                                                                                                    ACCEPTED
                                                                                                03-16-00259-CV
                                                                                                      13047938
                                                                                     THIRD COURT OF APPEALS
                                                                                                AUSTIN, TEXAS
                                                                                          10/4/2016 11:45:25 AM
                                                                                              JEFFREY D. KYLE
                                                                                                         CLERK
                                    NO. 03-16-00259-CV

                                   In the Court of Appeals                  FILED IN
                                                                     3rd COURT OF APPEALS
                  For the Third Supreme Judicial District of        TexasAUSTIN, TEXAS
                                                                     10/4/2016 3:16:25 PM
                                       Austin, Texas                   JEFFREY D. KYLE
                                                                             Clerk

                              JAMES BOONE
                                                  Plaintiff-Appellant

                                             v.

                      DAVID GUTIERREZ, CHAIRMAN,
                  TEXAS BOARD OF PARDONS AND PAROLES
                                     Defendant-Appellee

                 On Appeal from the 201ST Judicial District Court
                                   of Travis County Texas.

                                   BRIEF OF APPELLEE
KEN PAXTON                                                        KAREN D. MATLOCK
Attorney General of Texas                          Chief, Law Enforcement Defense Division

JEFFREY C. MATEER                                                   CAROL M. GARCIA*
First Assistant Attorney General                                  Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

JAMES E. DAVIS                                               P.O. Box 12548, Capitol Station
Deputy Attorney General for                                             Austin, Texas 78711
Civil Litigation                                                             (512) 463-2080
                                                                             (512) 936-2109



                  ATTORNEYS FOR DEFENDANT-APPELLEE
                           *Attorney of Record
                         Oral Argument Waived



                                              i
                 CERTIFICATE OF INTERESTED PERSONS
      The undersigned counsel of record certifies that the following listed persons

and entities as described in Rule 38.1(a) of the Texas Rules of Appellate Procedure

have an interest in the outcome of this case. These representations are made in order

that the judges of this court may evaluate possible disqualification or recusal.


   A. Parties

             Plaintiff-Appellant:      James Boone, TDCJ-ID# 658981
                                       Ellis Unit
                                       1697 FM 980
                                       Huntsville, Texas 77343
                                       Pro Se

             Defendant-Appellee:       David Gutierrez, Presiding Chair,
                                       Texas Board of Pardons and Paroles
                                       Attn: Bettie Wells, General Counsel
                                       Price Daniel, Sr. Bldg.
                                       209 West 14th St., Suite 500
                                       Austin, Texas

   B. Attorneys

             For Appellant:            James Boone, TDCJ-ID# 658981
                                       Ellis Unit
                                       1697 FM 980
                                       Huntsville, Texas 77343
                                       Pro Se


             For Appellee:       Carol M. Garcia, Assistant Attorney General
                                 Office of the Attorney General, State of Texas
                                 Law Enforcement Defense Division
                                 P.O. Box 12548, Capitol Station
                                 Austin, Texas 78711


                                          ii
/s/ Carol M. Garcia
CAROL M. GARCIA
Assistant Attorney General




  iii
                                         TABLE OF CONTENTS

                                                                                                         PAGE No.

CERTIFICATE OF INTERESTED PERSONS .................................................. ii

TABLE OF CONTENTS .......................................................................................iv

INDEX OF AUTHORITIES .................................................................................. v

STATEMENT OF THE CASE ............................................................................... 2

ISSUES PRESENTED ............................................................................................. 3

SUMMARY OF THE ARGUMENT ..................................................................... 3

STANDARD OF REVIEW ..................................................................................... 3

ARGUMENT ............................................................................................................ 4

Reply to Issues One-Four: The district court properly granted appellee’s
     Motion to Dismiss Baseless Cause of Action ........................................ ........4


PRAYER ..................................................................................................................6

