                                                                                        ACCEPTED
                                                                                   01-14-00795-CV
                                                                          FIRST COURT OF APPEALS
                                                                                 HOUSTON, TEXAS
                                                                              2/9/2015 10:40:57 AM
                                                                               CHRISTOPHER PRINE
                                                                                            CLERK

                              No. 01-14-00795-CV

                      IN THE COURT OF APPEALS               FILED IN
                                                     1st COURT OF APPEALS
                  FOR THE FIRST JUDICIAL DISTRICT        HOUSTON, TEXAS
                           HOUSTON, TEXAS            2/9/2015 10:40:57 AM
          __________________________________________________
                                                     CHRISTOPHER A. PRINE
                                                                  Clerk
                 GERALD E. GILBERT, TDCJ No. 1236206
                           Plaintiff-Appellant,
                                     v.
            TEXAS DEPARTMENT OF CRIMINAL JUSTICE, et al.,
                          Defendants-Appellees
          _________________________________________________

               On Appeal from the 412th Judicial District Court
                          Brazoria County, Texas
          _________________________________________________

                      APPELLEES’ JOINT BRIEF
          _________________________________________________

KEN PAXTON                             *BRIANA WEBB
Attorney General of Texas               Assistant Attorney General
                                        Texas Bar No. 24077883
CHARLES E. ROY                          Office of the Attorney General
First Assistant Attorney General        P.O. Box 12548
                                        Austin, Texas 78711-2548
JAMES E. DAVIS                          briana.webb@texasattorneygeneral.gov
Deputy Attorney General for
Defense Litigation                      *KYLE SMITH
                                        Assistant Attorney General
KAREN D. MATLOCK                        Texas Bar No. 24086814
Assistant Attorney General              Office of the Attorney General
Chief, Law Enforcement Defense          P.O. Box 12548
Division                                Austin, Texas 78711-2548
                                        kyle.smith@texasattorneygeneral.gov

                        ATTORNEYS FOR APPELLEES

                               *Counsel of Record
                   IDENTITY OF PARTIES AND COUNSEL
Appellant
Gerald E. Gilbert
TDCJ No. 1236206
Appellant pro se


Appellees
Bobby Purvis
Carla Joseph
James Massbarger
Justin Watterson
Represented by:
Briana Webb
Assistant Attorney General
State Bar No. 24077883
Office of the Texas Attorney General
P.O. Box 12548
Austin, Texas 78711-2548


Appellees
The University of Texas Medical Branch
Paul Strunk
Glenda Adams
Stephen Smock
Tawana Smith
Represented by:
Kyle Smith
Assistant Attorney General
State Bar No. 24086814
Office of the Texas Attorney General
P.O. Box 12548
Austin, Texas 78711-2548

                                         ii
                                        TABLE OF CONTENTS


STATEMENT REGARDING ORAL ARGUMENT ........................................... v

STATEMENT OF THE CASE ............................................................................... 1
ISSUES PRESENTED ............................................................................................. 2
STATEMENT OF FACTS ...................................................................................... 2
SUMMARY OF THE ARGUMENT ..................................................................... 3
ARGUMENT ............................................................................................................ 4
         A.       Gilbert did not have a proprietary interest to select which
                  judge would preside over his case in the county of filing ................ 4

         B.       Gilbert did not have a right to attend a hearing on Appellees’
                  Motion to Dismiss under Chapter 14 ................................................ 5

         C.       Chapter 14 may be constitutionally applied to federal
                  claims filed in state court .................................................................... 7

CONCLUSION......................................................................................................... 9




                                                          iii
                                    INDEX OF AUTHORITIES


European CrossCRds' Shopping Ctr., Ltd. v. Criswell,
     910 S.W.2d 45, 51 (Tex. App.—Dallas 1995) ................................................ 5

Felder v. Casey,
      487 U.S. 131 (1988)..................................................................................... 7, 8

Hamilton v. Pechacek,
     319 S.W.3d 801, 808 (Tex. App.—Ft. Worth (2010) ..................................... 6

Howlett By & Through Howlett v. Rose,
     496 U.S. 356, 372 (1990) ................................................................................ 7

Hughes v. Massey,
     65 S.W.3d 743, 745 (Tex. App.—Beaumont 2001) ........................................ 8

In re PG & E Reata Energy, L.P.,
       4 S.W.3d 897, 901 (Tex. App.—Corpus Christi 1999) ............................... 4, 5

