                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-10-00435-CV


ANTHONY D. JOHNSON                                                     APPELLANT

                                         V.

RICK THALER, DIRECTOR, TEXAS                                            APPELLEE
DEPARTMENT OF CRIMINAL
JUSTICE, INSTITUTIONAL
DIVISION


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          FROM THE 89TH DISTRICT COURT OF WICHITA COUNTY

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                         MEMORANDUM OPINION1
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                                   I. Introduction

      In one issue, Appellant Anthony D. Johnson contends in this pro se appeal

that the trial court abused its discretion by dismissing his claims. We affirm.




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       See Tex. R. App. P. 47.4.
                      II. Factual and Procedural Background

       Johnson, a Texas Department of Criminal Justice (TDCJ) inmate in Iowa

Park, Texas, filed a pro se civil lawsuit in the 89th District Court of Wichita

County against Rick Thaler, Director of the TDCJ Institutional Division. In his

petition, Johnson stated that he was convicted of aggravated robbery and

aggravated assault in the 291st District Court of Dallas County. He alleged that

his sentence and release and parole dates were improper because the police

report and the judgment did not include a deadly weapon finding,2 making his

sentence and continued detention illegal and in violation of his rights under the

United States and Texas Constitutions. Johnson then asked the 89th district

court to ―order the illegal Deadly Weapon Findings [t]o be deleted from his

Judgement and sentence and his T.D.C.J. ID Record to be adjusted to show his

parole date and release date‖; he also requested damages. The record does not

contain a copy of the 291st district court’s judgment of conviction and sentence.

       The 89th district court dismissed Johnson’s suit after stating that it had

reviewed the pleadings on its own motion and found under chapter fourteen of

the civil practice and remedies code that Johnson’s ―realistic chance of ultimate

success‖ was slight. Thaler then filed his answer and a motion to dismiss for lack

of jurisdiction, and the trial court granted Thaler’s motion.

                                    III. Discussion

       Johnson argues that the trial court abused its discretion by dismissing his

claims as frivolous, and he complains that he is suffering a ―continuing violation‖

of his civil rights due to ―an unconstitutional restraint‖ of his liberty.

       2
        In his petition, Johnson complains both that a deadly weapon finding was
not included in the judgment and that it was.

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      Under chapter fourteen of the civil practice and remedies code, a trial court

may dismiss an inmate’s lawsuit that is malicious or frivolous. See Tex. Civ.

Prac. & Rem. Code Ann. § 14.003 (Vernon 2010); Leachman v. Dretke, 261

S.W.3d 297, 303 (Tex. App.—Fort Worth 2008, no pet.) (op. on reh’g).             We

review a chapter fourteen dismissal to determine whether the trial court abused

its discretion; in other words, we must decide whether the trial court’s act was

arbitrary or unreasonable. Leachman, 261 S.W.3d at 303–04 (citing Downer v.

Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985), cert. denied,

476 U.S. 1159 (1986)). We review subject matter jurisdiction, which may be

challenged at any time, de novo. See Scott v. Wichita County, 248 S.W.3d 324,

326 (Tex. App.—Houston [1st Dist.] 2007, no pet.); see also Thompson v.

Aliseda, No. 13-08-00417-CV, 2009 WL 200994, at *3 (Tex. App.—Corpus

Christi Jan. 29, 2009, pet. denied) (mem. op.) (holding that the trial court did not

abuse its discretion by dismissing inmate’s claims for lack of subject matter

jurisdiction when a writ of habeas corpus is the exclusive remedy for challenging

the duration of incarceration).

      Although Johnson argues that ―[t]his is a civil action and not habeas

corpus,‖ we note that ―[t]he writ of habeas corpus is the remedy to be used when

any person is restrained [of] his liberty.‖ See Tex. Code Crim. Proc. Ann. art.

11.01 (Vernon 2010). After a final conviction in a non-death-penalty felony case,

an application for writ of habeas corpus must be filed with the clerk of the court in

which the conviction being challenged was obtained; the writ must be made

returnable to the court of criminal appeals. Id. art. 11.07, § 3(a), (b) (Vernon

2010).   The procedure set forth in article 11.07 is exclusive, and any other

proceeding is void and of no force and effect in discharging the inmate. Id. art.


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11.07, § 5; see Hoang v. State, 872 S.W.2d 694, 697 (Tex. Crim. App. 1993)

(stating that the court of criminal appeals alone has authority to release from

confinement persons who have been finally convicted of noncapital felonies),

cert. denied, 513 U.S. 863 (1994); see also Bd. of Pardons & Paroles ex rel.

Keene v. Court of Appeals for the Eighth Dist., 910 S.W.2d 481, 483 (Tex. Crim.

App. 1995) (―Jurisdiction to grant post conviction habeas corpus relief on a final

felony conviction rests exclusively with this Court.‖).

      Further, in his original petition, Johnson prayed not only for the trial court to

delete the deadly weapon finding from his judgment and sentence and to adjust

his parole and release dates but also for the trial court to ―grant any and all

Damages it see’s [sic] that Plaintiff is entitled Too [sic]‖ based on the federal and

state civil rights violations that he alleged. However, Texas does not have an

implied private right of action for damages for constitutional violations, and it has

no statute comparable to 42 U.S.C. § 1983. See City of Beaumont v. Bouillion,

896 S.W.2d 143, 147 (Tex. 1995). And a civil tort action for violation of federal

constitutional rights is not an appropriate vehicle ―for challenging the validity of

outstanding criminal judgments,‖ which is essentially the basis of Johnson’s

complaint here, although he does not explicitly state that his federal constitutional

claims are brought under § 1983. See Heck v. Humphrey, 512 U.S. 477, 486–

87, 114 S. Ct. 2364, 2372 (1994) (holding that to recover damages for an

allegedly unconstitutional imprisonment, or for other harm caused by actions

whose unlawfulness would render a conviction or sentence invalid, a § 1983

plaintiff must prove that the conviction or sentence has been reversed on direct

appeal, expunged by executive order, declared invalid by a state tribunal

authorized to make such determination, or called into question by a federal


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court’s issuance of a writ of habeas corpus); see also Edwards v. Balisok, 520

U.S. 641, 648, 117 S. Ct. 1584, 1589 (1997) (prohibiting prisoner’s § 1983 claim

for damages based on deprivation of good-time credit when prisoner failed to

show his punishment had been invalidated under Heck); Littles v. Bd. of Pardons

& Paroles Div., 68 F.3d 122, 123 (5th Cir. 1995) (applying Heck to parole

proceedings).

      In his petition, Johnson challenged the legality of his detention in the wrong

court using the wrong vehicle. See Tex. Code Crim. Proc. Ann. arts. 11.01,

11.07. And it is axiomatic that if a court does not have jurisdiction over a claim,

then the claim’s chance of ultimate success is nonexistent. See Tex. Civ. Prac.

& Rem. Code Ann. § 14.003(a)(2), (b)(1). Because Johnson’s lawsuit seeks

habeas corpus relief and because the trial court lacked subject matter jurisdiction

to consider it, the trial court did not abuse its discretion by entering either of its

dismissal orders. We overrule Johnson’s sole issue.

                                  IV. Conclusion

      Having overruled Johnson’s sole issue, we affirm the trial court’s judgment.




                                                    BOB MCCOY
                                                    JUSTICE

PANEL: GARDNER, WALKER, and MCCOY, JJ.

DELIVERED: May 12, 2011




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