NOTICE OF ELECTRONIC FILING .................................................................. 8

CERTIFICATE OF SERVICE .............................................................................. 8

CERTIFICATE OF COMPLIANCE ................................................................... 9




                                                           iv
                                      INDEX OF AUTHORITIES




Cases
Johnson v. Rodriguez,
  110 F.3d 299 (5th Cir. 1997) ..................................................................................6

Koenig v. Blaylock,
 No. 03-15-00705-CV, slip op. at 3-4, 2016 WL 3610950 (Tex. App.—Austin,
 July 01, 2016, no pet. h.).........................................................................................5

Madison v. Parker,
 104 F.3d 765, 768 (5th Cir. 1997) ..........................................................................6

Orellana v. Kyle,
 65 F.3d 28, 31-31 (5th Cir. 1995) ...........................................................................6

Wooley v. Schaffer,
 447 S.W.3d 71, 76 (Tex. Civ. App.—Houston [14th Dist.] 2014).........................4


Statutes
Texas Constitution Article 1, Section 19 ...................................................................2


Rules

Tex. R. Civ. P. 91a.3 ..................................................................................................4

Tex. R. Civ. P. 91a.6 ..................................................................................................4




                                                           v
                              NO. 03-16-00259-CV

                             In the Court of Appeals

               For the Third Supreme Judicial District of Texas

                                  Austin, Texas

                         JAMES BOONE
                                              Plaintiff-Appellant,

                                         v.

                    DAVID GUTIERREZ, CHAIRMAN,
                TEXAS BOARD OF PARDONS AND PAROLES
                                   Defendant-Appellee

               On Appeal from the 201ST Judicial District Court
                             of Travis County Texas.


                             BRIEF OF APPELLEE




TO THE HONORABLE JUDGES OF THE THIRD COURT OF APPEALS:

      NOW COMES David Gutierrez, Presiding Chair, Texas Board of Pardons and

Paroles (TBPP) by and through his counsel, the Attorney General of Texas, and

submits this his Appellee’s Brief in response to the brief filed by appellant, James

Boone.




                                         1
                                           I

                             STATEMENT OF THE CASE

       Appellant James Boone is an offender currently incarcerated at the Ellis Unit

within the Texas Department of Criminal Justice, Walker County, Texas.

Proceeding pro se and informa pauperis, plaintiff filed his Original Due Process of

Law Complaint Pursuant to United States Constitution Amendment Fourteen; Texas

Constitution Article 1, Section 19 on December 29, 2015.1 David Gutierrez is the

presiding officer of the TBPP, a state agency.2 Appellee filed his Motion to Dismiss

Plaintiff’s Baseless Cause of Action on February 02, 2016.3 Appellant Boone is

seeking relief in the form of requiring the District Court to require the TBPP to

reverse its prior decision and grant appellant parole or to require the TBPP to provide

a special review hearing for appellant, considering him for parole release.4


       On March 04, 2016, via telephone conference, the Honorable Amy Clark

Meacham of the 201st Judicial District Court, Travis County, Texas heard appellee

Gutierrez’ Motion to Dismiss Plaintiff’s Baseless Cause of Action.5 The District

Court subsequently granted appellee’s motion on April 04, 2016.6 Appellant filed



1
  Clerk’s Record, Vol. 1, Pgs. 04-29.
2
  Clerk’s Record, Vol. 1, Pg. 42.
3
  Clerk’s Record, Vol. 1, Pgs. 42-45.
4
  Clerk’s Record, Vol. 1, Pg. 13-14.
5
  Reporter’s Record, Vol. 1. Pgs. 01-12.
6
  Clerk’s Record, Vol. 1, Pg. 70.
                                           2
his Notice of Appeal on May 12, 2016.7 Appellant’s brief was received and filed by

this Court on April 21, 2016.


                                             II

                                 ISSUES PRESENTED

       Reply to Issues One-Four: The district court properly granted
       appellee’s Motion to Dismiss Plaintiff’s Baseless Cause of Action.