In re Rio Grande Valley Gas Co.,
       8 S.W.3d 303, 309 (Tex. 1999) ................................................................... 4, 5

Gerdes v. Kennamer,
     155 S.W.3d 523, 529 (Tex. App.—Corpus Christi 2004) ............................... 5

Polk v. Sw. Crossing Homeowners Ass'n,
      165 S.W.3d 89, 93 (Tex. App.—Houston [14th Dist.] 2005) ......................... 4

Richard v. Dretke, No. 14-08-00714-CV, 2009 WL 909621,
      at *4 (Tex. App.—Houston [14th Dist.] Apr. 7, 2009) ................................... 9

Thomas v. Bush, 23 S.W.3d 215, 218
     (Tex. App.—Beaumont 2000) ..................................................................... 8, 9

Thomas v. Wichita Gen. Hosp.,
     952 S.W.2d 936, 938 (Tex. App.—Ft. Worth 1997) ....................................... 7



                                                        iv
Williams v. Texas Dep't of Criminal Justice Inst. Div.,
      No. 14-01-00646-CV, 2002 WL 1822424, at *2
      (Tex. App.—Houston [14th Dist.] Aug. 8, 2002) ........................................... 9



STATUES
Tex. Civ. Prac. & Rem. Code 330(e) ......................................................................... 4
Tex. Civ. Prac. & Rem. Code §14.002(a) .................................................................. 8
Tex. Civ. Prac. & Rem. Code §14.003(c) .................................................................. 6
42 U.S.C. § 1983 ........................................................................................................ 2
42 U.S.C. § 1997e ...................................................................................................... 8




                                                            v
              STATEMENT REGARDING ORAL ARGUMENT

      Appellees contend that the arguments briefed are well-settled areas of the law,
and the Court would not be significantly aided by oral argument on these issues.
Appellees accordingly do not request oral argument in this matter.




                                         vi
                                 No. 01-14-00795-CV

                       IN THE COURT OF APPEALS
                   FOR THE FIRST JUDICIAL DISTRICT
                            HOUSTON, TEXAS
           __________________________________________________

                   GERALD E. GILBERT, TDCJ No. 1236206
                             Plaintiff-Appellant,
                                       v.
              TEXAS DEPARTMENT OF CRIMINAL JUSTICE, et al.,
                            Defendants-Appellees
            _________________________________________________

                 On Appeal from the 412th Judicial District Court
                            Brazoria County, Texas
            _________________________________________________

                        APPELLEES’ JOINT BRIEF
            _________________________________________________

To the Honorable Justices of the First Court of Appeals:
      Appellees, Carla Joseph, James Mossbarger, Bobby Purvis, Justin Watterson,

the University of Texas Medical Branch, Glenda Adams, Tawana Smith, Paul

Strunk, and Stephen Smock, through the Attorney General for the State of Texas,

file their Joint Appellees’ Brief and respectfully show the Court as follows:

                           STATEMENT OF THE CASE
      Appellant Gerald Gilbert (“Gilbert”), proceeding pro se and in forma

pauperis, is an inmate in the custody of the Texas Department of Criminal Justice

(“TDCJ”) and was confined at the Ramsey Unit in Rosharon, Texas at all times

relevant to this litigation. (See CR at 6-20). Gilbert filed his Original Petition in this

                                            1
cause on March 25, 2014 asserting claims for relief relating to the conditions of his

confinement under state and federal law. (See id.). Appellees jointly filed their

Motion to Dismiss under Chapter 14 of the Texas Civil Practice and Remedies Code

(“Chapter 14”) on May 28, 2014 (CR at 121), which was subsequently granted by

the trial court on September 5, 2014. (CR at 277). Gilbert timely filed his Notice of

Appeal on September 23, 2014. (CR at 280).

