    (5) the continuation, modification, and revocation of parole or mandatory
    supervision.
    ...
    (c) The board may adopt reasonable rules as proper or necessary relating to:
    (1) the eligibility of an inmate for release on parole or release to mandatory
    supervision;
    (2) the conduct of a parole or mandatory supervision hearing; or
    (3) conditions to be imposed on a releasee.

BRIEF OF APPELLEE CITY OF FORT WORTH                                                    19
The Board’s public website (https://www.tdcj.state.tx.us/bpp/ )5 states:

    The Board of Pardons and Paroles decides which eligible offenders to release
    on parole or discretionary mandatory supervision, and under what conditions.
    The Board uses research-based Parole Guidelines to assess each offender's
    likelihood for a successful parole against the risk to society.

See City of Fort Worth’s Appendix (pg. 1) attached hereto. The Board’s website also

states: “Board policies set standards and guidelines for administering the business of

the Board and are adopted by Board vote.” (See website:

http://www.tdcj.state.tx.us/bpp/policies_directives/policies_directives.html.)

Appendix, pg. 2. The Board’s website

(http://www.tdcj.state.tx.us/bpp/what_is_parole/parole.htm)(Appendix, pg. 5)

provides the following explanation of parole and its function:

    PAROLE / MANDATORY SUPERVISION INFORMATION
    What is Parole?
    Parole is the discretionary release of an offender, by a Board of Pardons and
    Paroles decision, to serve the remainder of a sentence in the community under
    supervision.
    Parole is a privilege, not a right.

    What is Mandatory Supervision?
    Mandatory Supervision is a legislatively mandated release of a prisoner to
    parole supervision when the combination of actual calendar time and good
    conduct time equal the sentence. Good conduct time is credited to an offender
    for participating in work and self-improvement programs.


5 Last accessed 11/15/16. A court may take judicial notice of documents and information on
government websites. Williams Farms Produce Sales, Inc. v. R & G Produce Co., 443 S.W.3d 250,
259 (Tex.App.–Corpus Christi 2014, no pet.); Coleman v. Dretke, 409 F.3d 665, 667 (5th Cir. 2005)
(per curiam) (taking judicial notice of Texas agency's website).

BRIEF OF APPELLEE CITY OF FORT WORTH                                                        20
   Not all offenders are eligible. Offenders convicted of offenses listed under
   §508.149(a) Government Code, are not eligible. Also, the Board may deny
   mandatory release on a case-by-case basis for offenders whose offense date
   was on or after September 1, 1996 (Discretionary Mandatory Release).

   Updated 01/16/2013

   City of Fort Worth, as a local governmental entity, has no authority or

responsibility for or involvement in either prosecutorial functions or parole decisions.

Appellant’s claims against City of Fort Worth have no basis in fact or law and

therefore are frivolous and were correctly dismissed.

      E. Eligibility for Parole (Mandatory Supervision Release). After pleading

guilty, Appellant was convicted of murder (offense committed in January, 1989) and

sentenced to life in prison in December, 1989. See Exhibits A – J attached to City of

Fort Worth’s Motion To Dismiss (CR 246 - 256). Texas Government Code § 508.147

(“Release to Mandatory Supervision”) states the following:

   (a) Except as provided by Section 508.149, a parole panel shall order the
   release of an inmate who is not on parole to mandatory supervision when the
   actual calendar time the inmate has served plus any accrued good conduct time
   equals the term to which the inmate was sentenced.
   (b) An inmate released to mandatory supervision is considered to be released
   on parole.

Texas Government Code, § 508.149 (“Inmates Ineligible for Mandatory Supervision”)

provides:

   (a) An inmate may not be released to mandatory supervision if the inmate is
   serving a sentence for or has been previously convicted of:
   (1) an offense for which the judgment contains an affirmative finding under

BRIEF OF APPELLEE CITY OF FORT WORTH                                               21
   Section 3g(a)(2), Article 42.12, Code of Criminal Procedure;
   (2) a first degree felony or a second degree felony under Section 19.02, Penal
   Code; .…

Texas Penal Code, § 19.02 (“Murder”), in relevant part, states:

   (b) A person commits an offense if he:
   (1) intentionally or knowingly causes the death of an individual;
   (2) intends to cause serious bodily injury and commits an act clearly dangerous
   to human life that causes the death of an individual; or
   (3) commits or attempts to commit a felony, other than manslaughter, and in
   the course of and in furtherance of the commission or attempt, or in immediate
   flight from the commission or attempt, he commits or attempts to commit an
   act clearly dangerous to human life that causes the death of an individual.

Texas Code of Criminal Procedure, Art. 42.12, Section 3, identifies “3g offenses”
and states:

   Sec. 3. (a) A judge, in the best interest of justice, the public, and the defendant,
   after conviction or a plea of guilty or nolo contendere, may suspend the
   imposition of the sentence and place the defendant on community supervision
   or impose a fine applicable to the offense and place the defendant on
   community supervision.

   Secs. 3a to 3f. [Blank].
   Sec. 3g. (a) The provisions of Section 3 of this article do not apply:
   (1) to a defendant adjudged guilty of an offense under:
   (A) Section 19.02, Penal Code (Murder); . . . .
   (2) to a defendant when it is shown that a deadly weapon as defined in Section
   1.07, Penal Code, was used or exhibited during the commission of a felony
   offense or during immediate flight therefrom, and that the defendant used or
   exhibited the deadly weapon or was a party to the offense and knew that a
   deadly weapon would be used or exhibited. On an affirmative finding under
   this subdivision, the trial court shall enter the finding in the judgment of the
   court. On an affirmative finding that the deadly weapon was a firearm, the
   court shall enter that finding in its judgment.

Like community supervision (probation), an individual convicted of a “3g” offenses



BRIEF OF APPELLEE CITY OF FORT WORTH                                                  22
is not eligible for “mandatory supervision release” (parole). See above: Tex. Gov’t.

Code, § 508.149 (“Inmates Ineligible for Mandatory Supervision”). In Boykin v.