                                             III
                         SUMMARY OF THE ARGUMENT
    1. The 45-day deadline in TRCP91a is directory, rather than mandatory,
       thus offering the District Court the ability to consider the motion in
       keeping with the prompt dismissal of baseless causes of action.

    2. The district court properly granted appellee’s because appellant’s
       lawsuit, founded on the principle that he has a liberty interest in being
       released on parole, has no basis in law.

    3. It has long been recognized that Texas law does not create a liberty
       interest in parole that is protected by the Due Process Clause, and Texas
       prisoners have no constitutional expectancy of release on parole.
                                             IV
                              STANDARD OF REVIEW
       Pursuant to Tex. R. Civ. P. 91a, a trial court may dismiss a cause of action

that (1) has no basis in law, (2) no basis in fact, or (3) on both of these grounds. Tex.

R. Civ. P. 91a.1.8 In deciding such a motion, a trial court may not consider evidence


7
 Clerk’s Record, Vol. 1, Pgs. 84-85.
8
 Appellant’s cause of action is not governed by Chapter 14 of the Texas Civil Practice and
Remedies Code because parole issues are not governed by the Texas Department of Criminal
Justice grievance process.
                                              3
and must decide the motion solely on a review of the content within the four corners

of the live pleading, including the attachments thereto.9 The determination of

whether a cause of action has any basis in law and in fact are legal questions that are

reviewed de novo.10


                                              V
                                      ARGUMENT
       Reply to Issues One-Four: The district court properly granted
       appellee’s Motion to Dismiss Plaintiff’s Baseless Cause of Action.


                               Argument and Authorities

       As stated previously, appellee Gutierrez’ Motion to Dismiss Plaintiff’s

Baseless Cause of Action was heard via a telephonic hearing on March 04, 2016.11

An Order granting the motion was issued on April 04, 2016.12 Appellant Boone

argues that the District Court failed to meet the requisites of Texas Rule of Civil

Procedure 91a.3 by failing to issue its Order by March 17, 2016.13 According to

TRCP 91a.3(c), the motion to dismiss must be granted or denied within 45 days after

the motion is filed.14 However, this Court very recently held that the “45-day period




9
  Tex. R. Civ. P. 91a.6.
10
   Wooley v. Schaffer, 447 S.W.3d 71, 76 (Tex. Civ. App.—Houston [14th Dist.] 2014).
11
   Reporter’s Record, Vol. 1, Pgs. 01-12.
12
   Clerk’s Record, Vol. 1, Pg. 70.
13
   Appellant’s Brief, pg. 10.
14
   Tex. R. Civ. P. 91a.3.
                                              4
during which a court ‘shall’ deny or grant a Rule 91a motion to dismiss is merely

directory rather than mandatory.”15


      In the absence of any ‘words restraining’ action by the trial court
      beyond the time limit and the outlining of any consequences for failure
      to act therein, it is more reasonable to conclude that the time limit in
      this relatively new rule is not a hard deadline that prohibits the court
      from considering the substance of the motion to dismiss after the
      expiration of the 45-day time period but, rather, a provision included in
      the rule to promote the orderly and prompt dismissal of baseless causes
      of action.16
In this instance, while the hearing was held within the 45 day deadline, the District

Court took additional time to review the case prior to making its ruling shortly on

April 04, 2016.


      As to the substance of the appeal, appellant Boone writes that appellee’s

failure to grant him parole release, or at the least, a special parole review, is

unconstitutional based on the fact that he “has only had one (1) major disciplinary

infraction (during 23 years of incarceration)”17 and in light of his light of

accomplishments.18 However, it has long been recognized that Texas law does not

create a liberty interest in parole that is protected by the Due Process Clause, and




15
   Koenig v. Blaylock, No. 03-15-00705-CV, slip op. at 3-4, 2016 WL 3610950 (Tex. App.—
Austin, July 01, 2016, no pet. h.).
16
   Id., at 3.
17
   Clerk’s Record, Vol. 1, Pg. 10.
18
   Clerk’s Record, Vol. 1, Pg. 13.
                                            5
Texas prisoners have no constitutional expectancy of release on parole.19 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.”20


          Appellant Boone has the mistaken belief that he has a constitutionally

protected liberty interest in parole. Consequently, the trial court did not err when it

granted appellant Gutierrez’ Motion to Dismiss Plaintiff’s Baseless Cause of Action

and its judgment must be affirmed.


