                                                                                           ACCEPTED
                                                                                       03-15-00343-CV
                                                                                               6834820
                                                                            THIRD COURT OF APPEALS
                                                                                       AUSTIN, TEXAS
                                                                                   9/8/2015 5:17:16 PM
                                                                                     JEFFREY D. KYLE
                                                                                                CLERK

                            No. 03-1500343-CV
                                                       FILED IN
                    In the Court of Appeals 3rd COURT       OF APPEALS
                                                    AUSTIN, TEXAS
                 For the Third District of Texas9/8/2015 5:17:16 PM
                                                  JEFFREY D. KYLE
                        At Austin, Texas                Clerk
                    ___________________________________

                             EDDIE DON JOHNSON,
                                  Appellant,
                                      v.
                           THE STATE OF TEXAS,
                                Appellee.
                  ____________________________________
               On Direct Appeal from the 200th Judicial District
                       Court of Travis County, Texas
                 Trial Court Cause No. D-1-GN-13-001602
                ____________________________________

                            APPELLEES’ BRIEF
                  ____________________________________

KEN PAXTON                                 *JENNIFER L. DANIEL
Attorney General of Texas                  Assistant Attorney General
                                           State Bar No. 24090063
CHARLES E. ROY
First Assistant Attorney General           Office of the Attorney General
                                           P.O. Box 12548
JAMES E. DAVIS                             Austin, Texas 78711-2548
Deputy Attorney General                    Tel: (512) 463-2080
for Civil Litigation                       Fax: (512) 936-2109
                                           Jennifer.Daniel@texasattorney
KAREN D. MATLOCK                           general.gov
Chief, Law Enforcement
Defense Division                   Counsel for Appellees
                                   *Attorney-In-Charge
                   ORAL ARGUMENT NOT REQUESTED
                          IDENTITY OF PARTIES & COUNSEL

Appellant:

Eddie Don Johnson, No. 00364033
TDCJ – James A. Lynaugh Unit
1098 S. Highway 2037
Fort Stockton, Texas 79735
Plaintiff Pro Se

Appellees:

The State of Texas—Texas Department of Criminal Justice (TDCJ)
TDCJ Board of Pardons and Parole
P. O. Box 13401
Austin, Texas 78711-3401

Attorney for Appellees:

Jennifer L. Daniel
Assistant Attorney General
State Bar No. 24090063
Law Enforcement Defense Division
P. O. Box 12548, Capitol Station
Austin, Texas 78711
(512) 463-2080 / (512) 936-2109 Fax




                                       ii
                            TABLE OF CONTENTS
                                                                         Page

Identity of Parties and Counsel…………………………………………………….ii

Table of Contents ………………………………………………………………....iii

Index of Authorities………………………………………………………………..iv

Statement of the Case………………………………………………………………1

Issues Presented………………………………………………………………….....2

   I.   Whether TDCJ is entitled to sovereign immunity for the claims brought
        against it pursuant to Texas Government Code Section
        2001.038..…………………………………………………………….......2

Statement of Facts………………………………………………………………......2

Summary of the Argument…………………………………………………………2

Standard of Review………………………………………………………………...3

Argument…………………………………………………………………………...3

  1.    Offender Johnson pled facts affirmatively demonstrating that his claim
        falls outside Section 2001.038 of the APA, and his claim is barred by
        sovereign immunity…...…………………………...….………………….3


Conclusion………………………………………………………………………….5

Notice of Electronic Filing…………………………………………………………6

Certificate of Compliance…………………………………………………………..6

Certificate of Service…………………………………………………………….....7




                                     iii
                                   INDEX OF AUTHORITIES

Cases                                                                                                  Page

Tex. Parks & Wildlife Dep’t v. Gallacher,
  2015 WL 1026473 (Tex.App.—Austin Mar. 4, 2015, no pet.) .............................3

Mission Consol. Indep. Sch. Dist. v. Garcia,
 372 S.W.3d 629 (Tex.2012)....................................................................................3

Texas Dep’t of Transp. v. Sefzik,
  355 S.W.3d 618 (Tex. 2011) ..................................................................................3

Hernandez v. Tex. Dep't of Criminal Justice,
 2014 WL 711028 (Tex.App..—Austin Feb. 19, 2014, no pet.) .............................4


