

Opinion filed June 16,
2011
 
                                                                       In The
                                                                              
  Eleventh
Court of Appeals
                                                                   __________
 
                                                         No. 11-09-00208-CV
                                                    __________
 
                           JAMES
PATRICK SULLIVAN, Appellant
 
                                                             V.
 
                               RISSIE
L. OWENS ET AL, Appellees

 
                                    On
Appeal from the 12th District Court
                                                           Walker
County, Texas
                                                      Trial
Court Cause No. 24232
 

 
O
P I N I O N
            This
is an appeal from an order dismissing an inmate’s pro se civil action. 
Appellant challenges the dismissal in three issues.  We affirm.
Background
Facts
            James
Patrick Sullivan is an inmate confined in the Institutional Division of the
Texas Department of Criminal Justice as a result of a conviction occurring in
the 347th District Court of Nueces County.  He instituted the underlying action
in the 12th District Court of Walker County by initially attempting
to file an application for writ of habeas corpus.  He subsequently filed
additional pleadings challenging his confinement.  He named several State officials
and employees as defendants in his subsequent pleadings, contending that they
have “seize[d] sentence credits by conversion” from him without due process.  Among
other things, he sought the return of his sentence credits.  He also sought the
issuance of a permanent injunction to enjoin the defendants from “continuing
with the current forfeiture of calendar time sentence credits policies.”  He also
filed a pleading indicating that he would be seeking compensation from the
defendants “for the maximum value of the property seized.”[1]
            Prior
to service of process on the defendants, the trial court entered an order
requiring the Texas Attorney General’s Office to review appellant’s pleadings
for compliance with Chapter 14 of the Texas Civil Practice and Remedies Code.[2] 
The order additionally required the Attorney General’s Office to file an
“advisory” with the trial court as an amicus curiae “as to whether the inmate
plaintiff has satisfied all of the statutory requirements.”  The Attorney
General’s Office complied with the trial court’s order by filing an eleven-page
response detailing the matters raised in appellant’s pleadings.  The response
contained a summary of the claims set out in appellant’s lengthy, handwritten
pleadings.  Specifically, the response stated as follows:
The
crux of the complaint is that Petitioner’s street-time credit[3]
was “forfeited” without due process, in violation of the forfeiture provisions
contained within Chapter 59 of the Texas Code of Criminal Procedure.  He
further alleges that street-time credit is tangible property subject to the Due
Process Clause under Art. 1, § 19 of the Texas Constitution.  Finally,
Petitioner alleges that forfeiture of street-time credit by the Texas Board of
Pardons and Paroles violates the separation of powers doctrine under Art. 2, § 1
of the Texas Constitution because the deprivation allegedly alters the sentence
originally imposed by the judiciary. 
 
Petitioner
characterizes the action as an “ex parte” petition.  He seeks permanent
injunctive relief that would prevent the Texas Board of Pardons and Paroles
from implementing existing policies concerning forfeiture of street-time
credit, declarative relief regarding specific issues, restoration of
street-time credit, monetary damages, class certification, appointment of
counsel, joinder of claims, and “any other relief . . . which is necessary or
expedient for implementing any corrective action” (footnote omitted).  
 
            The
Attorney General’s Office concluded that appellant sought both habeas corpus
relief (restoration of street-time credit) and non-habeas civil relief
(declarative and injunctive relief as well as monetary damages).  With respect
to the non-habeas civil relief, the Attorney General’s Office asserted that
Chapter 14 applied and that appellant’s failure to comply with the statutory
requirements permitted dismissal of the claims.  The Attorney General’s Office
also asserted that appellant’s habeas corpus claim was not cognizable.  The
trial court subsequently entered an order of dismissal that provided in
relevant part as follows:
            After
reviewing Petitioner’s pleadings and the Amicus Curiae response filed by the
Attorney General of Texas, the Court is of the opinion that the Petitioner’s
Non-Habeas Corpus claims fail to meet the requirements of Chapter 14 Tex. Civ.
Prac. & Rem. Code and should be dismissed and that Petitioner’s Habeas
Corpus claims are not filed in the Court of conviction as required by Texas
Code of Criminal Procedure 11.07 and should be dismissed.
 
                        It
is therefore ORDERED that this cause is DISMISSED.
 