                               ISSUES PRESENTED
I.     Whether Gilbert had the right to determine which trial judge would preside
       over his case in the county where his lawsuit was filed when the supreme court
       has plainly held that litigants do not have a propriety interest in having their
       cases heard by a particular judge and Texas Rule of Civil Procedure 330(e)
       allows for cases to be transferred between judges in the same county?
II.    Whether the trial court erred when it considered Appellees’ Motion to Dismiss
       under Chapter 14 by submission when the plain language of the statute states
       that a hearing on such a motion is discretionary?
III.   Whether the procedural provisions contained in Chapter 14 may be
       constitutionally applied to federal civil rights claims proceeding in state court
       when application of Chapter 14 to federal claims has been judicially
       determined to be constitutional?
                             STATEMENT OF FACTS
       Gilbert has brought claims pursuant to 42 U.S.C. § 1983 and the Texas Tort

Claims Act against several TDCJ and University of Texas Medical Branch

(“UTMB”) employees. (See CR at 6-20). Gilbert’s claims arise from an alleged bus

accident in the Ramsey prison parking lot in 2006. (CR at 10). Specifically, Gilbert

claims he was injured when the bus driver suddenly halted the bus. (Id.). He further


                                           2
claims to have received inadequate medical treatment following the accident and

prison work assignments unsuitable to his physical condition. (CR at 11-12).

                       SUMMARY OF THE ARGUMENT
      Gilbert did not maintain a right to select which judge in Brazoria County

would preside over his lawsuit. The Texas Rules of Civil Procedure, as well as the

Texas Supreme Court, both refute the notion that a litigant may select which judge

in the county of their lawsuit’s filing will preside over a matter.

      Gilbert’s argument that the trial court improperly considered Appellees’

Motion to Dismiss under Chapter 14 by submission is unfounded. To the contrary,

section 14.003(c) expressly provides that the decision to hold a hearing is

discretionary. Additionally, Gilbert’s argument that a hearing by submission is

another form of alternative dispute resolution, and thus his consent was required

before the trial court could consider the motion by submission, is without merit.

      Finally, Gilbert’s suggestion that the procedural provisions of Chapter 14 do

not apply to federal civil rights claims filed in state court is without legal support.

Rather, the courts have plainly held that Chapter 14 is not pre-empted under the

Supremacy Clause and may therefore be constitutionally applied to federal claims

advanced in state court.




                                           3
                                   ARGUMENT
A.     Gilbert did not have a proprietary interest to select which judge would
       preside over his case in the county of filing.
       In his first point of error, Gilbert claims that Brazoria County and TDCJ

officials conspired together to deprive him of a favorable forum. (Appellant’s Br. at

5). More specifically, Gilbert alleges he addressed his Original Petition to the 23rd

Judicial District of Brazoria County; however, he claims TDCJ officials redirected

his legal mail to the 412th Judicial District of Brazoria County. (Id. at 4). Gilbert

states he never requested or agreed to have his lawsuit filed in the 412th Judicial

District. (Id. a 3).

       A party does not have a protected proprietary interest in having his case heard

by a particular judge or court within the county of filing. In re PG & E Reata Energy,

L.P., 4 S.W.3d 897, 901 (Tex. App.—Corpus Christi 1999); see also, In re Rio

Grande Valley Gas Co., 8 S.W.3d 303, 309 (Tex. 1999) (finding the same). In

accordance with Texas Rule of Civil Procedure 330(e), district courts having civil

jurisdiction in the same county may transfer cases and other proceedings from one

court to another. Tex. R. Civ. P. 330(e). As such, counties are at liberty to adopt

local rules for the transfer of cases from one district court to another within the

parameters established by Rule 330(e). Polk v. Sw. Crossing Homeowners Ass'n,

165 S.W.3d 89, 93 (Tex. App.—Houston [14th Dist.] 2005). A transfer may be




                                          4
made without a reason or formal order. European CrossCRds' Shopping Ctr., Ltd.

v. Criswell, 910 S.W.2d 45, 51 (Tex. App.—Dallas 1995).

      Gilbert maintains that his forum choice may not be disturbed. (Id. at 6). He

cites Gerdes v. Kennamer, 155 S.W.3d 523, 529 (Tex. App.—Corpus Christi 2004)

for the proposition that the trial court may not change his choice of forum because

his lawsuit was filed in accordance with the Texas venue rules. (Appellant’s Br. at

6). The Gerdes court, however, addressed this concept in terms of the county where

suit is filed. Gerdes, 155 S.W.3d at 529. Its holding does not give a litigant the

ability to choose which judge in the county of filing hears a particular matter. And

while Gilbert may initiate his lawsuit in the county of his choice, subject to Texas

venue provisions, Brazoria County was not obligated to give any particular

deference to his judge selection. In re PG & E Reata Energy, L.P., 4 S.W.3d at 309.