Tauss, 2016 WL 743423, *2+, Tex. App.-Houston [1st Dist.] Feb. 25, 2016, no pet.),

the Court explained Government Code § 508.145 (“Eligibility for Release on Parole;

Computation of Parole Eligibility Date”) as follows:

   The statute governing parole for “3g” crimes does not require that the Board
   grant the inmate parole at that first opportunity. See Tex. Gov't Code Ann. §
   508.145(d)(1) (“An inmate serving a sentence for offense described by Section
   3g ... is not eligible for release on parole until the inmate's actual calendar time
   served ... equals one-half of the sentence....”). “[P]arole is a privilege not a
   right to which an inmate is entitled once he or she accrues a set amount of
   time-served credit.” Cain v. Tex. Bd. of Pardons and Paroles, 104 S.W.3d 215,
   218 (Tex.App.–Austin 2003, no pet.). “When the inmate accrues sufficient
   time-served credit, the Board determines whether to grant or deny parole.”
   Cain, 104 S.W.3d at 217; see Tex. Gov't Code Ann. § 508.044(a)(1) (West
   2012) (“Board members ... shall determine which inmates are to be released
   on parole....”); . . .

Texas Government Code, § 508.145(d)(1) however states:

   (d)(1) An inmate serving a sentence for an offense described by Section
   3g(a)(1)(A), (C), (D), (E), (F), (G), (H), (I), (J), (K), (L), (M), or (N), Article
   42.12, Code of Criminal Procedure, an offense for which the judgment
   contains an affirmative finding under Section 3g(a)(2) of that article, an
   offense under Section 20A.03, Penal Code, or an offense under Section 71.02
   or 71.023, Penal Code, is not eligible for release on parole until the inmate's
   actual calendar time served, without consideration of good conduct time,
   equals one-half of the sentence or 30 calendar years, whichever is less, but in
   no event is the inmate eligible for release on parole in less than two calendar
   years.

(Bold/underline added.) Because Appellant was convicted on December 14, 1989 of

a murder (Sec. 3(g)(1)(A)) committed on January 23, 1989, the Judgment contains an

BRIEF OF APPELLEE CITY OF FORT WORTH                                                  23
“affirmative finding under Sec. 3g(a)(2)” that Appellant used a deadly weapon

[firearm] in committing the murder for which he was convicted and he was sentenced

to life in prison, he would therefore not be “eligible for release on parole” since he has

not served “30 calendar years” on his sentence. Section 508.145(d)(1) does not

establish a mandatory date that the Board is required to release him on parole but only

establishes the earliest date on which he may be eligible for release on parole. Due to

the type of his offense, Perez is not entitled to parole.

      F. No Constitutional Right To Release. In Anthony v. Owens, 2009 WL

4250762 at *2 (Tex. App. – Houston [14th Dist.] July 7, 2009, no pet.), in affirming

dismissal of an action for declaratory judgment, the Court of Appeals stated:

   There is no constitutional or inherent right of a convicted person to be
   conditionally released before the expiration of a valid sentence. Greenholtz v.
   Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1, 7, 99
   S.Ct. 2100, 60 L.Ed.2d 668 (1979). Once a person has been convicted of an
   offense, he has no constitutional right to be released on parole before
   completion of his sentence. Clark v. State, 754 S.W.2d 499, 501 (Tex.App.-
   Fort Worth 1988, no pet.). The decision to release or not release an inmate,
   even though he is eligible for parole, remains within the sound discretion of
   the Board of Pardons and Paroles and is not the basis for a due process
   challenge. See Nabelek, 2003 WL 1738392, at *1; see also Ex parte Geiken,
   28 S.W.3d 553, 556 (Tex.Crim.App.2000).
   ...
        To bring a due process claim, the plaintiff must assert a liberty or property
   interest that is protected by the Fourteenth Amendment to the United States
   Constitution. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 569-
   70, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Concerned Cmty. Involved Dev.,
   Inc. v. City of Houston, 209 S.W.3d 666, 671 (Tex.App.-Houston [14th Dist.]
   2006, pet. denied). The Court of Criminal Appeals has determined that there
   is a protectable liberty interest in mandatory supervision release under section

BRIEF OF APPELLEE CITY OF FORT WORTH                                                 24
      508.149 of the Government Code. Geiken, 38 S.W.3d at 559. However,
      inmates convicted of certain offenses, including capital murder, are not eligible
      for mandatory supervision release. Tex. Gov't Code Ann. § 508.149(a)
      (Vernon Supp.2008).

Like the capital murder conviction involved in Anthony, the murder for which

Appellant was convicted is also a “3g offense” and Appellant is therefore not eligible

for “mandatory supervision” release under Sec. 508.149(a) 6 and has no protectable

constitutional liberty interest in being paroled. See Exhibit K (Parole & Mandatory

Supervision Eligibility Chart) to City of Fort Worth’s Motion to Dismiss (CR 259).

         Under § 508.145(d)(1),(2), an inmate with a “3g” conviction “is not eligible for

release on parole until the inmate's actual calendar time served, without consideration

of good conduct time, equals one-half of the sentence or 30 calendar years, whichever

is less . . . .” For inmates who are eligible for discretionary or mandatory parole but

are denied parole by the Board, “the parole panel's decision to deny release is not

subject to judicial review.” Ex parte Geiken, 28 S.W.3d 553, 560, 566 (Tex. Crim.

App. 2000). While “the procedures implemented by the Board when reviewing an

eligible inmate’s release are reviewable” and the inmate is entitled to “some minimal



6   Texas Government Code, § 508.149 (“Inmates Ineligible for Mandatory Supervision”):

      (a) An inmate may not be released to mandatory supervision if the inmate is serving a
      sentence for or has been previously convicted of:
      (1) an offense for which the judgment contains an affirmative finding [deadly weapon used]
      under Section 3g(a)(2), Article 42.12, Code of Criminal Procedure;
      (2) a first degree felony or a second degree felony under Section 19.02 [murder], Penal Code; .
...

BRIEF OF APPELLEE CITY OF FORT WORTH                                                            25
due process” (reasonable notice and opportunity to be heard), “to the extent a parole

decision may implicate due process rights, . . . remedy is through a post-conviction

application for writ of habeas corpus filed under article 11.07 of the Code of Criminal

Procedure . . . in the court of original conviction . . . .” Id. at 560, Hills v. State, 2011

WL 5343690 at *1 (Tex. App.-Austin Nov. 04, 2011, no pet.); Ex parte Jeremy Lee

Acuna, 2012 WL 77219 at *1 (Ct. Crim. App. 2012).

      G. No Damages Recoverable by Appellant. As explained above, Mr. Perez

has no property damage. He claims no physical (bodily) injury. Plaintiff’s Petition

(pg. 5) states: “... information from Defendants … over and over ... deny plaintiff …

release on parole ...” (CR 10) and defendants “… intentionally (illegally) altered …

files, records, reports and indictment … to conceal the illegal manufacture [of]

indictment ….” (CR 11). In Wornick Co. v. Casas, 856 S.W.2d 732, 734 (Tex.

