                               COURT OF APPEALS
                               SECOND DISTRICT OF TEXAS
                                    FORT WORTH

                                  NO. 02-11-00336-CV


Theodis Dodson                            §   From the 236th District Court

                                          §   of Tarrant County (236-252438-11)
v.
                                          §   March 7, 2013
Sean Colston, Tarrant County Dist.
Atty, and The State of Texas              §   Opinion by Justice Meier

                                     JUDGMENT

       This court has considered the record on appeal in this case and holds that

there was no error in the trial court’s judgment. It is ordered that the judgment of

the trial court is affirmed.


                                       SECOND DISTRICT COURT OF APPEALS



                                       By_________________________________
                                         Justice Bill Meier
                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                               NO. 02-11-00336-CV


THEODIS DODSON                                                          APPELLANT

                                          V.

SEAN COLSTON, TARRANT                                                   APPELLEES
COUNTY DIST. ATTY, AND THE
STATE OF TEXAS


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          FROM THE 236TH DISTRICT COURT OF TARRANT COUNTY

                                       ----------

                         MEMORANDUM OPINION1

                                       ----------

                                  I. INTRODUCTION

      Appellant Theodis Dodson, an inmate of the Connally Unit of the Texas

Department of Criminal Justice serving time for a murder conviction, appeals the

trial court’s dismissal of his civil lawsuit related to his conviction, which he filed

pro se and in forma pauperis, claiming that during his criminal trial, Appellees


      1
       See Tex. R. App. P. 47.4.

                                           2
Assistant District Attorney Sean Colston, the Tarrant County District Attorney,

and The State of Texas neglected a duty to “conduct themselves as to insure that

[he] receive[d] a fair trial” and that they “conspired to deprive [him] of his

constitutional right under the 14th Amendment of the United States Constitution.”

In three points, Dodson claims (1) that the trial court erroneously dismissed

Colston and the Tarrant County District Attorney from the suit without first having

held a fact hearing to determine whether his claims had a “basis in fact;” (2) that

the trial court abused its discretion by ruling on Colston’s amended motion to

dismiss without “proper notice” to him; and (3) that the trial court erred by

dismissing The State of Texas as a party to the suit. We will affirm.

                                  II. DISCUSSION

      Inmate lawsuits such as Dodson’s are controlled by Chapter 14 of the

Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code

Ann. §§ 14.001–14.014 (West 2002; West Supp. 2012).               Chapter 14 was

designed to control the flood of frivolous lawsuits being filed in the courts of this

state by prison inmates, consuming valuable judicial resources with little

offsetting benefit. Mullins v. Estelle High Sec. Unit, 111 S.W.3d 268, 271 n.1

(Tex. App.—Texarkana 2003, no pet.).

      We review the trial court’s dismissal of an in forma pauperis lawsuit such

as Dodson’s under an abuse of discretion standard.          Hickson v. Moya, 926

S.W.2d 397, 399 (Tex. App.—Waco 1996, no writ).            A trial court abuses its

discretion if it acts arbitrarily, capriciously, and without reference to any guiding


                                         3
rules or principles.   Lentworth v. Trahan, 981 S.W.2d 720, 722 (Tex. App.—

Houston [1st Dist.] 1998, no pet.). 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). In considering the record before us, we review and evaluate pleadings of

inmates proceeding pro se in civil lawsuits with liberality and patience. Foster v.

Williams, 74 S.W.3d 200, 202 n.1 (Tex. App.—Texarkana 2002, pet. denied).

      A.     Colston and the Tarrant County District Attorney

      In his first point, Dodson complains that the trial court erred by dismissing

Colston and the Tarrant County District Attorney from this suit without first having

held a fact hearing. In suits like this one, when there has been no fact hearing, a

trial court may dismiss a claim as frivolous or malicious under Chapter 14 where

the claim involved has no arguable basis in law. See Gill v. Boyd Distrib. Ctr., 64

S.W.3d 601, 603 (Tex. App.—Texarkana 2001, pet. denied).

      Here, Colston and the Tarrant County District Attorney, acting in their

official capacities as Dodson’s petition alleges,2 are shielded by the doctrine of