                                           VI
                                      PRAYER
          In light of the foregoing, appellee David Gutierrez respectfully asks the court

to affirm the trial court’s judgment granting appellee’s Motion to Dismiss Plaintiff’s

Baseless Cause of Action.


                                            Respectfully submitted,
                                            KEN PAXTON
                                            Attorney General of Texas

                                            JEFFREY C. MATEER
                                            First Assistant Attorney General




19
   See Orellana v. Kyle, 65 F.3d 28, 31-32 (5th Cir. 1995); Madison v. Parker, 104 F.3d 765, 768
     th
(5 Cir. 1997).
20
   Johnson v. Rodriguez, 110 F.3d 299, 308 (5th Cir. 1997).
                                                6
BRANTLEY STARR
Deputy First Assistant Attorney
General

JAMES E. DAVIS
Deputy Attorney General for Civil
Litigation

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

CAROL M. GARCIA
CAROL M. GARCIA
Assistant Attorney General
Law Enforcement Defense Division
Attorney in Charge
State Bar No. 07631680
carol.garcia@texasattorneygeneral.gov

P. O. Box 12548, Capitol Station
Austin, Texas 78711
Phone: (512) 463-2080
Fax No: (512) 936-2109

ATTORNEYS FOR DEFENDANT-
APPELLEE




  7
                      NOTICE OF ELECTRONIC FILING

      I, CAROL M. GARCIA, Assistant General of Texas, certify that I have

electronically submitted for filing, a true and correct copy of the above and foregoing

Appellee’s Brief in accordance with the Electronic Case Files System of the Third

Court of Appeals, on the 04th day of October 2016.


                                        /s/ CAROL M. GARCIA
                                        CAROL M. GARCIA
                                        Assistant Attorney General


                          CERTIFICATE OF SERVICE

      I, CAROL M. GARCIA, Assistant Attorney General of Texas, certify that a

true and correct copy of the above and foregoing Appellee’s Brief has been served

by placing same in the United States Mail on this 04th day of October 2016,

addressed to:


James Boone, TDCJ-ID# 658981
Ellis Unit
1697 FM 980
Huntsville, Texas 77343
Appellant Pro Se


                                        /s/ CAROL M. GARCIA
                                        CAROL M. GARCIA
                                        Assistant Attorney General



                                          8
                   CERTIFICATE OF COMPLIANCE
                With Type-Limitation, Typeface Requirements,
                        and Type Style Requirements

1.   This brief complies with the type-volume limitation of Fed. R. App. P.
     32(a)(7)(B) because:

     [X] this brief contains 1155 words, excluding the parts of the brief
     exempted by Fed. R. App.P.32 (a) (7) (B) (iii), or

     [ ] this brief uses a monospaced typeface and contains [state the number
     of] lines of text, including the parts of the brief exempted by Fed. R. App.P.
     32(z) (7) (B) (iii).

2.   This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)
     (5) and the type style requirements of Fed. R. App. P. 32(a)(6) because:

     [X] this brief has been prepared in a proportionally spaced typeface using
     MS Word for Window, version 2010 in Times Roman 14-point type face, or

     [ ] this brief has been prepared in a monospaced typeface using [state name
     and version of work processing program] with [state number of characters per
     inch and name of type style].


                                            /s/ Carol M. Garcia
                                            CAROL M. GARCIA

                                            COUNSEL FOR DEFENDANT-
                                            APPELLEE


     October 4, 2016




                                        9
