
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-01-00629-CV


Joseph Rome, Appellant

v.

Eugene Burden, Michel Cabello, Angela Phillips, and Sareta Davis, Appellees





FROM THE DISTRICT COURT OF TRAVIS COUNTY, 353RD JUDICIAL DISTRICT
NO. GN002469, HONORABLE DARLENE BYRNE, JUDGE PRESIDING





	Appellant Joseph Rome, a former inmate, sued appellees Eugene Burden, Michel
Cabello, Angela Phillips, and Sareta Davis, employees of the Parole Division of the Texas
Department of Criminal Justice, seeking a declaratory judgment that his Fourth Amendment rights
were violated when the Texas Parole Board ("the Board") required him to submit a DNA sample. 
See Tex. Gov't Code Ann. § 411.148 (West Supp. 2002).  Appellees filed a motion for summary
judgment asserting the affirmative defenses of sovereign immunity and qualified immunity.  The trial
court granted the motion, and Rome appeals to this Court pro se and in forma pauperis contending
that the attorney general lacks the authority to represent appellees in the present case, that the
answers to his petition submitted by appellees are invalid, and that the trial court erred in granting
appellees' motion for summary judgment.  We will affirm the trial court's judgment.

BACKGROUND
	As a parolee and former inmate of the Texas Department of Criminal Justice, the
Board required Rome to submit a DNA sample.  Following the taking of his sample, Rome filed suit
alleging that he did not give his sample voluntarily, but was subject to oppression and coerced into
providing the sample.  He contends that this action constituted an unlawful search and seizure in
violation of his rights under the Fourth Amendment to the United States constitution. (1)  He asserted
his claim under 42 U.S.C.A. § 1983 (West Supp. 2002) ("section 1983").  In response, appellees
filed a motion for summary judgment claiming sovereign and qualified immunity. (2)  The trial court
granted the motion, and Rome filed this appeal. 

STANDARD OF REVIEW
	Because the propriety of a summary judgment is a question of law, we review the trial
court's decision de novo.  Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994); Hunt,
Hopkins & Mitchell, Inc. v. Facility Ins. Corp., 78 S.W.3d 564, 567 (Tex. App.--Austin 2002, pet.
denied).  The purpose of summary judgment is not to deprive a litigant of the right to trial by jury,
but to eliminate patently unmeritorious claims.  City of Clear Creek Basin Authority, 589 S.W.2d
671, 678 n.5 (Tex. 1979).  The standards for reviewing a traditional motion for summary judgment
are well established:  (1) the movant for summary judgment has the burden of showing that no
genuine issue of material fact exists and that it is entitled to judgment as a matter of law; (2) in
deciding whether there is a disputed material fact issue precluding summary judgment, evidence
favorable to the nonmovant will be taken as true; and (3) every reasonable inference must be
indulged in favor of the nonmovant and any doubts resolved in its favor.  Nixon v. Mr. Prop. Mgmt.
Co., 690 S.W.2d 546, 548-49 (Tex. 1985).  To demonstrate entitlement to judgment as a matter of
law, the movant must show either that one of the elements of the plaintiff's cause of action does not
exist or that all elements of an affirmative defense are conclusively established.  Roark v. Stallworth
Oil & Gas, Inc., 813 S.W.2d 492, 495 (Tex. 1991).  Appellees contend that they are entitled to
summary judgment on both grounds. 

DISCUSSION
	We will first address Rome's complaints regarding the authority of the attorney
general to represent appellees in the present case and the validity of appellees' answer to his petition.

Authority of Attorney General to Represent Appellees
	Rome contends that a conflict of interest exists when assistant attorneys general
represent governmental employees.  He contends that under Article 6 of the United States
constitution all executive officers of the several states must support the federal constitution.  Because
he contends appellees have violated the constitution, he further contends it would be a further
violation of the constitution for the attorney general to defend appellees.  To reach this conclusion,
however, he must put the cart before the horse; he must presume appellees have violated the
constitution.  We are unwilling to make this presumption.  Furthermore, Texas law requires the
attorney general to defend public servants against claims for violations of a person's federal
constitutional rights such as the violations Rome alleges under section 1983.  See Tex. Civ. Prac.
& Rem. Code §§ 104.002-.004 (West 1997 & Supp. 2002).  Accordingly, the attorney general acted
properly in representing appellees in the present case; Rome's claim that the attorney general lacked
authority is without merit.

