                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                   No. 07-15-00152-CV


         JOE ADAM RAMIREZ AND FREDERICK Q. HERROD, APPELLANTS

                                            V.

  RISSIE OWENS AND TEXAS BOARD OF PARDONS AND PAROLES, APPELLEES

                           On Appeal from the 53rd District Court
                                   Travis County, Texas
          Trial Court No. D-1-GN-14-004398, Honorable Orlinda Naranjo, Presiding

                                  November 19, 2015

                            MEMORANDUM OPINION
                   Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

       Appellants, Joe Adam Ramirez and Frederick Q. Herrod, inmates proceeding pro

se and in forma pauperis, appeal from an order dismissing their lawsuit against Rissie

Owens and the Texas Board of Pardons and Paroles (collectively referred to as TBPP).

They sued to recover declaratory, equitable and monetary relief related to the failure of

the TBPP to 1) enact policies in accordance with Texas Government Code § 508.144

and 2) afford them due process viz their purported “defeasible liberty interest” in parole.

That “defeasible liberty interest” was allegedly created by policies of the TBPP enacted

per § 508.144.     The TBPP moved to dismiss the suit under Texas Rule of Civil
Procedure 91a.1.1 The motion was granted, which decision resulted in this appeal.2

We affirm.


        Per 91a.1, an 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. TEX. R. CIV. P. 91a.1. In turn, it has no basis in fact if no reasonable person

could believe the facts pleaded. Id. And, because the trial court may not consider

evidence in deciding the motion and must solely base its decision on the pleadings of

the cause of action coupled with exhibits attached thereto, TEX. R. CIV. P. 91a.6, our

review is also limited to consideration of the pleadings and exhibits attached thereto.

Nonetheless, we construe the pleadings liberally in favor of the plaintiff, look to the

pleader's intent, and accept as true the factual allegations (if any) stated therein to

determine if the cause of action has a basis in law or fact. Wooley v. Schaffer, 447

S.W.3d 71, 76 (Tex. App.—Houston [14th Dist.] 2014, pet denied). We also apply the

fair notice pleading standard applicable in Texas to determine whether the allegations of

the petition are sufficient to allege a cause of action. Id.


        We further note that an appellant’s burden on appeal is to illustrate that the trial

court erred in ruling as it did. Hardin v. Hardin, 597 S.W.2d 347, 349 (Tex. 1980).

Logically then, Ramirez and Herrod were obligated to show that their various claims

        1
           Texas Rule of Civil Procedure 91a permits the dismissal of a lawsuit on the grounds that it has
no basis in law or fact. TEX. R. CIV. P. 91a.1. However, it specifies that it is not applicable to actions
brought under the Family Code or “a case governed by Chapter 14 of the Texas Civil Practice and
Remedies Code.” Id. The latter encompasses civil actions initiated by prisoners who seek to prosecute
their suit as paupers. TEX. CIV. PRAC. & REM. CODE ANN. § 14.002 (West Supp. 2015). Ramirez and
Herrod fell within that category. So, the TBPP could not invoke, nor could the trial court utilize Rule 91a
to dismiss the action. Yet, because we cannot consider unassigned error, Pat Baker Co. v. Wilson, 971
S.W.2d 447, 450 (Tex. 1998), and no one complains of this defect, we cannot rely on it to reverse the
dismissal order.
        2
          Whether a cause of action has any basis in law or fact is a decision we review de novo. Wooley
v. Schaffer, 447 S.W.3d 71, 76 (Tex. App.—Houston [14th Dist.] 2014, pet denied).
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involved facts that a reasonable person could believe and the law entitled them to the

relief sought. That was not done.


       We initially observe that the live pleading of Ramirez and Herrod (that is, their

first amended complaint) states no facts but merely conclusions to support their causes

of action. This deficiency is of import since their allegations are founded upon conduct

or policies undertaken by the TBPP which they characterize as unlawful or

unconstitutional. Yet, any type of factual description of that conduct or of those policies

appears nowhere in the amended complaint.


       Second, their suit involves the matter of parole, their purported liberty interest to

it, and the TBPP’s alleged non-compliance with § 508.144 of the Government Code.

Though alleging that the policies of the TBPP vested them with a “defeasible liberty

interest” in release from prison, they fail to explain what they mean by a “defeasible

liberty interest.” And, as alluded to above, their pleadings do not describe the policies in

question or how those policies created a purported liberty interest. See Alford v. Dallas,

738 S.W.2d 312, 316-17 (Tex. App.—Dallas 1987, no writ) (stating that a property

interest protected by procedural due process arises where an individual has a legitimate

claim of entitlement that is created, supported or secured by rules or mutually explicit

understandings). This omission is fatal because courts have uniformly rejected the

arguments that inmates have a liberty interest in parole and the TBPP’s policies create

such an interest. Johnson v. Rodriguez, 110 F.3d 299, 305 (5th Cir. 1997); Gonzales v.

