Affirmed and Opinion Filed June 28, 2016.




                                              In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-15-01173-CV

                            HOWARD HOLLAND, Appellant
                                                V.
                                 TARYN DAVIS, Appellee

                         On Appeal from the 422nd Judicial District Court
                                    Kaufman County, Texas
                               Trial Court Cause No. 93042-422

                                MEMORANDUM OPINION
                          Before Justices Myers, Stoddart, and Whitehill
                                   Opinion by Justice Stoddart

       Howard Holland, pro se, appeals the trial court’s order granting Taryn Davis’s “motion to

dismiss a baseless cause of action” pursuant to rule of civil procedure 91a. Holland argues the

trial court erred by granting the motion to dismiss because Davis did not file any special

exceptions. We affirm.

       This lawsuit arises out of Holland’s previous conviction. In his criminal case, police

obtained a saliva sample from Holland pursuant to a search warrant. Holland was arrested, and

Davis was appointed as his counsel. She filed a motion to suppress the saliva sample. The

record does not include the criminal trial court’s order on the motion to suppress; Davis asserts in

her motion to dismiss that the motion to suppress was denied.
          At the time of his arrest, Holland was serving a term of community supervision. One of

the terms of his community supervision was that he provide a DNA sample to his probation

officer, which he did.

          In this lawsuit, Holland alleges Davis breached her fiduciary duty to him because she

“knew or should have known that someone other than the police first obtain [sic] Holland’s DNA

sample.” Holland does not explain how Davis’s knowledge that the probation officer previously

obtained his DNA sample would be relevant to the motion to suppress.

          Davis filed a motion to dismiss Holland’s lawsuit pursuant to rule 91a arguing Holland’s

claim has no basis in law or fact. See TEX. R. CIV. P. 91a. “A cause of action has no basis in law

if the allegations, taken as true, together with inferences reasonably drawn from them, do not

entitle the claimant to the relief sought.” Id. Except as required to determine an award of

attorney’s fees under 91a.7, “the court may not consider evidence in ruling on the motion and

must decide the motion based solely on the pleading of the cause of action, together with any

pleading exhibits permitted by Rule 59.” TEX. R. CIV. P. 91a.6. We review the grant of a rule

91a motion to dismiss de novo. Highland Capital Mgmt., LP v. Looper Reed & McGraw, P.C.,

No. 05-15-00055-CV, 2016 WL 164528, at *2 (Tex. App.—Dallas Jan. 14, 2016, pet. denied)

(citing City of Dallas v. Sanchez, 449 S.W.3d 645, 649–50 & n. 3 (Tex. App.—Dallas 2014, pet.

filed).

          Although Holland argues that Davis’s rule 91a motion to dismiss must fail because she

did not specially except to his petition, he does not cite any authority requiring a defendant to file

special exceptions before seeking a rule 91a dismissal. We also have not found any.

          In support of her motion, Davis argues Holland’s claims fail because he pleaded guilty

and has not alleged he has been exonerated. Rather, his petition states he is incarcerated.

Therefore, she asserts, Holland’s breach of fiduciary duty claim fails as a matter of law. See

                                                 –2–
Peeler v. Hughes & Luce, 909 S.W.2d 494, 497–98 (Tex. 1995) (plurality op.). In Peeler, the

Texas Supreme Court held that “it is the illegal conduct rather than the negligence of a convict’s

counsel that is the cause-in-fact of any injuries flowing from the conviction, unless the

conviction has been overturned.” Id. at 498; see also Shepherd v. Mitchell, No. 05-14-01235-

CV, 2016 WL 2753914, at *1 (Tex. App.—Dallas May 10, 2016, no. pet. h.). The sole legal

cause of the conviction and any damages is the person’s own illegal conduct, unless his

conviction has been overturned and he has been exonerated. Peeler, 909 S.W.2d at 498. The

person convicted is barred from bringing legal malpractice claims related to that conviction. See

id.

          The Peeler doctrine has been applied to claims for breach of fiduciary duty. See Wooley

v. Schaffer, 447 S.W.3d 71, 77 (Tex. App.—Houston [14th Dist.] 2014, pet. denied); Futch v.

Baker Botts, LLP, 435 S.W.3d 383, 391–92 (Tex. App..—Houston [14th Dist.] 2014, no. pet.)

(collecting cases). Further, Texas courts do not permit plaintiffs to convert what are really

professional negligence claims into breach of fiduciary duty claims. See Won Pack v. Harris,

313 S.W.3d 454, 457 (Tex. App.—Dallas 2010, pet. denied).

          Holland’s breach of fiduciary duty claim alleges Davis was negligent in her

representation of him by failing to handle the motion to suppress correctly. Holland’s claim

against Davis is a properly treated as a professional negligence claim. Whether we treat his

cause of action as a claim for breach of fiduciary duty or as a professional negligence claim, we

conclude his claim fails as a matter of law because Holland’s conviction has not been overturned.

See Peeler, 909 S.W.2d at 498. Because we conclude Holland’s cause of action for breach of

fiduciary duty has no basis in law or fact under the Peeler doctrine, we conclude the trial court

did not err by granting Davis’s rule 91a motion to dismiss. We overrule Holland’s arguments on

appeal.

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      We affirm the trial court’s order granting Davis’s motion to dismiss.




                                                   /Craig Stoddart/
                                                   CRAIG STODDART
                                                   JUSTICE



151173F.P05




                                             –4–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                         JUDGMENT

HOWARD HOLLAND, Appellant                             On Appeal from the 422nd Judicial District
                                                      Court, Kaufman County, Texas
No. 05-15-01173-CV         V.                         Trial Court Cause No. 93042-422.
                                                      Opinion delivered by Justice Stoddart.
TARYN DAVIS, Appellee                                 Justices Myers and Whitehill participating.

     In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

       It is ORDERED that appellee TARYN DAVIS recover her costs of this appeal from
appellant HOWARD HOLLAND.


Judgment entered this 28th day of June, 2016.




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