       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 (Athe 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) (Asection 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




        1
           Rome also asserted that his constitutional rights were violated by the loss of his Agood-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.




                                                       2
                 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.CAustin 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


                                                       3
                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

Aaddress [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




                                                     4
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 Apersons@ 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.CHouston [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.




        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.




                                                      5
                 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


        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).

                                                        6
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 issues5 and affirm the trial court=s judgment.




                                                 __________________________________________

                                                 David Puryear, Justice

Before Justices Kidd, Patterson and Puryear

Affirmed

Filed: October 31, 2002

Do Not Publish




        5
          To the extent we were unable to discern the nature of Rome=s complaints regarding Agood-time@
credit and sex offender registration, those issues are overruled.

                                                     7
