                                 NO. 12-08-00060-CV

                        IN THE COURT OF APPEALS

           TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS


MANDELL RHODES, JR.,                              §            APPEAL FROM THE 349TH
APPELLANT

V.

JAMES POLAND, CHARLES SHIPMAN, §                               JUDICIAL DISTRICT COURT OF
PAMELA FREEMAN, LYNN RUZICKA,
ELVIS HIGHTOWER, GERALD GARRETT,
THOMAS FORDYCE, PAUL KIEL,
R. GARCIA, CHARLES SPEIR, AND
HOWARD THRASHER,
APPELLEES                        §                             ANDERSON COUNTY, TEXAS


                                   MEMORANDUM OPINION
       Mandell Rhodes, Jr., an inmate in the Texas Department of Criminal Justice-Institutional
Division (“TDCJ”), proceeding pro se, filed an in forma pauperis suit against Parole Commissioners
James Poland, Charles Shipman, Pamela Freeman, Lynn Ruzicka, Elvis Hightower, Gerald Garrett,
Thomas Fordyce, Paul Kiel, R. Garcia, Charles Speir, and Howard Thrasher (collectively
“Appellees”). In two issues, Rhodes argues that the trial court abused its discretion by dismissing
his suit. We affirm.


                                           BACKGROUND
       Rhodes is an inmate. While incarcerated, Rhodes filed an in forma pauperis civil suit against
Appellees seeking a declaratory judgment that Texas Government Code, section 508.0441 is
unconstitutional and that Appellees are, therefore, divested of their authority to determine his parole
eligibility or revoke his parole.             In his petition, Rhodes alleged that section 508.0441 is
unconstitutional because it conflicts with the 1983 amendment1 to article IV, section 11 of the Texas
Constitution, which, according to Rhodes, “[vests] the power to determine paroles ‘exclusively’ to
‘Board members[.]’”2 Thus, Rhodes contends that section 508.0441 conflicts with article IV, section
11 because section 508.0441 vests “parole commissioners” with “the clemency power to determine
paroles[.]” In conjunction with his original petition, Rhodes filed a declaration of previous lawsuits,
in which he designated three previously filed actions.
         On January 25, 2008, without conducting a hearing, the trial court found that Rhodes’s suit
was frivolous or malicious and dismissed it. In its order, the trial court found that from Rhodes’s
affidavit of previous filings, “the claim is substantially similar to previous claims” brought by
Rhodes and that the “realistic chance of ultimate success is slight.” This appeal followed.


               CONSTITUTIONALITY OF TEXAS GOVERNMENT CODE, SECTION 508.0441
         In his first and second issues, Rhodes argues that the trial court erred in dismissing his
lawsuit pursuant to Texas Civil Practice and Remedies Code, section 14.003. We review the trial
court’s dismissal of an in forma pauperis suit under an abuse of discretion standard. Hickson v.
Moya, 926 S.W.2d 397, 398 (Tex. App.–Waco 1996, no writ). A trial court abuses its discretion if
it acts arbitrarily, capriciously, and without reference to any guiding rules or principles. Lentworth
v. Trahan, 981 S.W.2d 720, 722 (Tex. App.–Houston [1st Dist.] 1998, no pet.). The trial courts are
given broad discretion to determine whether a case should be dismissed because (1) prisoners have
a strong incentive to litigate; (2) the government bears the cost of an in forma pauperis suit; (3)
sanctions are not effective; and (4) the dismissal of unmeritorious claims accrues to the benefit of
state officials, courts, and meritorious claimants. See Montana v. Patterson, 894 S.W.2d 812,
814–15 (Tex. App.–Tyler 1994, no writ).
         In the instant case, the trial court made a finding in its order of dismissal that “the claim is


         1
             See Acts 1983, 68th Leg., p. 6681, S.J.R. No. 13.

         2
          In his petition for declaratory judgment, Rhodes states that he has standing to bring this suit because his
parole was revoked on July 21, 2006 by certain parole commissioners. Rhodes further alleges that he was
subsequently denied a “new parole” by other parole commissioners.

