                                      In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                           ____________________
                              NO. 09-18-00255-CV
                           _______________________

                         HERBERT FEIST, Appellant

                                        V.

                           LARRY J. GIST, Appellee



                   On Appeal from the 136th District Court
                         Jefferson County, Texas
                       Trial Cause No. D-201,708-A


                          MEMORANDUM OPINION

      Pro se Appellant Herbert Feist appeals the trial court’s order dismissing with

prejudice his claims against Appellee Jefferson County District Court Judge Larry

Gist. See Tex. R. Civ. P. 91a. Feist enumerates five complaints on appeal:

      [1] [The] Trial Court Wrongfully Dismissed Tort, Civil Rights
          Complaint, Requesting Declaratory and Injunctive Relief, and
          Never entered Default;
      [2] [The] Trial Court Failed To Rule On Instruments In Order They
          Were Filed, Including Default[;]


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      [3] [The] Trial Court Wrongfully Dismissed On Baseless Claim, Void
          Order;
      [4] [The] Trial Court Never Considered Parole Issues, No Deadly
          Weapon Finding, Street Time, or Mandatory Supervision;
      [5] [The] House Arrest Violates the Law[.]

We affirm.

                                    Background

Prior Proceedings

      We begin with some background information to put Feist’s current lawsuit in

context. In 1981, Feist was convicted in the 252nd Criminal District Court of

Jefferson County, Texas, on a charge of aggravated robbery. See Feist v. Tex. Dep’t

of Criminal Justice-Inst. Div., No. 1:93-CV-465, 1996 U.S. Dist. LEXIS 11411, at

*1 (E.D. Tex. July 18, 1996). He pleaded “true” to an enhancement count based on

a 1978 robbery charge, and he received a forty-year sentence as a repeat offender.

Id.; see also Feist v. State, 631 S.W.2d 769 (Tex. App.—Beaumont 1982, no pet.).

The trial judge for the 1978 robbery charge was Judge Larry Gist. See Feist v. Scott,

885 F. Supp. 927, 933-34 (E.D. Tex. 1995). The parties do not dispute that Gist was

also the presiding judge in his 1981 prosecution. Feist appealed his conviction and

sentence on the 1981 charge to this Court, and we affirmed the trial court’s judgment.

See Feist, 631 S.W.2d at 772. Feist then sought review by the Texas Court of



                                          2
Criminal Appeals which was denied without written order. See Feist, 885 F. Supp.

at 929.

      Feist then filed four successive applications for habeas corpus relief with the

Texas Court of Criminal Appeals, resulting in the Court of Criminal Appeals citing

Feist for abuse of the writ and instructing the Clerk of the Court not to accept further

applications “attacking this conviction or the prior conviction used to enhance it.”

See id. at 930. Feist also sought habeas relief in federal court, which was denied. See

generally Feist, 1996 U.S. Dist. LEXIS 11411. Feist then filed a Motion for Leave

to File Amended Writ of Habeas Corpus, which the district court dismissed as

abusive. See Feist v. Tex. Dep’t of Criminal Justice-Inst. Div., No. 1:93-CV-465,

1996 U.S. Dist. LEXIS 19037, at *16 (E.D. Tex. Dec. 19, 1996).

      In his 1993 federal application for writ, he asserted a claim of ineffective

assistance of counsel, and he argued that the attorney failed to challenge his

“backdated” conviction. See Feist, 855 F. Supp. at 931. The record of the 1978

robbery charge reflected that Feist initially negotiated a plea bargain agreement

whereby he would receive an eight-year shock probation sentence. Id. at 934. The

trial court apparently rejected the plea bargain agreement and instead entered a

“backdated” conviction, with Feist being sentenced to five years with “credit” for

time served from May 2, 1974. Id. at 933-34. The United States District Court for

                                           3
the Eastern District of Texas explained that Feist “was still in high school in May[]