1993), the Texas Supreme Court stated:

     We recently recognized the tort of intentional infliction of emotional
     distress, adopting the elements set forth in Restatement (Second) of Torts §
     46 (1965). Twyman v. Twyman, 855 S.W.2d 619 (Tex.1993). To recover
     under this tort, the plaintiff must prove that 1) the defendant acted
     intentionally or recklessly, 2) the conduct was “extreme and outrageous,”
     3) the actions of the defendant caused the plaintiff emotional distress, and
     4) the resulting emotional distress was severe. Id. at 621.

 In Texas Youth Com'n v. Garza, No. 13–11–00091–CV, 2011 WL 2937431, at *2

 (Tex. App.–Corpus Christi–Edinburg July 11, 2011, no. pet.)(mem. op., not

 designated for publication), the Court noted the following:

BRIEF OF APPELLEE CITY OF FORT WORTH                                                    26
     The TTCA expressly retains the State's sovereign immunity for claims
     “arising out of assault, battery, false imprisonment, or any other intentional
     tort,” including claims for intentional infliction of emotional distress. Id. §
     101.057(2); see Nueces County v. Ferguson, 97 S.W.3d 205, 223
     (Tex.App.-Corpus Christi 2002, no pet.) (“[T]he Texas Tort Claims Act
     specifically preserves sovereign immunity as to intentional torts.... Thus
     sovereign immunity is not waived for a claim of intentional infliction of
     emotional distress.”).

 The TTCA clearly does not allow recovery for intentional infliction of emotional

 damages. 7

      H. Declaratory Judgment Unavailable. Appellant’s Petition (CR 6 – 19)

seemingly requested the trial court to grant “declaratory judgment relief” as to (1)

procedural matters related to his conviction, (2) compensatory and punitive monetary

damages, and (3) denial of his release from prison (parole). In Miles v. Perry, No. 03-

07-00023-CV, 2009 WL 2567914, at *2 (Tex. App.–Austin Aug. 21, 2009, pet.

denied)(mem. op., not designated for publication), the court of appeals citing Texas

Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993), found that


 7The Eastland Court of Appeals, in Nelson v. SCI Texas Funeral Services, Inc., No. 11–13–
 00334–CV, 2016 WL 368437 (Tex. App. – Eastland, Jan. 29, 2016, no pet.)(not designated for
 publication) recently noted:

     The Texas Supreme Court revisited a claim of negligent infliction of mental anguish in
     City of Tyler v. Likes, 962 S.W.2d 489, 492–93 (Tex.1997). Likes involved a suit
     against a municipality for flood damage. 962 S.W.2d at 492. The property owner
     sought damages for mental anguish based on flood damage to her home. Id. at 492–
     93. The supreme court held that the property owner could not recover damages for
     mental anguish arising out of harm to her property. Id. at 493. The court in Likes
     expounded upon its earlier holding in Boyles that Texas does not recognize a general
     legal duty to avoid negligently inflicting mental anguish. Id. at 494.


BRIEF OF APPELLEE CITY OF FORT WORTH                                                          27
the trial court had no jurisdiction in suit for declaratory judgment to determine that the

statute on which conviction was based was unconstitutional and stated:

     The Uniform Declaratory Judgments Act (“the Act”)[Tex. Civ. Prac. &
     Rem. Code Ann. §§37.001-.011] is merely a procedural device for
     deciding cases already within a court's jurisdiction rather than a legislative
     enlargement of a court's power, permitting the rendition of advisory
     opinions. Id. The Act does not extend a trial court's jurisdiction, and a
     litigant's request for declaratory relief does not confer jurisdiction on a
     court or change a suit's underlying nature. Texas Natural Res. Conservation
     Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002). Finding that Miles'
     petition is, in reality, an application for writ of habeas corpus and that only
     the court of criminal appeals has jurisdiction to entertain such an application,
     we hold that the district court lacked subject- matter jurisdiction to consider
     this matter and that any opinion issued by that court would have been
     advisory.

           We affirm the court's order granting the plea to the jurisdiction and
     dismissing this cause.

       Subsequent to and apparently in response to City of Fort Worth’s Motion To

Dismiss8 filed on 6/01/2016 pursuant to TEX. CIV. PRAC. & REM. CODE, Chapter

14 (“INMATE LITIGATION”), Sec. 14.001, et seq., Appellant filed various

documents including:

       1) Plaintiff’s Motion And Support of Request for Default Judgment (filed
          5/24/2016);
       2) Plaintiff’s Motion In Exception To Defendant’s Original Answer (filed
          5/31/2016);
       3) Plaintiff’s Rejection Of Defendant’s Motion To Dismiss (filed 6/6/2016);


8 This motion may be decided on submission (without hearing). Hamilton v. Williams, 298 S.W.3d
334, 340 (Tex. App.–Fort Worth 2009, pet. denied) (“an inmate who brings a claim falling within
the scope of chapter fourteen has no right to notice of a motion to dismiss, nor to a mandatory
hearing”).

BRIEF OF APPELLEE CITY OF FORT WORTH                                                      28
      4) Plaintiff’s (Immunity) Objection To Defendant Tarrant County’s Request
         to Dismiss Pursuant to Chapter 14 (filed 6/7/2016).

Document 1 above was received by City of Fort Worth’s attorney of record from

Appellant on 6/7/16. CR 211. Documents 2, 3, and 4 (CR 223, CR 264, CR 266)

were not served on City of Fort Worth’s attorney by Plaintiff as required by Tex. R.

Civ. P., Rule 21a (“Methods of Service”) and copies were requested by counsel from

the Court Clerk. Although it is difficult to understand his arguments, it appears that

Appellant, by the documents listed above, essentially seeks to raise the following

issues:

   1. Sufficiency of City of Fort Worth’s Motion To Dismiss as a responsive pleading
      under Rules 25, 26, 45, 47, Tex. R. Civ. P. [Plaintiff’s Documents 1 - 4];
   2. Proper Venue in this case [Plaintiff’s Document 4];
   3. The caption or style of City of Fort Worth’s Motion To Dismiss not showing
      Stuart Jenkins, the Director of the Parole Division of the Texas Department of
      Criminal Justice, as a plaintiff in this action. [Plaintiff’s Document 4]

City of Fort Worth addressed each of these issues as follows:

      1. Sufficiency of City of Fort Worth’s Motion To Dismiss as a responsive
         pleading.

      In his responses, Appellant refers to Rules 25, 26, 45 and 47, Tex. R. Civ. P.