Pursuant to Rule 330(e), counties are given the ability to assign and transfer cases as

needed. Tex. R. Civ. P. 330(e). Accordingly, Gilbert maintains no right to proceed

in his lawsuit before who he deems to be a more favorable judge. In re Rio Grande

Valley Gas Co., 8 S.W.3d at 309. His first point of error is without merit.

B.    Gilbert did not have a right to attend a hearing on Appellees’ Motion to
      Dismiss under Chapter 14.

      Gilbert next contends that the trial court improperly considered Appellees’

Chapter 14 Motion to Dismiss by submission. (Appellant’s Br. at 14). To support

his position, Gilbert maintains that a hearing by submission is essentially an

                                          5
alternative dispute resolution process, which requires consent of the parties involved.

(Id.). Because he never consented to alternative dispute resolution, Gilbert claims

the court could not properly consider the dismissal motion by submission. (Id.).

      “[A]n inmate bringing a claim subject to Chapter 14 has no right to be heard

at a hearing upon a motion to dismiss his or her claims.” Hamilton v. Pechacek, 319

S.W.3d 801, 808 (Tex. App.—Ft. Worth 2010). Section 14.003(c) provides, in

pertinent part, that “in determining whether [to dismiss under section 14.003], the

court may hold a hearing.” Tex. Civ. Prac. & Rem. Code Ann. § 14.003(c) (West)

(emphasis added). The plain language of the statute demonstrates that a hearing on

a motion to dismiss under Chapter 14 is discretionary. Hamilton, 319 S.W.3d at

808; see also, Thomas v. Wichita Gen. Hosp., 952 S.W.2d 936, 938 (Tex. App.—Ft.

Worth 1997) (finding it was not mandatory that the trial court hold a hearing to

decide whether inmate’s suit should be dismissed under Chapter 14).

      In the instant matter, Appellees filed a motion to dismiss Gilbert’s claims

under Chapter 14. (CR 121). As they sought dismissal under Chapter 14, the trial

court was not required to hold a hearing on the motion. To the extent Gilbert argues

his consent was required for a hearing by submission, his objection is unfounded, as

the legislature left the decision of whether to hold a hearing in the sound discretion

of the trial court. See Tex. Civ. Prac. & Rem. Code Ann. § 14.003(c) (West).




                                          6
C.     Chapter 14 may be constitutionally applied to federal claims filed in
       state court.

       In his final point of error, Gilbert claims that a cause of action under section

1983 is not subject to the procedural provisions enumerated under Chapter 14, such

as the 31-day filing requirement, because application of state procedural devices to

a federal claim is unconstitutional.1 (Appellant’s Br. at 18-19). In support of his

argument, Gilbert cites Felder v. Casey, 487 U.S. 131 (1988), where the United

States Supreme Court held that a Wisconsin notice-of-claim statute conflicted with

the remedial objectives of section 1983 and was therefore pre-empted pursuant to

the Supremacy Clause. (Appellant’s Br. at 22).

       “States may apply their own neutral procedural rules to federal claims, unless

those rules are pre-empted by federal law.” Howlett By & Through Howlett v. Rose,

496 U.S. 356, 372 (1990). In doing so, the Texas legislature enacted Chapter 14,

which “merely imposes a neutral procedural requirement on pro se, indigent inmates

who file a civil claim in state court to enable the trial court to discern whether the

case is frivolous and the work of a nuisance litigator.” Thomas v. Wichita Gen.


1
  Gilbert’s second issue on appeal is resolved within this argument section. Gilbert claims that the
trial court erred when it did not allow him to file federal application to proceed in forma pauperis.
(Appellant’s Br. at 10-11). Gilbert sought to file the federal application as a substituted instrument
for his declaration of inability to pay costs. (Id.). Gilbert claims that by filing the federal
application, and thereby replacing his declaration of inability to pay costs, he would no longer be
subject to the 31-day filing requirement Chapter 14 imposes on pro se, indigent inmates proceeding
in state court. (Id.). As will be demonstrated, Gilbert’s arguments are misguided, as the procedural
mechanisms employed under Chapter 14 may be constitutionally applied to civil rights claims in
state court.
                                                  7
Hosp., 952 S.W.2d 936, 940 (Tex. App.—Ft. Worth 1997). Congress has similarly

passed the Prison Litigation Reform Act, which imposes substantially similar

requirements on pro se, indigent inmates proceeding in the federal courts. See 42

U.S.C. § 1997e (West); see also, Thomas v. Bush, 23 S.W.3d 215, 218 (Tex. App.—

Beaumont 2000) (discussing the similarities between the Prison Litigation Reform

Act and Chapter 14).      “Considering federal law imposes substantially similar

requirements on inmates litigating in forma pauperis, we conclude [Chapter 14]

do[es] not offend the Supremacy Clause.” Id.; see also, Hughes v. Massey, 65

S.W.3d 743, 745 (Tex. App.—Beaumont 2001) (finding the same).