Appellees' General Denial
	Rome asserts that his right to due process was violated and the trial court committed
reversible error when it permitted appellees to file a general denial; he contends that appellees did 
not "address [his] petition in full."  We disagree.  The Texas Rules of Civil Procedure indicate the
manner in which a defendant may respond in an original answer.  Tex. R. Civ. P. 85.  Rule 85
specifically provides that an answer may consist of, among other items, a general denial and
affirmative defenses.  The record reflects that appellees filed answers that included a general denial,
admissions, special denials, and affirmative defenses. (3)  The appellees' answers contained more than
the minimum amount of information necessary under rule 85.  Accordingly, Rome's claim that
appellees failed to fully address his petition is without merit.

Summary Judgment
	Appellees alleged that they were entitled to summary judgment based on sovereign
immunity to the extent they were sued in their official capacities.  The supreme court has held that
neither a state nor its officials, while acting in their official capacities, are "persons" who may be
liable under section 1983.  Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989); Harrison
v. Texas Dept. of Crim. Justice, 915 S.W.2d 882, 889 (Tex. App.--Houston [1st Dist.] 1995, no
writ).  As a result, any claim asserted by Rome under section 1983 cannot be maintained against
appellees in their official capacity.  Accordingly, the trial court did not err in granting summary
judgment on this basis.
	Appellees also alleged they were entitled to summary judgment based on qualified
immunity.  If a government official performing a discretionary function does not violate a clearly
established statutory or constitutional right of which a reasonable person would have known, that
official is shielded from liability.  Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).  Rome did not
contest appellees' assertion of qualified immunity.  In fact, the record reflects that he admitted
appellees were acting in good faith, under color of state law.  Rather, the record reflects that Rome
contends appellees were not acting in an official capacity.  However, this argument is not clearly
articulated in his briefs to this Court or in the record.  As clearly as we can discern, he argues that
appellees did not have authority to require the taking of his DNA sample because he was a parolee
at the time, rather than an inmate.  We conclude, however, that it is not necessary to reach this issue. 
Qualified immunity is an affirmative defense.  We need only reach this issue if there is a clearly
established statutory or constitutional right violated.  Rome has not alleged any violation of a
statutory right.  The only violation alleged by Rome is a Fourth Amendment constitutional violation. 
But he does not explain the facts that support his case.  Rather, he argues generally that under section
411.148, the taking of a DNA sample from a parolee constitutes an unconstitutional search and
seizure.  We conclude from our research, however, that no constitutional violation exists under this
general circumstance.  In analyzing the federal statute requiring the collection of DNA samples from
inmates, parolees, and those on probation, (4) federal courts have engaged in a balancing test and
determined that the DNA collection procedure advances a legitimate governmental and public
interest and the intrusion into the felons' privacy is reasonable in light of that interest.  Groceman
v. United States Dept. of Justice, No. 3:01-CV-1619-G, 2002 U.S. Dist. LEXIS 11491, at *9 (N.D.
Tex. June 26, 2002).  In other words, having the status of a parolee confers no greater protection than
that provided to inmates under the Fourth Amendment with respect to the collection of a DNA
sample.  Because this is the only basis for which Rome alleged a constitutional violation, we
conclude that the trial court correctly granted summary judgment.  Furthermore, as Rome did not
establish the predicate constitutional violation, we need not reach the issue of qualified immunity.

CONCLUSION
 Based on the foregoing analysis, we conclude that the trial court did not err in
granting summary judgment.  Accordingly, we overrule Rome's issues (5) and affirm the trial court's
judgment.


					__________________________________________
					David Puryear, Justice
Before Justices Kidd, Patterson and Puryear
Affirmed
Filed:   October 31, 2002
Do Not Publish
1.  Rome also asserted that his constitutional rights were violated by the loss of his "good-time" credit and by the requirement that he register as a sex offender.  He did not sufficiently develop
these arguments in the trial court below or on appeal, and we are unable to discern his complaints.
2.  Rome also asserted a claim under the Texas Tort Claims Act, and appellees asserted an
affirmative defense under this Act; however, Rome dropped this claim on appeal.
3.  Burden and Cabello filed their answer on September 20, 2000; Phillips and Davis filed a
separate answer and plea to the jurisdiction on October 18, 2000.
4.   42 U.S.C. §§ 14135-14135e (West Supp. 2002) (DNA Analysis Backlog Elimination Act
of 2000).  This statute is substantially similar in purpose to section 411.148.  See Tex. Gov't Code
Ann. § 411.143 (West 1997).
5.  To the extent we were unable to discern the nature of Rome's complaints regarding "good-time" credit and sex offender registration, those issues are overruled.