Rules, Codes, and Statutes

Tex. Gov’t Code § 2001.226......................................................................................4
Tex. Gov’t Code § 2001.038(a), (c)...........................................................................3
Tex. Gov’t Code § 2001.223(3). ..............................................................................4




                                                       iv
                     ___________ _________________________

                               EDDIE DON JOHNSON,
                                    Appellant,
                                         v.
                             THE STATE OF TEXAS,
                                  Appellee.
                    ___________________________________
                 On Direct Appeal from the 200th Judicial District
                         Court of Travis County, Texas
                   Trial Court Cause No. D-1-GN-13-001602
                  ____________________________________

                             APPELLEE’S BRIEF
                   ____________________________________

TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS,

AUSTIN:

      Appellee Texas Department of Criminal Justice (“TDCJ”), through the Office

of the Attorney General, submits this brief in support of the trial court’s judgment

dismissing this case. Appellee asks this Court to affirm the lower court’s dismissal.

                             STATEMENT OF THE CASE

      Appellant, Eddie Don Johnson, proceeding pro se and in forma pauperis, filed

suit in the 200th Judicial District Court of Travis County, Texas. See Plaintiff’s

Original Petition, C.R. at 5. Offender Johnson brings a suit against TDCJ pursuant

to Texas Government Code Section 2001.038 of the Administrative Procedures Act




                                          1
(APA) seeking a declaration that TDCJ’s application of Special Condition X SISP

to his parole was invalid. Id.

      Appellee answered and filed an Amended Plea to the Jurisdiction. See

Defendants Amended Plea to the Jurisdiction, C.R. at 240. On May 13, 2015, the

Honorable Charles R. Ramsey granted Appellee’s plea to the jurisdiction and issued

a final judgment dismissing the case. C.R. at 249. On June 1, 2015, Appellant filed

his Notice of Appeal. C.R. at 251.

                                  ISSUE PRESENTED

 I.   Whether TDCJ is entitled to sovereign immunity for the claims brought
      against it pursuant to Texas Government Code Section 2001.038.

                                 STATEMENT OF FACTS

      On January 16, 2004, Offender Johnson was released from TDCJ custody to

mandatory supervision. C.R. at 7. The Board of Pardons and Parole issued an order

imposing Special Condition X SISP on his parole on December 11, 2003. Id. On

the day of his release, Offender Johnson was provided with notice of the imposition

of special condition X SISP being applied to him. Id. Offender Johnson was arrested

on August 4, 2004. Id. On March 25, 2005, his discretionary mandatory supervision

was revoked. C.R. at 8. He was returned to TDCJ custody on April 8, 2005. Id.

                           SUMMARY OF THE ARGUMENT

      The record supports the trial court’s judgment in dismissing Appellant’s suit

for lack of subject matter jurisdiction. Appellant failed to overcome TDCJ’s
                                         2
entitlement to sovereign immunity. The court below appropriately applied the law,

and the judgment should be affirmed.

                               STANDARD OF REVIEW

      Whether a trial court has subject-matter jurisdiction is a question of law

reviewed de novo. Tex. Parks & Wildlife Dep’t v. Gallacher, 2015 WL 1026473, at

*3 (Tex.App.—Austin Mar. 4, 2015, no pet.) (citing Mission Consol. Indep. Sch.

Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex.2012).). Accordingly, the grant of the

plea to jurisdiction should be reviewed de novo. Id.



                                      ARGUMENT

    1.    Offender Johnson pled facts affirmatively demonstrating that his
          claim falls outside Section 2001.038 of the APA, and his claim is barred
          by sovereign immunity.

      Sovereign immunity deprives Texas courts of subject-matter jurisdiction to

adjudicate any suit against the State or its agencies or subdivisions, absent legislative

waiver. Texas Dep’t of Transp. v. Sefzik, 355 S.W.3d 618, 620 (Tex. 2011).