Rule 25 (entitled “Clerk’s File Docket”) states:

    Each clerk shall keep a file docket which shall show in convenient form the
    number of the suit, the names of the attorneys, the names of the parties to the
    suit, and the nature thereof, and, in brief form, the officers return of process,
    and all subsequent proceedings had in the case with the dates thereof.

Rule 26 (entitled “Clerk’s Court Docket”) states:

BRIEF OF APPELLEE CITY OF FORT WORTH                                                29
   Each clerk shall also keep a court docket in a permanent record that shall
   include the number of the case, and the names of the parties, the name of the
   attorneys, the nature of the action, the pleas, the motions, and the ruling of the
   court as made.

Rule 45 (entitled “Definition & System”) states:

   Pleadings in the district and county courts shall
   (a) be by petition and answer;
   (b) consist of a statement in plain and concise language of the plaintiff’s cause
       of action or the defendant’s grounds of defense. That an allegation be
       evidentiary or be of legal conclusion shall not be grounds for an objection
       when fair notice to the opponent is given by the allegations as a whole; and
   (c) contain any other matter which may be required by any law or rule
       authorizing or regulating any particular action or defense.
       ...
    All pleadings shall be construed so as to do substantial justice.

Rule 47 (entitled “Claims For Relief”) states:

   An original pleading which sets forth a claim for relief, whether an original
   petition, counterclaim, cross-claim, or third party claim, shall contain:
   (a) a short statement of the cause of action sufficient to give fair notice of the
       claim involved;
   (b) a statement the damages sought are within the jurisdictional limits of the
       court; ….

None of the foregoing rules indicates that City of Fort Worth’s Motion To Dismiss was

for any reason insufficient or improper. Tex. R. Civ. P., Rule 85 (entitled “Original

Answer; Contents”) states:

   The original answer may consist of motions to transfer venue, pleas to the
   jurisdiction, in abatement, or any other dilatory pleas; of special exceptions, of
   general denial, and any defense by way of avoidance or estoppel, and it may
   present a cross-action, which to that extent will place defendant in the attitude
   of a plaintiff. Matters in avoidance and estoppel may be stated together, or in



BRIEF OF APPELLEE CITY OF FORT WORTH                                                30
    several special pleas, each presenting a distinct defense, and numbered so as
    to admit of separate issues to be formed on them.

The term “answer” has been construed to mean a “written pleading of some character.”

Santex Roofing & Sheet Metal, Inc. v. Venture Steel, Inc., 737 S.W.2d 55, 56 (Tex.

App.-San Antonio 1987, no writ). Defendant City of Fort Worth filed a motion to

dismiss under Chapter 14 (“Inmate Litigation”), Texas Civil Practices and Remedies

Code, since the statutory procedure established is specifically intended to provide for

“judicial screening” of pro se inmate suits. Other authorized, comparable procedures

include plea to the jurisdiction under Rule 85, Tex. R. Civ. P. (for state negligence/tort

claims) and/or motion for summary judgment under Rule 166a(b), Tex. R. Civ. P. (for

state and federal claims).

      A motion to dismiss filed pursuant to Chapter 14, TEX. CIV. PRAC. & REM.

CODE, is effectively a plea to the jurisdiction and constitutes a responsive pleading

under Tex. R. Civ. P., Rule 85 (“Original Answer; Contents”). City of Fort Worth’s

Motion To Dismiss is based, in part, on governmental immunity and lack of subject

matter jurisdiction. In Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217,

226 (Tex. 2004), the Texas Supreme Court stated that: “Sovereign immunity from suit

defeats a trial court's subject matter jurisdiction and thus is properly asserted in a plea

to the jurisdiction.” In Villarreal v. Harris County, 226 S.W.3d 537, 541 (Tex. App.-

Houston [1st Dist.] 2006, no pet.), the Court of Appeals stated the following:



BRIEF OF APPELLEE CITY OF FORT WORTH                                                  31
    A plea to the jurisdiction is a dilatory plea that seeks dismissal of a case for
    lack of subject matter jurisdiction. Harris County v. Sykes, 136 S.W.3d 635,
    638 (Tex. 2004). We review a trial court's ruling on a plea to the jurisdiction
    de novo because the question of whether a court has subject matter jurisdiction
    is a matter of law. Hoff v. Nueces County, 153 S.W.3d 45, 48 (Tex.2004); Tex.
    Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004).
    Governmental immunity from suit defeats a trial court's subject matter
    jurisdiction and thus is properly asserted in a plea to the jurisdiction.1
    Miranda, 133 S.W.3d at 225–26.
       1
         As the Texas Supreme Court has observed, (1) sovereign immunity
       refers to the State's immunity from suit and liability and protects the State
       and its divisions, and (2) governmental immunity protects political
       subdivisions of the State, including counties, cities, and school districts.
       Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n. 3 (Tex.
       2003).

A suit brought by an inmate in which the inmate files an affidavit of inability to pay

costs may be dismissed if the trial court finds that the claim is frivolous or malicious,

such as where the claim's realistic chance of success is slight or the claim has no

arguable basis in law. See TEX. CIV. PRAC. & REM. CODE, §§ 14.001(1),

14.002(a), 14.003(a)(2), (b)(1)-(2) (Vernon 2002). Nabelek v. Garrett, 2003 WL

21710243, at *2 (Tex. App.-Houston [14th Dist.] July 24, 2003, pet. denied) (mem.

op.)(“Not only do the conditions for dismissal under section 14.003 not require a

motion to be filed by a defendant, they allow a trial court to dismiss a case before

process has even been served. Tex. Civ. Prac. & Rem. Code Ann. § 14.003(a) .. . .”).

      I. Proper Venue. Plaintiff’s (Immunity) Objection To Defendant Tarrant

County’s Request to Dismiss Pursuant to Chapter 14 (filed 6/7/2016) makes reference

to transfer of venue. Plaintiff’s “Petition For Declaratory Judgment” was filed March

BRIEF OF APPELLEE CITY OF FORT WORTH                                                32
16, 2016. Actions for declaratory judgments are governed by general venue rules for

civil actions. Bonham State Bank v. Beadle, 907 S.W.2d 465 (Tex. 1995). Tex. Civ.

