





NUMBER 13-08-00417-CV


COURT OF APPEALS


THIRTEENTH DISTRICT OF TEXAS


CORPUS CHRISTI - EDINBURG 

 

LAWRENCE EDWARD THOMPSON,			                  Appellant,

v.


JOSE ALISEDA AND RISSIE OWENS,			       		Appellees.

 
 
On appeal from the 156th District Court of Bee County, Texas.

 

MEMORANDUM OPINION

Before Justices Rodriguez, Garza, and Vela
Memorandum Opinion by Justice Garza

 
	Appellant, Lawrence Edward Thompson, is currently incarcerated at the Darrington
Unit of the Texas Department of Criminal Justice ("TDCJ").  Acting pro se, he appeals from
the trial court's May 19, 2008 dismissal order in favor of appellees, Jose Aliseda and Rissie
Owens. (1)  By three issues, Thompson contends that the trial court abused its discretion in
dismissing his claims for:  (1) failing to file an affidavit describing previous lawsuits he had
filed; (2) failing to provide any grievance records from the Board of Pardons and Paroles;
and (3) lack of subject matter jurisdiction.  We affirm.
I. Factual and Procedural Background

	Thompson filed his pro se original petition on October 26, 2007, asserting claims
under sections 1981, 1983, 1985, and 1986 of title 42 of the United States Code.
Specifically, Thompson alleged the following:

	Plaintiff asserts claims pursuant to 42 U.S.C. §§ 1981, 1983, 1985, and 1986
for violation of Plaintiff's rights by conspiring to, and arbitrarily and
capriciously denying Plaintiff parole through the retroactive use of law,
policies, guidelines, and procedures that were not in effect when Plaintiff's
commitment offense was committed that makes it harder for Plaintiff to make
parole; use of racial and religious discrimination to deny Plaintiff parole;
retaliation for Plaintiff's legal and religious activities; requiring Plaintiff to
participate in TDCJ-sponsored programs that violate Plaintiff's chosen
religious beliefs; a failure to supervise and train; and a violation of Texas law
in reviewing Plaintiff for parole.

Among other things, Thompson did not file:  (1) an affidavit of inability to pay; (2) a printout
of the last three months of his TDCJ trust account; (3) an affidavit documenting the
previous lawsuits he had filed; or (4) a written decision from a grievance system. (2) See Tex.
Civ. Prac. & Rem. Code Ann. §§ 14.004-.005 (Vernon 2002).  Accordingly, the trial court
assessed filing fees against Thompson and ordered a copy of Thompson's inmate trust
account. (3)  Thompson's inmate trust account indicated that as of November 9, 2007, he had
a balance of $.01 and that he was declared indigent on October 30, 2007.  
	On February 15, 2008, the Attorney General's Office filed an "Amicus Curiae
Advisory" on behalf of appellees, contending that Thompson's claims should be dismissed
because:  (1) he had failed to file an affidavit of previous filings; (2) he did not exhaust all
of his administrative remedies; and (3) his claims should have been brought pursuant to
a writ of habeas corpus, and, therefore, the trial court lacked subject matter jurisdiction. 
	On May 19, 2008, the trial court dismissed Thompson's claims.  In particular, the
trial court noted the following in its order:

		Plaintiff complains of the action of the Texas Board of Pardon[s] and
Parole[s] in establishing his release date from prison.
 
		Plaintiff has not filed a separate affidavit or unsworn declaration
identifying each pro se lawsuit, by listing the operation [sic] facts, the case
name, cause number, and court filed, parties and results of the suit, including
whether the suit was dismissed pursuant to Chapter 14 of the Texas Practice
and Remedies Code.
 
		Plaintiff has not complied with the requirements of Texas Government
Code Annotated Section 501.008 by failing to provide any grievance records
from the Board of Pardons and Parole[s].  
 
		The Plaintiff is requesting his parole revocation in 2005 be
reconsidered by the Court.  This court has no subject matter jurisdiction over
such issues.
 
		Plaintiff may in fact be attempting to invoke Habeas Corpus relief in
his petition.  Article 11.07 Code of Criminal Procedure controls habeas
corpus relief in Texas [c]riminal [c]ases. . . .  This court lacks jurisdiction of
his habeas request.

	This appeal ensued.

II. Analysis

	In his third issue, Thompson alleges that the trial court abused its discretion in
dismissing his claims for lack of subject matter jurisdiction.  Specifically, Thompson argues
that the trial court was incorrect in concluding that the substance of his petition pertained
only to his 2005 parole revocation.  Instead, Thompson appears to assert that the TDCJ
continuously discriminated against him at various parole hearings. (4)
1. Standard of Review