      Offender Johnson attempts to rely on APA section 2001.038 to bring his

challenge to Condition X SISP being applied to his parole. C.R. at 5. Texas

Government Code Section 2001.038 waives sovereign immunity to the extent it

authorizes “an action for declaratory judgment against a state agency to determine

the validity or applicability of a rule if it is alleged that the rule or its threatened

                                           3
application interferes with or impairs, or threatens to interfere with or impair, a legal

right or privilege of the plaintiff.” Hernandez v. Tex. Dep't of Criminal Justice, 2014

WL 711028 at *2 (Tex.App.— Austin Feb. 19, 2014, no pet.) (internal quotations

omitted) (citing Tex. Gov’t Code § 2001.038(a), (c)). It is unnecessary, however, to

analyze whether the imposition of Special Condition X SISP constitutes a “rule”

under the statute because the Legislature explicitly exempted this type of case from

the APA. In § 2001.226, the Legislature specifically stated, “This chapter does not

apply to a rule or internal procedure of [TDCJ] or Texas Board of Criminal Justice

that applies to an inmate or any other person under the custody or control of the

department or to an action taken under that rule or procedure.” Tex. Gov’t Code §

2001.226. Additionally, the APA states that Section 2001.038 is inapplicable to “a

hearing or interview conducted by the Board of Pardons and Paroles or [TDCJ]

relating to the grant, rescission, or revocation of parole or other form of

administrative release.” Tex. Gov’t Code § 2001.223(3).


      Offender Johnson’s sole allegation of interference with or impairment of a

legal right or privilege is based on the revocation of his parole as a result of violations

of Special Condition X SISP. As a matter of law, no action can lie under Section

2001.038 based on this alleged rule violation. Offender Johnson has pled facts

affirmatively demonstrating that his claim falls outside Section 2001.038, and his

claim is barred by sovereign immunity.

                                            4
                                 CONCLUSION

      The Texas Department of Criminal Justice is entitled to sovereign immunity.

Therefore, the trial court jurisdiction over them, and they appropriately dismissed

Offender Johnson’s petition. The judgment should be affirmed.




                                      Respectfully submitted,

                                      KEN PAXTON
                                      Attorney General of Texas

                                      CHARLES E. ROY
                                      First Assistant Attorney General

                                      JAMES E. DAVIS
                                      Deputy Attorney General for Civil Litigation

                                      KAREN D. MATLOCK
                                      Assistant Attorney General
                                      Chief, Law Enforcement Defense Division

                                      /s/ JENNIFER L. DANIEL
                                      JENNIFER L. DANIEL
                                      Assistant Attorney General
                                      Attorney-in-Charge
                                      State Bar No.24090063
                                      Jennifer.Daniel@texasattorneygeneral.gov

                                       P. O. Box 12548, Capitol Station
                                      Austin, Texas 78711
                                      (512) 463-2080 / (512) 936-2109 Fax

                                      ATTORNEYS FOR APPELLEE



                                        5
                      NOTICE OF ELECTRONIC FILING

      I, JENNIFER L. DANIEL, Assistant Attorney General of Texas, do hereby
certify that I have electronically submitted for filing, a true and correct copy of the
above and foregoing Appellees’ Brief in accordance with the electronic filing
system for the Third Court of Appeals on this the 8th day of September, 2015.


                                        /s/ JENNIFER L. DANIEL
                                        JENNIFER L. DANIEL
                                        Assistant Attorney General


                    RULE 9.4(I) CERTIFICATE OF COMPLIANCE

      I certify that this computer-generated document, accounting for Rule 9(i)(1)’s
inclusions and exclusions, is 1,496 words, as calculated by Microsoft Word 2013,
the computer program used to prepare this document.
                                           /s/ JENNIFER L. DANIEL
                                        JENNIFER L. DANIEL
                                        Assistant Attorney General




                                          6
                            CERTIFICATE OF SERVICE

      I, JENNIFER L. DANIEL, Assistant Attorney General of Texas, certify that
a true and correct copy of the above and foregoing Appellees’ Brief has been served
by placing it in the United States Mail, postage prepaid, on this the 8th day of
September, 2015 , addressed to:
Eddie Don Johnson TDCJ No. 00364033
TDCJ – James A. Lynaugh Unit
1098 S. Highway 2037
Fort Stockton, Texas 79735
Plaintiff Pro Se

                                      /s/ JENNIFER L. DANIEL
                                      JENNIFER L. DANIEL
                                      Assistant Attorney General




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