Prac. & Rem. Code Ann. § 15.002 (“Venue: General Rule”) states:

   (a) Except as otherwise provided by this subchapter or Subchapter B or C, all
   lawsuits shall be brought:
      (1) in the county in which all or a substantial part of the events or omissions
      giving rise to the claim occurred;
      (2) in the county of defendant's residence at the time the cause of action
      accrued if defendant is a natural person;
      (3) in the county of the defendant's principal office in this state, if the
      defendant is not a natural person; or
      (4) if Subdivisions (1), (2), and (3) do not apply, in the county in which the
      plaintiff resided at the time of the accrual of the cause of action.

   (b) For the convenience of the parties and witnesses and in the interest of
   justice, a court may transfer an action from a county of proper venue under this
   subchapter or Subchapter C to any other county of proper venue on motion of
   a defendant filed and served concurrently with or before the filing of the
   answer, where the court finds:
      (1) maintenance of the action in the county of suit would work an injustice
      to the movant considering the movant's economic and personal hardship;
      (2) the balance of interests of all the parties predominates in favor of the
      action being brought in the other county; and
      (3) the transfer of the action would not work an injustice to any other party.

To the extent Appellant seeks to assert any claim for damages, under the Texas Tort

Claims Act (codified in Chapter 101 of the Texas Civil Practice & Remedies Code,),

Section 101.102 states:

   (a) A suit under this chapter shall be brought in state court in the county in
   which the cause of action or a part of the cause of action arises.
   ....




BRIEF OF APPELLEE CITY OF FORT WORTH                                                33
The Defendants did not request or object to transfer of this case from Travis County

to a district court in Tarrant County. Furthermore, Appellant attempted to name a state

agency and a state official as parties.

       J. Designation of Parole Division Director as a Plaintiff.             Appellant was

apparently attempting to name or designate, as a plaintiff, Stuart Jenkins, who was the

Director of the Parole Division of the Texas Department of Criminal Justice. 9

Appellant has not shown any authority or standing that he possesses or legal or factual

basis permitting him to (1) designate Stuart Jenkins, in an official or personal capacity,

as a plaintiff in this case or (2) bring suit on behalf of the Director of the Parole

Division or the State of Texas. Furthermore, Appellant did not show that the Director

of the Parole Division is a proper or necessary party to this action. The Parole

Division’s website (https://www.tdcj.state.tx.us/divisions/parole/ ) states:

       The Parole Division supervises offenders released from prison who are
    serving out their sentences in Texas communities. The Division also performs
    some pre-release functions by investigating the parole plans proposed by
    inmates and by tracking parole eligible cases and submitting them for timely
    consideration by the Board of Pardons and Paroles.
       The Division does not make release decisions, nor does it decide whose
    parole should be revoked or what special conditions should be placed on
    releasees. Authority for those decisions rests with the Board of Pardons and
    Paroles, but the Division works closely with the Board and provides Board
    members with the documentation needed to make informed decisions.

9Pamela Thielke is the current director. See Parole Division’s website:
https://www.tdcj.state.tx.us/divisions/parole/ . Last accessed 11/15/2016. (Appendix, pg. 7)
Stuart Jenkins retired effective August 31, 2016. See:
https://www.tdcj.state.tx.us/connections/MayJune2016/Images/MayJun2016_agency_jenkins.pdf


BRIEF OF APPELLEE CITY OF FORT WORTH                                                     34
(Appendix, pg. 7) Plaintiff is not a parolee and did not allege or demonstrate any

necessary or proper reason for designating Stuart Jenkins as a plaintiff.

      Furthermore, Tex. R. Civ. P., Rule 79 (“Petition”) provides that: “The petition

shall state the names of the parties and their residences, if known, together with the

contents prescribed in Rule 47 above.” A plaintiff should identify the true parties. The

question of who are the parties to a case is a legal question determined primarily by

reviewing the pleadings. Rhey v. Redic, 408 S.W.3d 440, 463 (Tex. App.–El Paso

2013, no pet.) A plaintiff must have both standing and capacity to bring suit. Dakil v.

Lege, 408 S.W.3d 9, 2012 WL 5247300 at *2 (Tex. App.–El Paso 2012, no pet.).

Standing focuses on whether a party has a sufficient relationship with the lawsuit so as

to have a justiciable interest in the outcome, whereas capacity is a procedural issue

addressing the personal qualifications of a party to litigate. Dakil, 2012 WL 5247300 at

*1. “A plaintiff has standing when it is personally aggrieved, regardless of whether it is

acting with legal authority; a party has capacity when it has the legal authority to act,

regardless of whether it has a justiciable interest in the controversy.” Dakil, 2012 WL

5247300 at *1. Nothing in Appellant’s pleadings met these requirements as to Stuart

Jenkins, as Parole Division Director. Furthermore, the public access website for the

Office of General Counsel for the Texas Department of Criminal Justice

[https://www.tdcj.state.tx.us/divisions/ogc/index.html) (last accessed 11/7/2016)] states



BRIEF OF APPELLEE CITY OF FORT WORTH                                               35
that office “provides advice and counsel to the Texas Department of Criminal Justice

(TDCJ) regarding . . . sentence time calculation, parole, and community supervision

matters.” (Appendix, pg. 9) Sharon Felfe Howell is the current TDCJ General Counsel

according to the website. (Appendix, pg. 9)


                           VI. CONCLUSION AND PRAYER

      Appellant’s claims against City of Fort Worth and the other defendants are

frivolous. City of Fort Worth, as a unit of local government, is not responsible for and

has no authority to prosecute felony criminal cases, administer the parole process or

make parole decisions. Prosecution and parole decisions are responsibilities carried

out by state officials acting on behalf of the State of Texas. For the foregoing reasons,

City of Fort Worth requests the Court to affirm dismissal of all claims against City of

Fort Worth.

       Mr. Perez seeks to challenge his conviction or denial of parole/release in a

 manner not authorized by statute or Texas courts. Texas does not have a state civil

 rights action for state law or constitutional violations comparable to 42 U.S. Code

 § 1983 (authorizing suit for intentional torts violating federal constitutional rights).

 Johnson v. Thaler, No. 02–10–00435–CV, 2011 WL 1833138, at *2 (Tex. App.

 – Fort Worth, May 12, 2011, no pet.)(mem. op., not designated for publication).

 “[S]overeign immunity deprives a trial court of subject matter jurisdiction for

 lawsuits in which the state or certain governmental units have

BRIEF OF APPELLEE CITY OF FORT WORTH                                                 36
been sued[,] unless the state consents to suit.” City of North Richland Hills v.

