      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-16-00259-CV



                                      James Boone, Appellant

                                                 v.

                                 David Gutierrez, Chairman,
                         Texas Board of Pardons and Paroles, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT
    NO. D-1-GN-15-005894, HONORABLE AMY CLARK MEACHUM, JUDGE PRESIDING



                             MEMORANDUM OPINION


                James Boone, an inmate in the Texas Department of Criminal Justice who is

appearing pro se, appeals a Rule 91a dismissal of claims he had asserted against the Chairman of the

Texas Board of Pardons and Paroles.1 We will affirm the judgment of dismissal.

                According to Boone’s petition and exhibits thereto, he is currently serving a 75-year

sentence on a murder conviction and has completed 23 of those years. The thrust of his allegations

is that the Board, citing the violent nature of Boone’s offense and criminal history,2 has on several

occasions refused to grant him parole, or has postponed otherwise-scheduled parole reviews, rather

than taking account of various positive achievements he has attained behind bars. The Board’s



       1
           See Tex. R. Civ. P. 91a.
       2
          Boone also acknowledges that he was not reviewed for parole in 2011 due to a “major
disciplinary infraction,” although he maintains that this is his only “major infraction” to date.
actions, in Boone’s view, violate his constitutional due-process rights and entitle him to injunctive

relief.

                Boone’s suit was met with a Rule 91a dismissal motion urging that Boone lacked any

protected interest in parole that could serve as a predicate for a due-process claim. Following a

hearing at which Boone appeared and argued by telephone, the district court granted the motion and

rendered judgment dismissing Boone’s suit. This appeal followed.

                Boone brings four issues on appeal, none of which demonstrate reversible error.3 In

his first issue, Boone complains that “the trial court erred . . . in failing to reach the merits of [his]

complaint pursuant to Rule 91a.1,” which we interpret as disputing whether grounds existed for

dismissal under that rule. Rule 91a authorizes dismissal of a cause of action “on the grounds that

it has no basis in law or fact.”4 We review the trial court’s ruling on a Rule 91a motion de novo.5

The district court did not err in granting the motion because Boone’s claims lacked a basis in law.

“In Texas, parole ‘is the discretionary and conditional release of an eligible inmate,’”6 and


          3
         Although Boone has acted pro se both below and on appeal, we are bound to apply the
same substantive and procedural standards to him as we do with litigants represented by counsel, lest
we afford him an unfair advantage merely because he is pro se. See Mansfield State Bank v. Cohn,
573 S.W.2d 181, 184–85 (Tex. 1978).
          4
          Tex. R. Civ. P. 91a.1. “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,” whereas “[a] cause of action has no basis in fact if no reasonable person could believe the
facts pleaded.” Id.
          5
         See City of Dallas v. Sanchez, 494 S.W.3d 722, 724 (Tex. 2016) (per curiam); Koenig v.
Blaylock, 497 S.W.3d 595, 598 (Tex. App.—Austin 2016, pet. denied).
          6
          Vargas v. Texas Dep’t of Criminal Justice, No. 03-12-00119-CV, 2012 Tex. App. LEXIS
9916, at *11 (Tex. App.—Austin Nov. 30, 2012, pet. denied) (mem. op.) (quoting Tex. Gov’t Code
§ 508.001(6)).

                                                    2
“[w]hether an inmate will actually obtain parole is entirely speculative.”7 Therefore, “Texas law

does not create a liberty interest in being released on parole that is protected by the Due Process

Clause, and Texas prisoners have no constitutional expectation of release on parole.”8 Because

Boone has no protected liberty interest in parole, the Board’s actions in regard to granting him parole

could not violate his due process rights.9

                 Boone’s remaining issues are also without merit. His second issue, in which he seeks

reversal based on the district court’s failure to rule within the 45-day period prescribed by Rule

