                                      In The
                                 Court of Appeals
                        Seventh District of Texas at Amarillo
                                  ________________________

                                       No. 07-12-00093-CV
                                  ________________________

                             LAWRENCE HIGGINS, APPELLANT

                                                  V.

                              DAVID BLOUNT, CINDY EVANS,
                             AND DAVID GLEASON, APPELLEES



                              On Appeal from the 47TH District Court
                                      Randall County, Texas
                  Trial Court No. 64,391-A, Honorable Dan L. Schaap, Presiding


                                           May 17, 2013

                                MEMORANDUM OPINION
                      Before CAMPBELL and HANCOCK and PIRTLE, JJ.


       Pursuant to Chapter 14 of the Texas Civil Practice and Remedies Code, 1 the trial

court dismissed the claims being asserted by Appellant, Lawrence Higgins, in the

underlying lawsuit. In that proceeding, Higgins had alleged that, during the course of

1
 See TEX. CIV. PRAC. & REM. CODE ANN. § 14.001-.014 (W EST 2002 & W EST SUPP. 2012). Chapter 14
contains procedures governing inmate litigation and the dismissal of frivolous lawsuits. Subsequent
citations to Chapter 14 throughout the remainder of this opinion will simply be as “section ____” and “§
____.”
his 2001 criminal trial for murder, Appellees, the Honorable David Gleason, and two

assistant district attorneys, David Blount and Cindy Evans, engaged in a conspiracy to

deny him due process under state and federal law. Higgins contends the trial court

erred in dismissing his lawsuit because (1) his factual allegations, when taken as true,

support a valid cause of action and (2) he filed a motion to change venue prior to its

dismissal. We affirm.

                                     BACKGROUND


      Higgins is an inmate of the Texas Department of Criminal Justice, Institutional

Division. In December 2011, he filed a pro se, in forma pauperis lawsuit against Judge

Gleason, Blount and Evans. In his petition, entitled Due Course of Law Complaint,

Higgins contends that during his criminal trial Blount and Evans sought to suppress

admissible evidence and Judge Gleason formed an opinion of guilt prior to hearing the

evidence, denied him compulsory process of witnesses, denied his right to self-

representation, refused to appoint competent counsel and admitted an illegally obtained

confession. His sole allegation regarding the nature of the conspiracy is that “Blount

and Evans filed motions to suppress evidence clearly admissible according to the rules

of evidence and the trial court granted the motion showing a pattern of conspiracy to

convict complainant by any means necessary.” As a result of these allegations, Higgins

seeks (1) a declaration that the defendants violated state and federal law and (2) a

permanent injunction ordering them to comply with the law.


      On January 20, 2012, Judge Gleason filed a motion to dismiss Higgins’s

Complaint. Ten days later, Higgins filed a Motion for Change of Venue. Without ruling

on that motion, on February 14, 2012, the trial court entered an Order of Dismissal,

                                           2
dismissing the lawsuit against Judge Gleason, Blount and Evans. In its order, the trial

court found the lawsuit to be frivolous, for purposes of Chapter 14, because his claims

(1) lacked an arguable basis in law or fact, (2) had no realistic chance of ultimate

success, and (3) were substantially similar to previous claims filed by him on direct

appeal and in prior habeas corpus proceedings.


                                    STANDARD OF REVIEW


         A trial court’s dismissal of an inmate’s in forma pauperis suit pursuant to Chapter

14 is reviewed for abuse of discretion; Retzlaff v. Tex. Dep’t of Crim. Justice, 94 S.W.3d

650, 654 (Tex.App.—Houston [14th Dist.] 2002, pet. denied), and may be reversed if

the trial court acted arbitrarily, capriciously, or without reference to any guiding rules or

principles. See Downer v. Aquamarine Operators, Inc., 70 S.W.2d 238, 241-42 (Tex.

1985).       A trial court has broad discretion to dismiss an inmate’s suit if the claim

asserted is frivolous or malicious; Martinez v. Thaler, 931 S.W.2d 45, 46 (Tex.App.—

Houston [14th Dist.] 1996, writ denied), and a decision to dismiss will be affirmed if it is

proper under any legal theory. Johnson v. Lynaugh, 796 S.W.2d 705, 706-07 (Tex.

1990). Moreover, a trial court may exercise its authority to dismiss a lawsuit under

Chapter 14 without a motion to dismiss. See § 14.003(a); Leachman v. Dretke, 261

S.W.3d 297, 303 (Tex.App.—Fort Worth 2008, no pet.).


         In determining whether a lawsuit is frivolous or malicious, the 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




                                              3
facts in support of the claim; or (4) the claim is substantively similar to a previous claim

filed by the inmate because it arises from the same operative facts. § 14.003(b).


        When, as here, an inmate’s lawsuit has been dismissed as frivolous for having

no basis in law or in fact, but no fact hearing was held, our review focuses on whether

the inmate’s lawsuit had an arguable basis in law. See Hamilton v. Pechacek, 319

S.W.3d 801, 809 (Tex.App.—Fort Worth 2010, no pet.). While a Chapter 14 dismissal

is reviewed under an abuse of discretion standard, the issue whether a claim has no

arguable basis in law is a question of law that we review de novo. Id.