      2
        In his brief, Dodson claims that his suit “asserts claims under 42 U.S.C.
1983.” Dodson’s briefing also recites that a “section 1983 action will lie against
state officials in their personal or individual capacit[y],” but Dodson does not offer
any discussion as to how his petition pleaded a section 1983 claim against
Colston, the only party in this appeal who could have possibly been sued in his
individual capacity. Gordon v. Scott, 6 S.W.3d 365, 369 (Tex. App.—Beaumont
1999, pet. denied). Dodson’s petition does cite to “42 U.S.C.A. § 1983” but only
under a section titled, “Permission to Sue the State.” A specific review of
Dodson’s claims against Colston also reveals no section 1983 claim against
Colston in his individual capacity. Indeed, Dodson’s conspiracy claim specifically
states that “Colston [was] acting in his official capacity as an assistant district
attorney of Tarrant County.” And Dodson’s only other remaining claim against
Colston would be an alleged negligent violation of Code of Criminal Procedure
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prosecutorial immunity to Dodson’s claims of negligence and conspiracy related

to their prosecution of his murder conviction.3 Miller v. Curry, 625 S.W.2d 84,

86–87 (Tex. App.—Fort Worth 1981, writ ref’d n.r.e.) (reasoning that absolute

immunity from civil liability pertained to prosecutors acting in their official capacity

even where the “prosecutor knowingly used perjured testimony, deliberately

withheld exculpatory information or failed to make full disclosure of all facts”).

Thus, Dodson’s claims had no arguable basis in law, and the trial court did not

err by not conducting a fact hearing, nor did it err by dismissing Colston and the

Tarrant County District Attorney from Dodson’s civil suit for damages.              We

overrule this portion of Dodson’s first point.

      B.     Notice of Colston’s Motion to Dismiss

      In his second point, Dodson complains that the trial court ruled on

Colston’s amended motion to dismiss without first providing him a proper period

of notice. Dodson claims that he should have been given seven days to respond

to the dismissal motion. But under a Chapter 14 inmate suit, the trial court may


section 2.03. See Tex. Code Crim. P. Ann. art. 2.03 (West 2005). This claim
does not include any reference to section 1983. Furthermore, any alleged
prosecutorial misconduct claim would have been properly brought only during the
course of Dodson’s murder trial, and then only if it had been properly preserved.
See Hajjar v. State, 176 S.W.3d 554, 566 (Tex. App.—Houston [1st Dist.] 2004,
pet. ref’d) (reasoning that prosecutorial misconduct is independent basis for
objection that must be specifically urged to preserve error.).
      3
        Dodson’s claims in his petition are that during his criminal trial, the parties
he listed in this suit neglected their duties to ensure a fair trial by ignoring his
alleged mental illness and by conspiring to prevent Dodson from receiving a
competency hearing. There were more parties listed in his petition, but they are
not a part of this appeal.

                                           5
dismiss at any time if it determines, like it did here, that the claims involved have

no arguable basis in law. See Tex. Civ. Prac. & Rem. Code Ann. § 14.004(b)(2)

(West 2002); § 14.010 (West Supp. 2012). Furthermore, in this case, Dodson

filed a motion to reconsider, claiming he was not notified due to his incarceration.

A month later, the trial court heard and denied Dodson’s motion to reconsider.

See Finlan v. Peavy, 205 S.W.3d 647, 655–56 (Tex. App.—Waco 2006, no pet.)

(reasoning that post-judgment notice and reconsideration by the trial court is

adequate to cure having been previously denied notice). We overrule Dodson’s

second point.

      C.     The State of Texas

      In his third point, Dodson complains that the trial court abused its

discretion by releasing The State of Texas from this suit. But without a specific

statutory provision permitting a suit against the State of Texas, the State enjoys

sovereign immunity. The doctrine of sovereign immunity protects the State of

Texas from lawsuits for damages in all instances where the State has not waived

such immunity. Gen. Servs. Comm’n v. Little–Tex Insulation Co., 39 S.W.3d

591, 594 (Tex. 2001). The doctrine derives from the principle that the sovereign

may not be sued in its courts without its consent. Nueces County v. Ferguson,

97 S.W.3d 205, 216 (Tex. App.—Corpus Christi 2002, no pet.). This immunity

from suit deprives the trial court of subject-matter jurisdiction, even if liability is

undisputed. Travis Cnty. v. Pelzel & Assocs., Inc., 77 S.W.3d 246, 248 (Tex.

2002). Further, if a claim is barred by sovereign immunity, it has no arguable


                                          6
basis in law. Mullins v. Estelle High Sec. Unit, 111 S.W.3d 268, 271 n.1 (Tex.

App.—Texarkana 2003, no pet.).        We conclude that the trial court properly

determined that the State of Texas was immune from Dodson’s suit, and we hold

the trial court did not abuse its discretion by dismissing the State. We overrule

Dodson’s third point.

                                  III. CONCLUSION

      In addition to his three points in his brief, Dodson has also filed a separate

motion asking us to sustain the points he brings on appeal because the

appellees did not file a response to his brief on appeal. We deny the motion.

Having overruled all three of Dodson’s points and having denied his motion

requesting the same relief, we affirm the trial court’s judgment.




                                                    BILL MEIER
                                                    JUSTICE

PANEL: LIVINGSTON, C.J.; MEIER and GABRIEL, JJ.

DELIVERED: March 7, 2013




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