91a.3(c),10 is foreclosed by this Court’s recent holding that this deadline “is merely directory rather

than mandatory” and does not singularly require denial of a motion.11 Similarly, in Boone’s third



       7
            Id. (citing Madison v. Parker, 104 F.3d 765, 768 (5th Cir. 1997)).
       8
          Id. at *11–12 (citing Malchi v. Thaler, 211 F.3d 953, 957 (5th Cir. 2000) (concluding that
delay in consideration for parole cannot support constitutional claim)); see Johnson v. Rodriguez,
110 F.3d 299, 308 (5th Cir. 1997) (“It is . . . axiomatic that because Texas prisoners have no
protected liberty interest in parole they cannot mount a challenge against any state parole review
procedure on procedural (or substantive) Due Process grounds.” (citations omitted)).
       9
          Nor has Boone demonstrated any different outcome under the due-course-of-law provision
of the Texas Constitution. See, e.g., University of Tex. Med. Sch. at Hous. v. Than, 901 S.W.2d 926,
929 (Tex. 1995) (concluding that the Texas “due course” and federal “due process” clauses are
“without meaningful distinction” and therefore the Texas Supreme Court “consider[s] federal
interpretations of procedural due process to be persuasive authority in applying our due course of law
guarantee”); Fleming v. State, 376 S.W.3d 854, 858 (Tex. App.—Fort Worth 2012), aff’d,
455 S.W.3d 577 (Tex. Crim. App. 2014) (“[I]t would make little sense to treat substantive due
process claims any differently than procedural due process claims. We therefore will address
[appellant’s] arguments regarding due course of law or due process under federal law, regardless of
whether his claims are substantive or procedural in nature.” (citations omitted)).
       10
          See Tex. R. Civ. P. 91a.3(c) (“A motion to dismiss must be: . . . (c) granted or denied
within 45 days after the motion is filed.”).
       11
            See Koenig, 497 S.W.3d at 599.

                                                  3
issue, he urges in substance that he was entitled to take a default judgment before the district court

ruled on the Rule 91a motion,12 but any such complaint is ultimately moot or harmless because it

remains that dismissal was proper under Rule 91a. In his fourth and final issue, Boone complains

of error in failing to provide him a hearing on a new-trial motion he claims to have filed,13 but he

does not demonstrate that his motion presented any question of fact that necessitated a

hearing14—nor could he, as Rule 91a motions are decided as a matter of law.15

               We affirm the judgment.



                                               __________________________________________
                                               Bob Pemberton, Justice

Before Justices Puryear, Pemberton, and Field

Affirmed

Filed: July 19, 2017


       12
           Gutierrez did not file an answer, only a Rule 91a motion, and Boone filed a notice of intent
to take a default judgment. He urges on appeal that the district court erred in “fail[ing] to consider
[R]ule 99(c) prior to dismissing [his] cause of action.”
       13
          No such motion appears in the appellate record, although Boone’s brief attaches a notice
from the district court setting a hearing on his new-trial motion. Boone represents that the district
court subsequently canceled the hearing on grounds that its plenary power had run, which Boone
disputes.
       14
           See Soto v. General Foam & Plastics Corp., 458 S.W.3d 78, 85 (Tex. App.—El Paso
2014, no pet.) (“Generally, a hearing on a motion for new trial is not mandatory. . . . A trial court
is only required to conduct a hearing on a motion for new trial when the motion presents a question
of fact upon which evidence must be heard.” (citing Olsen v. Commission for Lawyer Discipline, 347
S.W.3d 876, 887 (Tex. App.—Dallas 2011, pet. denied); Landis v. Landis, 307 S.W.3d 393, 394
(Tex. App.—San Antonio 2009, no pet.))).
       15
           See Sanchez, 494 S.W.3d at 724 (“We review the merits of a Rule 91a motion de novo
because the availability of a remedy under the facts alleged is a question of law and the rule’s
factual-plausibility standard is akin to a legal-sufficiency review.”).

                                                  4