1974, and thereafter entered the armed services. Thus, the ‘credit’ for time served

was a fiction.” Id. at 933. According to the federal court, the Texas Court of Criminal

Appeals declared backdating an unconstitutional practice. Id. (citing Ex parte

Hayward, 711 S.W.2d 652 (Tex. Crim. App. 1986)). Nevertheless, the federal court

noted that the conviction for the 1978 robbery charge was true and could be used as

an enhancement in the 1981 conviction. Id. The federal court concluded that when

Feist pleaded “true” to the 1978 conviction in 1981, he forfeited any opportunity to

collaterally attack the 1978 conviction, and the court denied the petition for writ of

habeas corpus. Id. at 934.

      Feist challenged his conviction and sentencing again in federal court in 2007,

and the court dismissed the petition for writ of habeas corpus. See Feist v. Dir.-

TDCJ-CID, No. 1:07cv594, 2007 U.S. Dist. LEXIS 73558 (E.D. Tex. Oct. 2, 2007).

In 2015, Feist filed two motions for leave to file writs of habeas corpus with the

Texas Court of Criminal Appeals, which were remanded to the trial court with

instructions to make findings of fact and conclusions of law and then subsequently

denied without written order. See generally Ex parte Feist, Nos. WR-12,375-22 &

WR-12,375-23, 2015 Tex. App. Unpub. LEXIS 794 (Tex. Crim. App. Nov. 4, 2015)

(per curiam).

                                          4
The Current Lawsuit

       In May 2018, Feist filed a pro se civil suit styled as “Civil Rights and Personal

Injury Complaint”1 against “Larry J. Gist, Judge.”2 In his Complaint, Feist alleged

that he filed his lawsuit against “defendant(s), in their, Individual and Official

Capacity, for their Illegal, Intentional, Discriminatory, and Malicious Acts, that

exceeded Judicial Authority.” Feist further alleged that he was entitled to “[d]amages

of Monetary and Non Monetary Relief [] within the jurisdictional limits, of

$100[,]000 and release from custody.”

       Feist sought a “Declaratory Judgment” alleging that the “defendants []

admitted that the Constitution has been violated [] by the use before a jury of

backdated, enhancements.” Feist alleged that “[t]he trial court in (2015) notified

Plaintiff in a habeas corpus that no hearing would be had because they had

‘Destroyed’ the records.” According to Feist, the trial court should grant him a “writ

of prohibit” because his underlying conviction was void and not available for

enhancement. Feist also sought a “Temporary Restraining Order and Preliminary


       1
          “A civil suit in the district or county court shall be commenced by a petition
filed in the office of the clerk.” Tex. R. Civ. P. 22. For the sake of clarity, we continue
to refer to Feist’s civil suit as a “Complaint” in this memorandum opinion.
       2
        Feist also named the Jefferson County District Attorney as a defendant in his
Complaint. On remand from this Court, the trial court severed Feist’s claims against
Gist from the claims against the Jefferson County District Attorney.
                                          5
Injunction” requiring the Texas Department of Corrections Records Clerk to

“provide priors for enhancements to any and all counts[]” because he was “doing a

40 year sentence on a Void Conviction.”

      In a section of his Complaint titled “Settlement[,]” Feist alleged he has

completed more than thirty years of a forty-year conviction, and he requested a “time

cut of 30 years or revers[al] [of] the conviction.” He alleged unspecified violations

of the constitution and stated:

             This complaint wouldn’t be filed if the State would have heard
      the writ[] and reversed the case. Since Backdating is Illegal and
      Unconstitutional and was used as enhancement before the jury.
             Parole Board refuse to give Street time, when no Notice of
      Deadly Weapon was filed, nor no separate Special Issue submitted to
      the jury on deadly weapon finding.
             Guilty as charged by indictment is insufficient. []
             They are letting procedure error of writ abuse outweigh[]
      constitutional error. When writ abuse don’t apply to parole.
             Judge Gist Admitted to Backdating for the first time in 1995,
      when writ abuse was entered in 1983, so he couldn’t have filed earlier.
             If, settlement/compromise is rejected strict sanctions and
      punitive damages should issue[.]