Tex. Bd. Of Pardons & Paroles, No. A-12-CA-1000-SS, 2012 U.S. Dist. LEXIS 158108,

at *10 (W.D. Tex. Nov. 5, 2012) (stating that “[b]ecause Texas inmates have no

protected liberty interest in parole, they cannot have a liberty interest in parole

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consideration or other aspects of parole procedures”); Martin v. State Board of Criminal

Justice, 60 S.W.3d 226, 230 (Tex. App.—Corpus Christi 2001) (citing Allison v. Kyle, 66

F.3d, 71, 74 (5th Cir. 1995) (stating that there is no liberty interest in parole created by

Texas law that is protected by due process and that an inmate cannot attack the

constitutionality of procedural devices attendant to parole decisions because he has no

liberty interest in obtaining parole). So, it was incumbent upon Ramirez and Herrod to

describe to us why the foregoing authority no longer applied or in what way changes to

the law or procedures breathed life into their claims, especially since their live

pleadings, and reasonable inferences therefrom, fail to indicate such changes.3


        Much the same applies to the allegation that the procedures enacted by the

TBPP somehow violated the “separation of powers when adopting policies that override

and or amend[ed]” sections 508.1411 and 508.144 of the Government Code.4




        3
           While it may be that Ramirez and Herrod informed the trial court, at the hearing upon the
TBPP’s motion to dismiss, of various procedures which allegedly were not followed when engaging in the
parole calculus, Rule 91a.6 prohibits our consideration of same. Again, only the pleadings and exhibits
may be considered under that rule, not any evidence which may have been proffered at the hearing. TEX.
R. CIV. P. ANN. 91a.6. This limitation also serves to address the argument that the trial court should have
acquired a copy of the TBPP’s policies before it granted the motion to dismiss. First, Ramirez and Herrod
cite no authority supporting the proposition, and the authority it did cite, i.e., Cire v. Cummings, 134
S.W.3d 835 (Tex. 2004), dealt with sanctions for discovery abuse, not Rule 91a. But, more importantly,
the trial court was restricted to perusing only the pleadings and exhibits thereto. If the policies were not
described in or attached as an exhibit to the pleadings, then they were beyond consideration.
        4
          The “separation of powers” alluded to by the appellants is found in article II, § 1 of the Texas
Constitution. The provision states that:

        The powers of the Government of the State of Texas shall be divided into three distinct
        departments, each of which shall be confided to a separate body of magistracy, to wit:
        Those which are Legislative to one; those which are Executive to another, and those
        which are Judicial to another; and no person, or collection of persons, being of one of
        these departments, shall exercise any power properly attached to either of the others,
        except in the instances herein expressly permitted.
                                                    4
According to the former:


        a) For each decision of a parole panel granting or denying the release of an
        inmate on parole, or denying the release of an inmate on mandatory supervision,
        the parole panel shall:

           (1) produce a written statement, in clear and understandable language, that
           explains:

               (A) the decision; and

               (B) the reasons for the decision only to the extent those reasons relate
               specifically to the inmate;

           (2) provide a copy of the statement to the inmate; and

           (3) place a copy of the statement in the inmate's file.

        (b) In a written statement produced under Subsection (a), the parole panel may
        withhold information that:

           (1) is confidential and not subject to public disclosure under Chapter 552; or

           (2) the parole panel considers to possibly jeopardize the health or safety of
           any individual.

        (c)  The board shall keep a copy of each statement produced under
        Subsection (a) in a central location.

TEX. GOV’T. CODE ANN. § 508.1411(a)-(c) (West Supp. 2015). In turn, § 508.144 states

that:


        (a) The [TBPP] board shall:

            (1) develop according to an acceptable research method the parole
            guidelines that are the basic criteria on which a parole decision is made;

            (2) base the guidelines on the seriousness of the offense and the likelihood
            of a favorable parole outcome;

            (3) ensure that the guidelines require consideration of an inmate's progress
            in any programs in which the inmate participated during the inmate's term of
            confinement;

            (4) establish and maintain a range of recommended parole approval rates
            for each category or score within the guidelines; and

                                             5
           (5) implement the guidelines.

      (b) The board shall meet annually to review and discuss the parole guidelines
      and range of recommended parole approval rates. The board may consult
      outside experts to assist with the review. The board shall prioritize the use of
      outside experts, technical assistance, and training in taking any action under
      Subsection (c). The board must consider:

           (1) how the parole guidelines and range of recommended parole approval
           rates serve the needs of parole decision-making; and

           (2) the extent to which the parole guidelines and range of recommended
           parole approval rates reflect parole panel decisions and predict successful
           parole outcomes.

      (c) Based on the board's review under Subsection (b), the board may:

           (1) update the guidelines by:

               (A) including new risk factors; or

               (B) changing the values of offense severity or risk factor scores; or

           (2) modify the range of recommended parole approval rates under the
           guidelines, if parole approval rates differ significantly from the range of
           recommended parole approval rates.

      (d) The board is not required to hold an open meeting to review the parole
      guidelines and range of recommended parole approval rates as required by
      Subsection (b), but any modifications or updates to the guidelines or range of
      recommended parole approval rates made by the board under Subsection (c)
      must occur in an open meeting.

Id. at § 508.144(a)-(d).   How the TBPP policies transgress either of the foregoing

statutes went undescribed in the live pleadings of Ramirez and Herrod. Indeed, no

purported transgression can be divined without a copy of the policies, and, again, they

were not included in those live pleadings.


      Since the separation of powers doctrine prohibits one branch of the state

government from exercising power inherently belonging to another branch, General

Servs. Comm. v. Little-Tex. Insulation Co., 39 S.W.3d 591, 600 (Tex. 2001), and the

legislature may properly delegate to an administrative agency the authority to establish
                                             6
rules and regulations reasonably carrying out the expressed purpose of a statute,

Oxford v. Hill, 558 S.W.2d 557, 560 (Tex. Civ. App.—Austin 1977, writ ref’d), Ramirez

and Herrod had to explain to us how the TBPP violated these edicts by enacting the

unknown policies in question. They did not either in their brief or their live pleading. So,

we cannot say that they satisfied their obligation to show that the trial court erred in

concluding that the claim lacked basis in law and fact under Rule 91a.


       The issues posed to us are overruled, and the judgment of the trial court is

affirmed.


                                                               Brian Quinn
                                                               Chief Justice




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