Home Town Urban Partners, Ltd., 340 S.W.3d 900, 906 (Tex. App.–Fort Worth,

2011, no pet.), quoting Texas Dept. of Parks and Wildlife v. Miranda, 133 S.W.3d

217, 224 (Tex. 2004). The District Court correctly determined that Appellant had

no claim or cause of action over which jurisdiction could be exercised. Appellant’s

suit for declaratory judgment and/or damages against City of Fort Worth is clearly

barred on multiple grounds.

      Appellee City of Fort Worth requests that this Court affirm the trial

court's dismissal of Appellant's claims for the reasons set forth above.

                                     Respectfully submitted,

                                     /s/ Laetitia Coleman Brown
                                     Laetitia Coleman Brown
                                     Senior Assistant City Attorney
                                     State Bar No. 00792417
                                     laetitia.brown@fortworthtexas.gov

                                     Gerald Pruitt
                                     Deputy City Attorney
                                     State Bar No. 16369200
                                     gerald.pruitt@fortworthtexas.gov

                                     Office of the City Attorney
                                     1000 Throckmorton Street
                                     Fort Worth, Texas 76102-6311
                                     817.392.7600
                                     817.392.8359 Facsimile

                                     Attorneys for Defendant/Appellee
                                     City of Fort Worth

BRIEF OF APPELLEE CITY OF FORT WORTH                                            37
                     CERTIFICATE OF COMPLIANCE
      The undersigned hereby certifies that this document complies with the

margin, spacing, and typeface requirements of Texas Rule of Appellate Procedure

9.4. The undersigned certifies that this document was produced on a computer using

Microsoft Word and contains 10,377 words, as determined by the computer’s

software word-count function, excluding the sections of the document listed in

Texas Rule of Appellate Procedure 9.4(i)(1).




BRIEF OF APPELLEE CITY OF FORT WORTH                                           38
                         CERTIFICATE OF SERVICE

      I, Laetitia Coleman Brown, do hereby certify that a true and correct copy of the
above and foregoing Brief of Defendant-Appellee City of Fort Worth was served on
the following persons and/or parties, on November 17, 2016, in the manner indicated:

Alejos Perez               BY CM/RRR #7015 1520 0002 8614 9087
TDCJ # 00535652
TDCJ - Clements Unit
9601 Spur 591
Amarillo, Texas 79107
APPELLANT / PLAINTIFF PRO SE

J. R. Molina, Attorney                      BY EMAIL
State Bar No. 14256500
email: jrmolinalaw@gmail.com
1301 N. Houston Street
Fort Worth, Texas 76164
Tel: 817-624-4700; FAX: 817-624-9434
DEFENDANT / APPELLEE PRO SE

Christopher Lee Lindsey                   BY EMAIL
Assistant Attorney General
State Bar No. 24065628
Email: christopher.lindsey@texasattorneygeneral.gov
P. O. Box 12548, Capitol Station
Austin, Texas 78711
State Bar No. 24065628
Tel: 512-463-2080; FAX: 512-936-2109
COUNSEL FOR TEXAS DEPARTMENT
OF PUBLIC SAFETY CRIME LABORATORY




BRIEF OF APPELLEE CITY OF FORT WORTH                                             39
Russell A. Friemel                   BY EMAIL
Assistant Criminal District Attorney
Tarrant County, Texas
State Bar No. 07473500
Tim Curry Criminal Justice Center
401 West Belknap Street, 9th Floor
Fort Worth, Texas 76196
Email: RAFRIEMEL@tarrantcountytx.gov
Tel: 817-884-1233; Fax: 817-884-1675
COUNSEL FOR DEFENDANT / APPELLEE TARRANT COUNTY




BRIEF OF APPELLEE CITY OF FORT WORTH              40
                                     No. 03-16-00545-CV



        COURT OF APPEALS FOR THE TIDRD JUDICIAL DISTRICT
                                          AUSTIN, TEXAS

                                  ALEJOS PEREZ,
                                                            PLAINTIFF-APPELLANT
                                          vs.
                 FORT WORTH POLICE DEPARTMENT,
       TEXAS DEPARTMENT OF PUBLIC SAFETY CRIME LABORATORY,
                  TARRANT COUNTY AND J. R. MOLINA,
                                    DEFENDANTS-APPELLEES



                     ON APPEAL FROM THE 345TH DISTRICT COURT
                             TRAVIS COUNTY, TEXAS


                                APPENDIX TO
                BRIEF OF APPELLEE CITY OF FORT WORTH, TEXAS

                                                                                               Tab

Information from Public Access Website
   for Texas Department of Criminal Justice-Board of Pardons
   and Paroles-"A Decision Making Body" ... ..... .... .. ......................................... A

Infmmation from Public Access Website
   for Texas Department of Criminal Justice-Board of Pardons
   and Paroles-"Board Policies and Directives" ................................. ........ ........ B

Information from Public Access Website
   for Texas Department of Criminal Justice-Board of Pardons
   and Paroles-"Parole/Mandatory Supervision Information" ........................... C



BRIEF OF APPELLEE CITY OF FORT WORTH                                                                 41
        EXHIBIT A



BRIEF OF APPELLEE CITY OF FORT WORTH   42
Texas Board of Pardons and Paroles Home Page                                                                                           Page 1 of 1




                                               TEXAS BOARD OF PARDONS AND
                                                        PAROLES


                Main

    Parole/Mandatory Supervision
                                     A DECISION-MAKING BODY
         Pa role Guidelines
                                     The Board of Pardons and Paroles decides which eligible offenders to release on parole or
   Offender Search/Parole Rev iew
            Information              discretionary mandatory supervision, and under what conditions. The Board uses research-based
                                     Parole Guidelines to assess each offender's likelihood for a successful parole a~alnst the risk to
         Parole Revoca tfons         society.
             Clemency
                                     The Board also decides whether to revoke parole if conditfons are not fTlet , using a. graduated sanctions
     Frequently Asked Questions      approach. Depending on the seriousness of the violatron, the Board may continue parole, impose
                                     additional conditions, place the offender in an Intermediate Sanction Facility, or use other alternatives to
            Publications
                                     revoking parole. and sending the offender back to prison.
         Public Information!
          Communications             Additionally, the Board recommends clemency matters, including pardons, to the Governor.
            Ombudsman
                                     Main Office- 512-406-5452~             Parole Status Line - 844-512-0461 ~
               Forms