      Feist alleged that the trial court has jurisdiction under “42 USC, Sec. 1983 and

[the] Texas Tort Claim[s] Act.” In his “Factual Allegations[,]” Feist alleged that in

1978 he was charged with five aggravated robberies and one car theft, which he

states resulted in a plea bargain for “Oral and Written Shock Probation, on 4

robberies for 5 years each running c/c, stacked on 1 car theft for 8 years, for a total

                                          6
of 13 years.” The Complaint further alleges that when he was charged with

aggravated robbery in 1980, the prior robberies were used as enhancements. Feist

claimed that in 1983 “writ abuse was entered against him[]” and the State court never

held hearings on his habeas petitions. According to Feist’s Complaint, in 1995 “the

federal court held a hearing that the defendant judge admitted for the 1st time

Plaintiff never had Shock Probation, it wasn’t available[,]” and Feist alleged the

Judge admitted that he “Backdated” the shock probation sentence. According to

Feist, the federal court denied him any relief. Feist contends that his forty-year

sentence in criminal Cause 39295, reflected void enhancements. According to Feist,

his sentence is void, and the State has “illegally taken” over “100 years of

good[]time” and “Illegally placed [him] on ‘House Arrest’ by parole[]” in excess of

authority.

      Gist filed an Answer, a Motion to Dismiss Plaintiff’s Baseless Cause of

Action, and a First Amended Motion to Dismiss. The motions to dismiss sought

dismissal with prejudice of all of Feist’s claims pursuant to Rule 91a of the Texas

Rules of Civil Procedure and argued that the lawsuit was baseless; that all the claims

against Gist were barred by judicial immunity, sovereign immunity, and official




                                          7
immunity; and that the constitutional claims were barred by Heck v. Humphrey3 and

by operation of the statute of limitations.

      The trial court held a telephonic hearing on Gist’s First Amended Motion to

Dismiss on June 19, 2018, and Feist and the attorney representing Gist appeared by

telephone. After hearing arguments from both parties, on the record at the hearing

the trial court stated it was “inclined to grant the Motion to Dismiss[.]” The following

day, the trial court entered a written Order dismissing all of Feist’s claims with

prejudice. Feist did not file a motion for new trial or motion to reconsider. Feist filed

a notice of appeal.

                                 Standard of Review

      Rule 91a allows a party to move to dismiss a cause of action that has no basis

in law or fact. See Tex. R. Civ. P. 91a.1. “We review the merits of a Rule 91a motion

de novo because the availability of a remedy under the facts alleged is a question of

law and the rule’s factual-plausibility standard is akin to a legal-sufficiency review.”

City of Dallas v. Sanchez, 494 S.W.3d 722, 724 (Tex. 2016) (citing Wooley v.

Schaffer, 447 S.W.3d 71, 75-76 (Tex. App.—Houston [14th Dist.] 2014, pet.


      3
        512 U.S. 477, 486-87 (1994) (holding that to recover money damages for
“harm caused by actions whose unlawfulness would render a conviction or sentence
invalid,” an inmate must prove that her conviction or sentence has been reversed on
direct appeal, expunged, declared invalid by an authorized state tribunal, or called
into question by a writ of habeas corpus).
                                          8
denied)); GoDaddy.com, LLC v. Toups, 429 S.W.3d 752, 754 (Tex. App.—

Beaumont 2014, pet. denied). We have previously explained that “dismissal is

appropriate if the court determines beyond doubt that the plaintiff can prove no set

of facts to support a claim that would entitle him to relief.” Toups, 429 S.W.3d at

754 (citing Scanlan v. Tex. A&M Univ., 343 F.3d 533, 536 (5th Cir. 2003)).