                                                 IMMUNITY


        On behalf of Appellees, the Texas Attorney General’s Office contends that

dismissal was proper because Higgins’s claims have no arguable basis in law or in fact.

The Attorney General’s Office reasons that because Appellees were sued for acts

committed in their respective official capacities, 2 sovereign immunity barred the claims

and Higgins’s realistic chance of ultimate success was, therefore, slight. See City of El

Paso v. Heinrich, 284 S.W.3d 366, 380 (Tex. 2009); Univ. of Tex. Med. Branch v.

Hohman, 6 S.W.3d 767, 776 (Tex.App.—Houston [1st Dist.] 1999, pet. dism’d w.o.j.). In

that regard, we note that all of Higgins’s complaints are based upon acts Appellees

allegedly performed in their official capacities as an integral part of the judicial process

during the course of the criminal prosecution instituted against him by the State of

Texas.     As judicial officers, Appellees are entitled to judicial immunity and derived
2
 A suit against an official in his official capacity “seeks to impose liability against the governmental unit
rather than on the individual specifically named and ‘is, in all respects other than name, . . . a suit against
the entity.’” Tex. A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 844 (Tex. 2007) (quoting Kentucky v.
Graham, 473 U.S. 159, 166, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985)). Higgins has consistently urged that
he is suing the defendants in their official capacity only.

                                                      4
judicial immunity—forms of absolute immunity. See Imbler v. Pachtman, 424 U.S. 409,

430, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976) (recognizing absolute immunity to suits under

42 U.S.C. § 1983); Charleston v. Pate, 194 S.W.3d 89, 91 (Tex.App.—Texarkana 2006,

no pet.). See Martinez v. Hardy, 864 S.W.2d 767, 772-73 (Tex.App.—Houston [14th

Dist.] 1993, no writ) (concluding district clerk protected by absolute immunity).

Therefore, unless an exception to these immunity claims were to exist, Higgins’s claim

would have no arguable legal basis and the realistic chance of ultimate success in such

a proceeding would be extremely slight.


                                 ULTRA VIRES EXCEPTION


       Exceptions to such forms of governmental immunity do exist under the ultra vires

exception. Governmental immunity “does not preclude prospective injunctive remedies

in official-capacity suits against government actors who violate statutory or constitutional

provisions.” Heinrich, 284 S.W.3d at 368-69. See Tex. Dep’t of Transp. v. Sefzik, 355

S.W.3d 618, 620, 623 (Tex. 2011) (per curiam). To invoke this ultra vires exception, it

must be shown that the officer acted without legal authority or failed to perform a purely

ministerial act. Heinrich, 284 S.W.3d at 372. Where such facts exist, the doctrines of

absolute immunity and official immunity do not bar an action for prospective declaratory

or injunctive relief against judges or prosecutors. Reyna v. City of Weslaco, 944 S.W.2d

657, 661 (Tex.App.—Corpus Christi 1997, no writ) (citing Holloway v. Walker, 765 F.2d

517, 525 (5th Cir.), cert. denied, 474 U.S. 1037, 106 S.Ct. 605, 88 L.Ed.2d 583 (1985)).

See Supreme Court of Virginia v. Consumers Union of United States, Inc., 446 U.S.

719, 736-37, 100 S.Ct. 1967, 64 L.Ed.2d 641 (1980).



                                             5
       Although Higgins contends that his claims fall within this ultra vires exception,

that exception only applies to claims seeking prospective injunctive relief. The Texas

Declaratory Judgment Act is not intended as a vehicle to avoid sovereign immunity.

Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002)

(citing W.D. Haden Co. v. Dodgen, 308 S.w.2d 838, 842 (Tex. 1958)). Rather, the

Texas Declaratory Judgment Act is “intended as a means of determining the parties’

rights when a controversy has arisen but before a wrong has been committed, ‘and is

preventative in nature.’” Etan Indus., Inc. v. Lehmann, 359 S.W.3d 620, 624 (Tex.

2011) (per curiam) (quoting Cobb v. Harrington, 144 Tex. 360, 190 S.W.2d 709, 713

(Tex. 1945)). See Stephens v. City of Houston, 260 S.W.3d 163, 167-68 (Tex.App.—

Houston [1st Dist.] 2008, no pet.). Therefore, to invoke the ultra vires exception, any

injunctive relief that could be granted would have to be prospective relief.


       In this proceeding, Higgins requests a declaration that the defendants’ acts and

omissions violated state and federal law and a “permanent injunction ordering the

defendants to comply with the due course of law by admitting the acts [alleged in the

complaint] were committed.” To the extent he seeks to avoid governmental immunity by

invoking the ultra vires exception, we note that Higgins is seeking retrospective

declaratory relief that certain past acts violated his state and federal rights.

Furthermore, to the extent that his prayer for relief appears to request prospective

injunctive relief, we note that he seeks a future admission that past acts were

committed.