                                                           2
substantially similar to previous claims” brought by Rhodes and that the “realistic chance of ultimate
success is slight.” However, we will affirm a dismissal if it was proper under any legal theory. See
Johnson v. Lynaugh, 796 S.W.2d 705, 706–07 (Tex. 1990); Birdo v. Ament, 814 S.W.2d 808, 810
(Tex. App.–Waco 1991, writ denied).
          Rhodes sought a declaratory judgment that Texas Government Code, section 508.0441 is
unconstitutional in light of the 1983 amendment to article IV, section 11 of the Texas Constitution.
Compare TEX . CONST . art. IV, § 11 with TEX . GOVT . CODE ANN . § 508.0441 (Vernon 2004). Article
IV, section 11 states, in pertinent part, as follows:

                    (b) In all criminal cases, except treason and impeachment, the Governor shall have power,
          after conviction, on the written signed recommendation and advice of the B oard of Pardons and
          Paroles, or a majority thereof, to grant reprieves and commutations of punishment and pardons; and
          under such rules as the Legislature may prescribe, and upon the written recommendation and advice
          of a majority of the Board of Pardons and Paroles, he shall have the power to remit fines and
          forfeitures. The Governor shall have the power to grant one reprieve in any capital case for a period
          not to exceed thirty (30) days; and he shall have power to revoke conditional pardons. W ith the advice
          and consent of the Legislature, he may grant reprieves, commutations of punishment and pardons in
          cases of treason.


TEX . CONST . art IV, § 11. Section 508.0441 provides, in pertinent part, that “[b]oard members and
parole commissioners” shall determine which inmates are to be released on parole or mandatory
supervision as well as determinations regarding the continuation, modification, and revocation of
parole or mandatory supervision. See TEX . GOVT . CODE ANN . § 508.0041(a)(1), (4) (Vernon 2004).
          In his petition for declaratory judgment, Rhodes argues that since section 508.0041 grants
certain authority to “parole commissioners,” it conflicts with article IV, section 11, which provides
that the governor acts upon the advice of the “Board of Pardons and Paroles, or a majority thereof,”
to grant reprieves and commutations of punishment and pardons.3 However, “parole” means “the
discretionary and conditional release of an eligible inmate sentenced to the institutional division so
that the inmate may serve the remainder of the inmate’s sentence under the supervision of the
pardons and paroles division.” TEX . GOVT . CODE ANN . § 508.001(6) (Vernon 2004). A “reprieve”
is a “[t]emporary relief from or postponement of execution of criminal punishment or sentence.”


          3
              W e have interpreted the allegations in Rhodes’s petition for declaratory judgment liberally in the interest
of justice.

                                                              3
BLACK’S LAW DICTIONARY 1302 (6th ed. 1990). It does no more than stay the execution of a
sentence for a time, and it is ordinarily an act of clemency extended to a prisoner to afford him an
opportunity to procure some amelioration of the sentence imposed.            Id.   It differs from a
commutation, which is a reduction of a sentence, and from a pardon, which is a permanent
cancellation of a sentence. Id.; see also BLACK’S LAW DICTIONARY 280 (6th ed. 1990) (defining
“commutation”). Neither parole nor mandatory supervision is a commutation of sentence or any
other form of clemency. TEX . GOVT . CODE ANN . § 508.002 (Vernon 2004). As such, Rhodes’s
argument is without merit because article IV, section 11 makes no provision pertaining to the grant
or revocation of parole. Consequently, section 508.0441 is not in conflict with article IV, section
11. Therefore, we hold that the trial court did not abuse its discretion in dismissing Rhodes’s suit.
See TEX . CIV . PRAC. & REM . CODE ANN . § 14.003(a)(2), (b) (Vernon 2002); Johnson, 796 S.W.2d
at 706–07. Rhodes’s first and second issues are overruled.


                                                      DISPOSITION
         Having overruled Rhodes’s first and second issues, we affirm the trial court’s order of
dismissal.




                                                                    SAM GRIFFITH
                                                                       Justice



Opinion delivered October 8, 2008.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                       (PUBLISH)




                                                                4