                                 Judicial Immunity

      A judge has immunity when acting in the course of a judicial proceeding over

which he has jurisdiction. Turner v. Pruitt, 342 S.W.2d 422, 423 (Tex. 1961). The

doctrine of absolute judicial immunity encompasses all judicial acts unless the

judge’s actions clearly fall outside the judge’s subject-matter jurisdiction. Walker v.

Hartman, 516 S.W.3d 71, 82 (Tex. App.—Beaumont 2017, pet. denied) (citing

Mireles v. Waco, 502 U.S. 9, 11 (1991); Stump v. Sparkman, 435 U.S. 349, 356-57

(1978); Dallas Cty. v. Halsey, 87 S.W.3d 552, 554 (Tex. 2002); Spencer v. City of

Seagoville, 700 S.W.2d 953, 957-58 (Tex. App.—Dallas 1985, no writ)). “A judge

will not be deprived of immunity because he was in error, took action maliciously[,]

or was in excess of his authority; rather he will be subject to liability only when he

has acted in the clear absence of all jurisdiction.” Brandley v. Keeshan, 64 F.3d 196,

200 (5th Cir. 1995) (abrogated on other grounds by Mapes v. Bishop, 541 F.3d 582,

584 (5th Cir. 2008)) (citing Stump, 435 U.S. at 359). “Judicial acts include those

                                          9
performed by judges in adjudicating, or otherwise exercising their judicial authority

over, proceedings pending in their courts.” Twilligear v. Carrell, 148 S.W.3d 502,

505 (Tex. App.—Houston [14th Dist.] 2004, pet. denied). Whether an act is judicial

or nonjudicial is determined by the nature of the act, that is, whether it is a function

normally performed by a judge, as opposed to other acts that simply happen to have

been performed by a judge. Id. at 504-05 (citing Forrester v. White, 484 U.S. 219,

227 (1988)).

      In his motion to dismiss, Gist argued that he is entitled to “absolute judicial

immunity” because “[t]he very acts Feist complains of are the judicial acts

performed by Gist in exercising his judicial authority over Feist.” At the hearing on

the motion, the trial court remarked as follows:

              So, the -- a judicial act, essentially, for a judge presiding over a
      case that’s located within his court is the entry of judgment, the signing
      of the pleadings, and the disposition of the case that comes thereafter.
      Essentially the crux of the arguments that you’ve contained in here is
      you stated that there were aspects of how the case was handled that was
      improper. And while you had a right to appeal those issues to the Court
      of Appeals and the Texas Court of Criminal Appeals, as far as civil
      liability goes for how a judge entered judgment or signed a
      documentation of your case, that is -- that is within the purview of
      judicial acts. I mean, it’s textbook judicial acts.

We agree. Feist does not allege that Judge Gist’s actions were non-judicial in nature.

See West v. Robinson, 486 S.W.3d 669, 674 (Tex. App.—Amarillo 2016, pet.

denied) (citing Malina v. Gonzales, 994 F.2d 1121, 1123-24 (5th Cir. 1993)).
                                     10
Although Feist argues that “[i]mmunity does not protect violation of the law[,]” he

has not pleaded facts nor presented evidence sufficient to overcome judicial

immunity—that the complained-of actions were non-judicial, or that the

complained-of actions, although judicial in nature, were taken in the complete

absence of all jurisdiction. See Twilligear, 148 S.W.3d at 504-05.

      Because the record establishes that all of Feist’s claims against Gist are barred

by judicial immunity, the trial court did not err in dismissing all claims with

prejudice pursuant to Rule 91a of the Texas Rules of Civil Procedure. We need not

reach any additional issues Feist raises on appeal, nor do we examine the other

grounds for dismissal that were presented to the trial court in the motion to dismiss.

See Tex. R. App. P. 47.1. We affirm the order of the trial court.

      AFFIRMED.



                                                     _________________________
                                                        LEANNE JOHNSON
                                                              Justice


Submitted on June 24, 2019
Opinion Delivered October 24, 2019

Before McKeithen, C.J., Kreger and Johnson, JJ.



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