       Although the ultra vires exception to governmental immunity permits prospective

declaratory and injunctive relief, we conclude that because Higgins ultimately seeks

                                             6
relief for acts he believes were already committed, the ultra vires exception does not

apply to the facts of this case. Heinrich, 284 S.W.3d at 374-77.


       Furthermore, to the extent Higgins’s pleadings can be construed as requesting

prospective declaratory and injunctive relief as a “post-conviction remedy,” such relief is

unavailable. The procedure established in article 11.07 of the Texas Code of Criminal

Procedure is the exclusive post-conviction judicial remedy available when a conviction

is final and the applicant is confined by virtue of his felony conviction. See Ex parte

Adams, 768 S.W.2d 281, 287 (Tex.Crim.App. 1989) (orig. proceeding); McBride v.

State, 114 S.W.3d 556, 557 (Tex.App.—Austin 2002, no pet.). See also TEX. CODE

CRIM. PROC. ANN. art. 11.07 (W EST SUPP. 2012).            Article 11.07 vests complete

jurisdiction over post-conviction relief from final felony convictions in the Texas Court of

Criminal Appeals. Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex. 1991)

(orig. proceeding). See Bd. of Pardons & Paroles ex rel. Keene v. Court of Appeals for

the Eighth Dist., 910 S.W.2d 481, 483 (Tex.Crim.App. 1995) (orig. proceeding) (per

curiam); In re Watson, 253 S.W.3d 319, 320 (Tex.App.—Amarillo 2008, orig.

proceeding).


       Furthermore, to the extent Higgins is requesting a general injunction requiring

prospective compliance with the law, such an injunction cannot be granted.               An

injunction must be definite, clear, and precise; it must inform the defendant of the acts

from which the defendant is restrained without calling on the defendant to make

inferences. TEX. R. CIV. P. 683; Webb v. Glenbrook Owners Ass’n, 298 S.W.3d 374,

384 (Tex.App.—Dallas 2009, no pet.).         An injunction is not available to “prevent



                                             7
commission of wrongs not imminently threatened.” Webb, 298 S.W.3d at 384. Here,

Higgins has failed to specify an imminently threatened wrong.


                                   CHANGE OF VENUE


      Higgins further contends the trial court erred in dismissing his lawsuit because he

filed a motion to change venue prior to its dismissal. He contends that prior to taking

any further action, the trial judge should have either recused himself of referred the

matter to the regional presiding judge pursuant to Rule 18a of the Texas Rule of Civil

Procedure. Rule 18a does not apply to motions to change venue.


      Motions to change venue are governed by Rule 257 which provides that a

change of venue may be granted in a civil proceeding upon the motion of any party,

supported by the movant’s affidavit and the affidavit of at least three credible persons,

who are residents of the county in which the lawsuit is pending. TEX. R. CIV. P. 257. A

motion to transfer venue may be granted if (1) there exists so great a prejudice against

the movant that a fair or impartial trial cannot be had in the county where the lawsuit is

pending, (2) there is a combination against the movant instigated by influential persons,

by reason of which the movant cannot expect a fair and impartial trial, (3) an impartial

trial cannot be had in the county where the action is pending, or (4) for any other

sufficient cause determined by the trial court. Id. Nowhere does the rule require, as

Higgins suggests, that, upon the filing of such a motion, the trial judge must recuse

himself or request the presiding judge of the administrative region to assign a judge to




                                            8
hear the motion. 3 Furthermore, because Higgins’s motion for a change of venue is

unsupported by any affidavits and contains only conclusory assertions without any

factual allegations, it has no arguable basis in law.


                                                CONCLUSION


        Accordingly, we find the trial court did not abuse its discretion in its dismissal of

Higgins’s lawsuit because there is no arguable legal basis for an exception to the

immunity claims of Appellees and thus the realistic chance of ultimate success on the

merits of his claim is not only slight, it is non-existent. Furthermore, the trial court did

not err by failing to rule on the motion to transfer venue prior to dismissing his lawsuit.

Higgins’s issues are overruled.


        The trial court’s judgment is affirmed.


                                                             Patrick A. Pirtle
                                                                 Justice




3
 In re Rio Grande Valley Gas Co., 987 S.W.2d 167 (Tex.App.—Corpus Christi 1999, no pet.) and Carson
v. Gomez, 841 S.W.2d 491 (Tex.App.—Houston [1st Dist.] 1992, no pet.) are of no assistance to Higgins
because the cases address issues related to motions to recuse under Texas Rule of Civil Procedure 18a.
See In re Rio Grande Valley, 987 S.W.2d at 171; Carson, 841 S.W.2d at 492. Texas Rule of Civil
Procedure 257 contains no provision similar to that in Rule 18a(f). Compare TEX. R. CIV. P. 257 with
18a(f) (which requires that, on the filing of a motion for recusal, the trial court either sign and file a recusal
order or disqualification, or sign and file an order referring the motion to the regional presiding judge).


                                                        9