      Gilbert cannot successfully challenge the constitutionality of Chapter 14

under these circumstances. Because he filed his section 1983 claim in state court,

he was subject to the procedural devices attendant to suits filed by pro se, indigent

inmates in accordance with Chapter 14. See Tex. Civ. Prac. & Rem. Code §

14.002(a). Gilbert would have been subject to substantially similar provisions had

he filed his claim in the federal courts. See e.g., 42 U.S.C. § 1997e (West) (requiring

inmates to exhaust administrative remedies prior to filing suit). For that reason,

Gilbert’s reliance on Felder is of little consequence, as Felder did not address a

situation where Congress had created a statute accomplishing the same goals as the

challenged state statute. See Thomas, 23 S.W.3d at 218 (discussing Chapter 14 and

the Prison Litigation Reform Act). As such, the Texas appellate courts have


                                          8
routinely upheld Chapter 14 in the context of supremacy clause challenges. See,

e.g., Thomas, 23 S.W.3d at 218; Williams v. Texas Dep't of Criminal Justice Inst.

Div., No. 14-01-00646-CV, 2002 WL 1822424, at *2 (Tex. App.—Houston [14th

Dist.] Aug. 8, 2002); Richard v. Dretke, No. 14-08-00714-CV, 2009 WL 909621, at

*4 (Tex. App.—Houston [14th Dist.] Apr. 7, 2009). Gilbert’s final point of error is

without merit.

                                 CONCLUSION

      For the foregoing reasons, the judgment of the trial court dismissing this

matter pursuant to Chapter 14 of the Texas Civil Practice and Remedies Code should

be affirmed.

                               Respectfully submitted,

                               KEN PAXTON
                               Attorney General of Texas

                               CHARLES E. ROY
                               First Assistant Attorney General

                               JAMES E. DAVIS
                               Deputy Attorney General for Defense Litigation

                               KAREN D. MATLOCK
                               Assistant Attorney General
                               Chief, Law Enforcement Defense Division




                                        9
/s/ Briana Webb
BRIANA WEBB
Assistant Attorney General
Attorney-In-Charge
Texas Bar No. 24077883
briana.webb@texasattorneygeneral.gov

P. O. Box 12548, Capitol Station
Austin, Texas 78711
Phone: (512) 463-2080
Fax: (512) 936-2109

/s/ Kyle Smith
KYLE SMITH
Assistant Attorney General
Attorney-In-Charge
Texas Bar No. 24086814
kyle.smith@texasattorneygeneral.gov

P. O. Box 12548, Capitol Station
Austin, Texas 78711
Phone: (512) 463-2080
Fax: (512) 936-2109

ATTORNEYS FOR APPELLEES




        10
                     NOTICE OF ELECTRONIC FILING
      I, Kyle Smith, Assistant Attorney General of Texas, certify that I have

electronically submitted for filing a true copy of the above in accordance with the

Electronic Case FilesXpressSystem of the First Court of Appeals of Texas, on this

the 9th day of February, 2015.

                                 /s/ Kyle Smith
                                 KYLE SMITH
                                 Assistant Attorney General




                      CERTIFICATE OF COMPLIANCE
      I, Kyle Smith, in accordance with Texas Rule of Appellate Procedure

9.4(i)(2)(E), certify that the foregoing document contains approximately 2,941

words. This calculation was made by the computer program used in preparing this

document.

                                 /s/ Kyle Smith
                                 KYLE SMITH
                                 Assistant Attorney General




                                         11
                         CERTIFICATE OF SERVICE
      I, Kyle Smith, Assistant Attorney General of Texas, do hereby certify that a

correct copy of the foregoing instrument has been served by placing the same in the

United States mail on 9th day of February, 2015, addressed to:

Gerald Gilbert
TDCJ No. 1236206
Ramsey Unit
1100 FM 655
Rosharon, Texas 77583

                               /s/ Kyle Smith
                               KYLE SMITH
                               Assistant Attorney General




                                        12