Analysis
Chapter 14 of the Texas Civil Practice and Remedies Code applies to lawsuits filed by
an inmate in district court where the inmate files an affidavit or unsworn
declaration of an inability to pay costs.  See Section 14.002(a).  The
legislature enacted Chapter 14 to control the flood of frivolous lawsuits being
filed in Texas courts by prison inmates because these suits consume many
valuable judicial resources with little offsetting benefits.  Bishop v.
Lawson, 131 S.W.3d 571, 574 (Tex. App.—Fort Worth 2004, pet. denied); Thomas
v. Knight, 52 S.W.3d 292, 294 (Tex. App.—Corpus Christi 2001, pet.
denied).  Chapter 14 sets forth procedural requirements an inmate must satisfy
as a prerequisite to filing suit. Sections 14.002, 14.004–.006; see also
Lilly v. Northrep, 100 S.W.3d 335, 336 (Tex. App.—San Antonio 2002,
pet. denied).  A court may dismiss a claim before service of process under
Chapter 14 for noncompliance.  Section 14.003.  Even if an inmate satisfies the
necessary filing requirements, however, the trial court may dismiss an inmate’s
claim if it finds the claim to be frivolous or malicious.  Section 14.003; Comeaux
v. Tex. Dep’t of Criminal Justice, 193 S.W.3d 83, 86 (Tex. App.—Houston
[1st Dist.] 2006, pet. denied).  A claim is frivolous or malicious if it has no
basis in law or fact or if its realistic chance of ultimate success is slight.  Section
14.003(b)(1)-(2).
We generally review a trial court’s dismissal of an inmate’s suit under Chapter 14 for
abuse of discretion.  See Wilson v. TDCJ-ID, 268 S.W.3d 756, 758
(Tex. App.—Waco 2008, no pet.); Bishop, 131 S.W.3d at 574; Thompson
v. Tex. Dep’t Criminal Justice-Institutional Div., 33 S.W.3d 412, 414 (Tex.
App.—Houston [1st Dist.] 2000, pet. denied).  A trial court abuses its
discretion if it acts in an arbitrary or unreasonable manner without reference
to guiding rules or principles. Garcia v. Martinez, 988 S.W.2d 219, 222
(Tex. 1999). When reviewing matters committed to the trial court’s discretion,
we may not substitute our own judgment for that of the trial court.  Walker
v. Packer, 827 S.W.2d 833, 839 (Tex. 1992).
            Appellant
asserts in his first issue that the district clerk erred in failing to inform
him of any deficiencies in his pleadings when he presented them for filing.  This issue is not subject to review because it does not point out any error allegedly
committed by the trial court.  See Canton-Carter v. Baylor Coll. of Med.,
271 S.W.3d 928, 931 (Tex. App.—Houston [14th Dist.] 2008, no pet.).  The scope of our appellate jurisdiction is limited to reviewing decisions by a lower
court; we lack appellate jurisdiction over an act of the district clerk.  See
Newman v. Castro, No. 12-04-00051-CV, 2005 WL 1243418, *2 n.5 (Tex. App.—Tyler
May 25, 2005, pet. dism’d w.o.j.) (mem. op.).  Appellant’s first issue is
overruled.
In
his second issue, appellant contends that the trial court erred in dismissing
his suit because his claim for the restoration of street-time credit is
cognizable as a claim for habeas corpus relief.[4] 
A “writ of habeas corpus is the remedy to be used when
any person is restrained [of] his liberty.”  Tex.
Code Crim. Proc. Ann. art. 11.01 (Vernon 2005).  An application for writ of habeas corpus filed after final conviction in a felony case must be filed
with the clerk of the court in which the conviction being challenged was
obtained.  Tex. Code  Crim. Proc. Ann.
art. 11.07, § 3(b) (Vernon Supp. 2010).  Dismissal is required when an
application for writ of habeas corpus is filed with the district clerk of a
county other than the county of conviction.  Ex parte Burgess, 152
S.W.3d 123 (Tex. Crim. App. 2004).  Accordingly, the trial court did not err in
dismissing appellant’s claims for habeas corpus relief.  Appellant’s second
issue is overruled. 
            Appellant
asserts in his third issue that the Attorney General’s Office erroneously
asserted in its advisory that he failed to exhaust his administrative remedies
prior to filing suit.[5]
Among other requirements, an inmate must file an affidavit or unsworn
declaration stating the date that the grievance underlying the lawsuit was
filed and the date of the TDCJ’s written decision, along with “a copy of the
written decision from the grievance system.”  Section 14.005(a)(1)-(2).  Should
the inmate fail to comply with these requirements, his suit will be dismissed.  Lilly,
100 S.W.3d at 336.  Irrespective of the merits of appellant’s contention, it is
not dispositive because there were other procedural requirements that he did
not comply with, including the requirement that he file an affidavit or unsworn
declaration pertaining to previous filings.  Section 14.004.  Appellant’s third issue is overruled.
This
Court’s Ruling
             The
judgment of the trial court is affirmed.
 
 
                                                                                                PER
CURIAM
 
June 16, 2011
Panel[6]
consists of:  Wright, C.J.,
McCall, J., and Hill, J.[7]
 




                [1]Appellant also attempted to assert a class action in
his pleadings.  In this regard, over twenty other inmates filed documents in
the trial court referencing appellant’s pleadings.  The trial court did not
issue any orders pertaining to the other inmates.  Furthermore, appellant is the
only inmate that filed a notice of appeal.  Accordingly, the other inmates are
not parties to this appeal.  
 


                [2]Tex. Civ. Prac. & Rem.
Code Ann. ch. 14 (Vernon 2002 & Supp.
2010).
 


                [3]The
response states that “street-time credit” refers to calendar time a person
receives toward his sentence for days spent on parole or mandatory supervision.


                [4]We
express no opinion on the merits of appellant’s claim for the restoration of
street-credit time.
 


                [5]In
the interest of justice, we will treat appellant’s issue as a complaint that
the trial court erred in relying on the exhaustion of remedies requirement in
dismissing his case.  
 


[6]Rick Strange, Justice, resigned effective April 17,
2011.  The justice position is vacant pending appointment of a successor by the
governor.


 
[7]John G. Hill, Former Justice, Court of Appeals, 2nd
District of Texas at Fort Worth, sitting by assignment.