	Subject matter jurisdiction is an essential part of the authority of a court to decide
a case, and it is never to be presumed and cannot be waived.  Tex. Ass'n of Bus. v. Tex.
Air Control Bd., 852 S.W.2d 440, 443-44 (Tex. 1993).  The reviewing court determines
whether subject matter jurisdiction exists as a question of law, subject to de novo review. 
Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998).
	"Because we evaluate pro se pleadings liberally in order to determine the merits of
the complaint, we review the same claims and grounds for jurisdiction as below."  Martin
v. State Bd. of Criminal Justice, 60 S.W.3d 226, 228 (Tex. App.-Corpus Christi 2006, no
pet.) (citing Haines v. Kerner, 404 U.S. 519, 520 (1972); Johnson v. McAdams, 781
S.W.2d 451, 452 (Tex. App.-Houston [1st Dist.] 1990, no writ)).
2. Discussion

	In his original petition, Thompson takes issue with the manner in which numerous
parole hearings were conducted.  Thompson alleges, without providing sufficient evidence,
that the TDCJ continuously discriminated against him in parole hearings conducted on
January 1, 1991, May 13, 1993, June 6, 1994, May 25, 1998, August 2000, August 2,
2006, and August 2, 2007, because he is a Muslim African-American. (5) 
	The United States Supreme Court has held that an inmate in state custody cannot
use a section 1983 action to challenge "the fact or duration of his confinement."  Wilkinson
v. Dotson, 544 U.S. 74, 78 (2005).  Instead, the inmate should file a petition for writ of
habeas corpus.  Id.  In the present case, Thompson essentially argues that he was denied
parole and his confinement was extended because the Board of Pardons and Paroles
engaged in various forms of discrimination.  As such, Thompson should have asserted his
claims in a petition for writ of habeas corpus.  See id.  
	In addition, 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 (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.  Therefore, the trial court did not
abuse its discretion in dismissing Thompson's claims for lack of subject matter jurisdiction. 
Accordingly, we overrule Thompson's third issue.  
	Because we have concluded that the trial court lacked subject matter jurisdiction
over Thompson's claims, we need not address Thompson's two remaining issues on
appeal.  See Tex. R. App. P. 47.1; see also Williams, 2007 Tex. App. LEXIS 6344, at **5-6
(concluding that the trial court lacked subject matter jurisdiction over an inmate's claims
against the Texas Board of Pardons and Paroles and, therefore, affirming the trial court's
dismissal of the inmate's claims without addressing the inmate's other issues).  
IV. Conclusion

	We affirm the trial court's order of dismissal.



   DORI CONTRERAS GARZA,
							Justice

Memorandum Opinion delivered and 
filed this the 29th day of January, 2009.

1.  Aliseda is a Member, and Rissie Owens is the Chair, of the Texas Board of Pardons and Paroles. 
2.  On June 30, 2008, Thompson filed an affidavit of inability to pay costs, thereby triggering the
provisions of chapter 14 of the civil practice and remedies code.  See Tex. Civ. Prac. & Rem. Code Ann. §§
14.001-.014 (Vernon 2002).  The record, however, does not indicate that Thompson filed an affidavit
chronicling previous lawsuits he has filed in accordance with section 14.004 of the civil practice and remedies
code.  See id. § 14.004.  Thompson's failure to file such an affidavit would, in and of itself, be sufficient to
warrant a dismissal of his claims without prejudice.  See Bell v. Tex. Dep't. of Criminal Justice-Inst. Div., 962
S.W.2d 156, 158 (Tex. App.-Houston [14th Dist.] 1998, pet. denied) (holding that "when an inmate does not
comply with the affidavit requirements of section 14.004, the trial court is entitled to assume the suit is
substantially similar to one previously filed by the inmate, and therefore, frivolous").   
3.  The trial court also ordered the Attorney General to file an answer on behalf of appellees within 120
days of its order and to advise the trial court as to whether Thompson had complied with all the statutory
requirements of chapter 14 of the civil practice and remedies code.  See generally Tex. Civ. Prac. & Rem.
Code Ann. §§ 14.001-.014. 
4.  To the extent that Thompson challenges the constitutionality of the Board of Pardons and Paroles
procedures governing parole, we note that "Texas law does not create a liberty interest in parole that is
protected by due process."  Martin v. State Bd. of Criminal Justice, 60 S.W.3d 226, 230 (Tex. App.-Corpus
Christi 2006, no pet.) (citing Allison v. Kyle, 66 F.3d 71, 74 (5th Cir. 1995)); see Johnson v. Davis, 178 S.W.3d
230, 239 (Tex. App.-Houston [14th Dist.] 2005, pet. denied).  Therefore, because he has no liberty interest
in obtaining parole, an inmate cannot attack the constitutionality of procedural devices attendant to parole
decisions.  See Martin, 60 S.W.3d at 230 (citing Orellana v. Kyle, 65 F.3d 29, 32 (5th Cir. 1995)).  Moreover,
"[a] district court has no constitutional or statutory jurisdiction to exercise supervisory control over prison
officials."  Martin, 60 S.W.3d at 229 (citing Martinez v. Thaler, 931 S.W.2d 45, 46 (Tex. App.-Houston [14th
Dist.] 1993, writ denied)).
5.  Thompson noted in his original petition that he was granted parole on June 12, 2002, but that his
parole was revoked on June 23, 2005.