               Rules
                                     LATEST BOARD NEWS:
       Policies and Directives       Governor Abbott appoints Gutierrez Chair. names Robertson Member of Board of Pardons and Paroles
        Contacl Information
                                     Senate Approves Governor Abbott Appointee Fred Solis to BPP
              AboutUs
                                     Governor Perry Appoints Rangel to BPP
               Links
                                     TXBPP Announces New Nationwide Toll-Fr~e Telephone Number

                                     Read the members' biographies and office assignments

                                     Statement on parole release of civilly committed offenders

                                     "Parole in Te)(as" available on-llne

                                     Parole granted more often, revoked less

                                     Link to the Texas Veterans Portal: A resource for veterans, their families and their survivors.
                                     link to Association of Paroling Authorities International

                                     Updated 10/28/2016


Access ibllity I Contact Us I Terms of Use I Privacy Statement
©2007 Texas Board of Pardons and Paroles. All rights reserved .




http://www.tdcj .state.tx.us/bpp/                                                                                                      11/15/2016
        EXHIBIT B



BRIEF OF APPELLEE CITY OF FORT WORTH   43
Texas Board of Pardons and Paroles. Policies and Directives Page                                            Page 1 of 3




                                     TEXAS BOARD OF PARDONS
                                           AND PAROLES
                                                                                                            -
             Main

 Parole/Mandatory Supervision
                                BOARD POLICIES AND DIRECTIVES
      Parole Guidelines         Board policies set standards and guidelines for administering the business of the
                                Board and are adopted by Board vote.
      Parole Revocations

          Clemency              Board Directives are tnore specific instructions in carrying out its statutory
                                responsibilities and are issued by Chair/Presiding Officer.
  Frequently Asked Questions

         Publications           Anyone wishing to create a Policy Handbook may click on the Table of
                                Contents below, save the file to a hard drive, and print the document for
      Public Information/       insertion in a binder. The Table of Contents and specific pages may be replaced
       Communications
                                whenever updated ,
         Ombudsman
                                Table of Contents
            Forms

            Rules
                                Please click on the Table of Contents name below, and save the file to your hard
                                drive. You can then print the document and insert it in your Policy Handbook.
    Policies and Directives     You can throw away the Table of Contents that this one supersedes.
     Contact Information
                                Policy Handbook Table of Contents 09/27/2016
          About Us
                                Policies
            Links
                                !Policy                       JJName
                                                              I BOARD OF PARDONS AND PAROLES MISSION
                                IBPP- POL.141 .200
                                                                STATEMENT
                                                                POLICY STATEMENT ON INTERNAL AUDIT
                                BPP-POL.141 .201
                                                                PROCEDURES
                                  PP-POL 141.202                PUBLIC COMMENTS
                                   P-POL 141 2m                 USE OF TECHNOLOGY
                                  PP-POL.141 .204               NEGOTIATED RULEMAKING
                                 BPP-POL.141 .300              !HANDGUN POLICY
                                IBPP-POL.143.200              IICLEMENCY
                                 BPP-POL. 145.200               EXTRAORDINARY VOTE (SB 45)
                                 BPP-POL 1'1'- ?n1              ACTION UPON REVIEW-RELEASE DEN IED
                                BPP-POL.145.202                 nrscR1=TIONARY MANDATORY SUPERVISION
                                                                ELIGIBILITY FOR RELEASE; CONSECUTIVE
                                BPP-POL.145.203
                                                                (CUMULATIVE) FELONY SENTENCES
                                                              \MEDICALLY RECOMMENDED INTENSIVE
                                IBPP-POL.145.204
                                                                SUPERVISION
                                                                DESIGNATION OF STANDARDIZED DISTANCE FOR
                                BPP-POL.145205
                                                                CHILD SAFETY ZONES
                                BPP-POL.145.206                 SPECIAL REVIEW-RELEASE DENIED
                                BPP-POL.145.207                 EXTRAORDINARY VOTE (HB 1914)
                                                                SPECIAL CONDITION "C" (PROHIBITED FINANCIAL
                                 BPP-POL.145.250
                                                                ACTIVITIES)
                                 BPP-POL.145.251                SPECIAL CONDITION "D" (DETAINER)



http://www. tdcj .state.tx.us/bpp/policies_directives/policies_directives .html                              11 /1 5/2016
Texas Board of Pardons and Paroles Policies and Directives Page                             Page 2 of 3



                             IBPP-POL.145.252           I.LEVE
                                                          SPECIAL CONDITION "E" (EDUCATIONAL S-KILL
                                                               L)
                             BPP-POL.145.254             SPECIAL CONDITION "I" EMPLOYER NOTIFICATIOI\
                                                         SPECIAL CONDITION "L" (MAXIMUM LEVEL OF
                             BPP-POL.145.255
                                                         SUPERVISION)
                                                         SPECIAL CONDITION "M" (SEX OFFENDER
                             BPP-POL.145.256
                                                         REGISTRATION CONDITION AND DNA SUBMISSIQr
                                                         SPECIAL CONDITION "P" (SPECIAL NEEDS
                             BPP-POL.145.257
                                                         OFFENDER PROGRAM CASELOAD)
                                                        !SPECIAL CONDITION "R'' (RESTITUTION)
                                                        !SPECIAL CONDITION "S" (SUBSTANCE ABUSE)
                                                          PECIAL CONDITION SISP (SUPER INTENSIVE
                                                          UPERVISION PROGRAM)
                                                                    NDlTION ''T'' ELECTRONIC MONITORlf
                                                                     DITION "V" (VICTIM)
                                                          PECIAL CONDITION "X" (SEX OFFENDER
                                                         CONDITION)
                                                         SPECIAL CONDITION "Z'' (NOT TO ENTER A
                             BPP-POL. 145.264
                                                         SPECIFIED COUNTY)
                             I? = = = = = = = = = = :
                             BPP-POL. 145 _265           SPECIAL CONDITION "N" (PROHIBITION ON
                                                         INTERNET ACCESS FOR CERTAIN SEX OFFENDER
                            11-----------1
                             BPP-POL.145266              GANG AFFILIATION
                             BPP-POL. 145 _267           SPECIAL CONDITION "ISF" (INTERMEDIATE
                                                         SANCTION FACILITY)
                                                         SPECIAL CONDITION "SAFP" (SUBSTANCE ABUSE
                             BPP-POL 146.251
                                                         FELONY PROGRAM)

                             IBPP-POL 146.252           IPRELIMINARY HEARINGS-PENDING CRIMINAL
                                                        .CHARGES

                             IBPP-POL.148.200           ISEX OFFENDER CONDITIONS - RELEASEE NOT
                                                        .CONVICTED OF A SEX OFFENSE

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                             Directives

                             Directive              Name
                             BPP-DIR. 08-03.06      BOARD DIRECTIVE RESCISSION BPP-DIR. 08-03.06
                                                    BOARD POLICY-MAKING ANO MANAGEMENT
                             BPP-01 R.141 .300
                                                    RESPONSIBILITIES
                             BPP-DIR .141,.301      WORK HOURS FOR BOARD OFFICE STAFF
                                                    WORK HOURS FOR MEMBERS OF THE BOARD OF
                             BPP-DIR .141.302
                                                    PARDONS AND PAROLES
                                    IR.141 .304     PAROLE PAN!=LS
                                    IR.141 .305     TRAVEL
                               PP-DIR.141.306       VIDEOCONFERENCING


                             15:,P-DIR.141.307
                                  !"\ID   ~,11309
                                  -nlR 141 310
                                                    DEPARTURE PROCESSING PROCEDURES
                                                    ETHICS POLICY
                                                    GENERAL COUNSELS OFFICE POLICY
                             BPP-DIR.141 .311       REVIEW AND IMPLEMENTATION OF LEGISLATION
                             BPP-DlR.141.312        ANALYST COVERAGE
                                                    RESCIND BPP-D'IR 141 .31 4 PERFORMANCE
                             BPP-DIR.141 .314
                                                    EVALUATION - PAROLE COMMISSIONER
                              BPP-DIR.141.315       EMPLOYEE IDENTIFICATION CARD



http:/ /www.tdcj .state.tx.us/bpp/policies_directives/policies_directives.html              11 / 1.5/2016
Texas Board of Pardons and Paroles Policies and Directives Paoe
                                                             0                                   Page 3 of3


                             BPP-DIR.141.318         THE BOARD OF PARDONS AND PAROLES VEHICLE
                                                     POLICY
                             BPP-DIR.141.319         RESCIND BPP-DIR 141 .319 CARRYING A HANDGUN
                             BPP-DIR.141.320         BUDGET EXPENDITURE APPROVAL
                             BPP-DIR.141 .330        POLICIES AND PROCEDURES
                            jBPP-DIR.141 .351       !RECORDS OF COMPLAINTS                                 I
                            jBPP-DIR.141.352        !PUBLIC INFORMATION OFFICE POLICY                      I
                            IBPP-DI R.141.353       !VISITORS ON 'BEHALF OF AN OFFENDER                    I
                                                     OFFENDER PAROLE INTERVIEWS IF
                             BPP-DIR.141.355
                                                     INCARCERATED FOR 20 CONSECUTIVE YEARS
                                                     TEXAS BOARD OF PARDONS AND PAROLES
                             BPP-DJR.141.357
                                                     ELECTRONIC MAIL (E-MAIL)
                             BPP-DIR.141.358         VISITORS REGISTRATION
                             BPP-DIR.141.400         EXPUNCTIONS
                             BPP-DIR.143.300         CLEMENCY FOR CAPITAL CASES
                             BPP-DIR.143.330         FULL PARDON - CONVICTION
                             BPP-DIR.143 .340        FULL PARDON - DEFERRED ADJUDICATION
                             BPP-DIR.143.350         REPRIEVES-FAMILY AND EMERGENCY MEDICAL
                             BPP-DIR.145.300         ACTION UPON REVIEW - APPROVAL
                             BPP-DIR.145.301         EXTRAORDINARY VOTE (SB 45)
                             BPP-DIR.145.302         PROPOSING NEW SPECIAL CONDITIONS

                             -·  - , .145,303
                             RPP-nlR 1·ai:; :l.04
                                                     NOTIFICATION OF A PAROLE PANEL DECISION
                                                     CUMULATIVE OR CONSECUTIVE SENTENCES
                              BPP-DIR 145.305        Fl-6 DWI PROGRAM
                             IBPP-DIR.145.307       ISEX OFFENDER TREATMENT VOTING
                             IBPP-DIR.145.308       !PROTEST MAIL FROM TRIAL OFFICIALS
                             IBPP-DIR.145.310       IPERSONAL APPEARANCE ON VICTIM'S BEHALF
                             IBPP-DIR.145.350       ICONDITlONS OF PAROLE
                             IBPP-DIR.145.351       !SPECIAL CONDITION SISP - ANNUAL REVIEW
                             IBPP-DIR.146.300       !MOTION TO REOPEN HEARING
                                                     SEX OFFENDER CONDITIONS - RELEASEES NOT
                             BPP-DI R.148.300
                                                     CONVICTED OF A SEX OFFENSE

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                             Updated 10/13/2016


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http://www.tdcj.state.tx.us/bpp/policies_directives/policies_ directives.html                    11/15/2016
        EXHIBIT C




BRIEF OF APPELLEE CITY OF FORT WORTH   44
Texas Board of Pardons and Paroles What is Parole Page                                     Page 1 of 2




                                       TEXAS BOARD OF
                                        PARDONS AND
                                          PAROLES

            Main

    Parole/Mandatory
                            PAROLE/ MANDATORY SUPERVISION
      Su~ervision           INFORMATION
     • Parole               What is Parole?
     • Parole Eligibility
     • Similarities
       Between Parole       Parole is the discretionary release of an offender, by a Board of
       and Mandatory        Pardons and Paroles decision, to serve the remainder of a
       Supervision
     . Parole Review
                            sentence in the community under supervision .
       Periods
     • Multi-Year Review    Parole is a privilege, not a right.
       Periods
     . Parole Review
       Process
     . Parole Panel         What is Mandatory Supervision?
       Voting Options
     . Full Board Parole
                            Mandatory Supervision is a legislatively mandated release of a
     . Decisions
       Factors              prisoner to parole supervision when the combination of actual
       Considered in        calendar time and good conduct time equal the sentence. Good
       Voting a Case        conduct time is credited to an offender for participating in work and
     • Approval I Denial
       Reasons              self-improvement programs.

                            Not all offenders are eligible. Offenders convicted of offenses listed
    Parole Guidelines
                            under §508 .149(a) Government Code, are not eligible. Also , the
   Parole Revocations       Board may deny mandatory release on a case-by-case basis for
                            offenders whose offense date was on or after September 1, 1996
          Clemency
                            (Discretionary Mandatory Release).
    Frequently Asked
       Questions

         Publications       Updated 01/16/2013
    Public Information/
     Communications

         Ombudsman

            Forms

            Rules

  Policies and Directives

   Contact Information



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