Michael Atkinson v. TDCJ Parole Division ( 2021 )

Vacated and Dismissed and Memorandum Opinion filed June 24, 2021.
In The
Fourteenth Court of Appeals
NO. 14-20-00002-CV
MICHAEL ATKINSON, Appellant
V.
TDCJ PAROLE DIVISION, Appellee
On Appeal from the 333rd District Court
Harris County, Texas
Trial Court Cause No. 2019-85829
MEMORANDUM OPINION
The threshold question in this appeal is whether the pro se plaintiff, Michael
Atkinson, chose the correct court and legal vehicle for challenging a condition of his
mandatory supervision. Concluding that he did not, we vacate the civil district
court’s order denying habeas and injunctive relief, and we dismiss the case for want
of jurisdiction.
BACKGROUND
Atkinson pleaded guilty in the 458th Judicial District Court of Fort Bend
County to a single count of possession of child pornography. In exchange for that
guilty plea, he received a negotiated sentence of four years’ imprisonment.
Less than one year into his term of imprisonment, Atkinson was released on
mandatory supervision. As part of his release, Atkinson agreed to abide by certain
conditions imposed by the Texas Board of Pardons and Paroles, and one of those
conditions was that he would participate in the Sex Offender Treatment Program.
Under that program, Atkinson faced the potential of submitting to a polygraph
examination.
During the period of his mandatory supervision, Atkinson filed a pro se civil
case in the 333rd Judicial District Court of Harris County. His sole pleading in that
civil case was styled “Emergency Writ of Habeas Corpus for Injunction,” and it
sought to enjoin the Parole Division of the Texas Department of Criminal Justice
(the “State”) from administering an “instant offense” polygraph. Atkinson alleged
that this sort of polygraph violated his constitutional rights, that it served no
rehabilitative purpose, and that the State should only be allowed to administer a
“maintenance” polygraph to verify that he was adhering to his parole guidelines. In
addition to seeking habeas and injunctive relief, Atkinson also requested a temporary
restraining order, which an ancillary judge granted ex parte.
The State responded with a plea to the jurisdiction. The State argued that
Atkinson was challenging his confinement, and that the proper vehicle for such a
challenge was an application for writ of habeas corpus under Article 11.07 of the
Texas Code of Criminal Procedure. Because that article requires the application to
be assigned to the convicting court and made returnable to the Texas Court of
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Criminal Appeals, the State further argued that the civil district court had no
jurisdiction to rule on Atkinson’s requested relief.
The civil district court conducted a live hearing, where both parties were
present. The hearing was not transcribed, and afterwards, the civil district court
signed a written order denying the State’s plea, vacating the temporary restraining
order, and denying all of Atkinson’s requested relief. Atkinson now appeals from
this written order.
ANALYSIS
Atkinson has filed a pro se brief, complaining of the civil district court’s ruling
on the merits. The State has also filed a brief, arguing that the civil district court
erred by denying the plea to the jurisdiction, or alternatively, that it made the correct
ruling on the merits. Because we are duty-bound to determine questions of
jurisdiction, we begin by addressing the State’s argument that the civil district court
should have dismissed the case from the outset. See In re City of Dallas, 501 S.W.3d
71, 73 (Tex. 2016) (orig. proceeding) (per curiam).
In its written order, the civil district court gave the following explanation for
denying the State’s plea: “Because [Atkinson] does not challenge his conviction or
the constitutionality of a criminal statute, jurisdiction of this matter is not controlled
by Tex. Code Crim. Proc. Art. 11.07, and does not lie exclusively in criminal court.
See Passel v. Fort Worth I.S.D., 440 S.W.2d 61 (Tex. 1969).” This explanation is
incorrect.
Passel recognizes that a civil court may enjoin an unconstitutional criminal
statute if no prosecution has been threatened yet and the plaintiff has no other way
to challenge the statute except by an administrative or civil action. Id. at 64. That
rule does not apply here because Atkinson has already been prosecuted. See also
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Reese v. City of Hunter’s Creek Village, 95 S.W.3d 389, 391–92 (Tex. App.—
Houston [1st Dist.] 2002, pet. denied) (noting that Passel has been limited by
subsequent decisions). Furthermore, Atkinson is not challenging a criminal statute,
but rather a condition of his mandatory supervision, and Article 11.07 provides a
vehicle for that challenge.
Under Article 11.07, a person may obtain habeas relief from a final felony
conviction by challenging either the fact or length of his confinement. See Ex parte
Harrington, 310 S.W.3d 452, 456 (Tex. Crim. App. 2010). “Confinement means
confinement for any offense or any collateral consequence resulting from the
conviction that is the basis of the instant habeas corpus.” Tex. Code Crim. Proc. art.
11.07, § 3(c).
Though Atkinson has been released from imprisonment, he is still “confined”
by the conditions of his mandatory supervision and by the collateral consequences
of his final conviction. See Ex parte Fulce, 993 S.W.2d 660, 661 n.1 (Tex. Crim.
App. 1999); see also Tex. Gov’t Code § 508.147(b) (“An inmate released to
mandatory supervision is considered to be released on parole.”); 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) (orig. proceeding) (per curiam) (“Parole is a form of restraint
which allows an applicant to pursue the remedies afforded under Article 11.07,
V.A.C.C.P.”). Atkinson has also challenged that confinement by arguing that the
administration of an “instant offense” polygraph would amount to a violation of his
constitutional rights.
The exclusive vehicle for raising this challenge is an application for writ of
habeas corpus under Article 11.07. See Tex. Code Crim. Proc. art. 11.07, § 5 (“After
conviction the procedure outlined in this Act shall be exclusive and any other
proceeding shall be void and of no force and effect in discharging the prisoner.”).
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And as the State argued in its plea to the jurisdiction, that application must have been
assigned to the convicting criminal court and made returnable to the Texas Court of
Criminal Appeals. See Tex. Code Crim. Proc. art. 11.07, § 3(a)–(b). Because
Atkinson filed his case in the civil district court instead, we conclude that the civil
district court had no jurisdiction and that it should have granted the State’s plea to
the jurisdiction. See Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex.
Crim. App. 1991) (orig. proceeding) (holding that the court of appeals had no
jurisdiction to rule on an original mandamus petition when an adequate remedy was
available through Article 11.07).
In light of this conclusion, we need not reach the merits of Atkinson’s appeal.
CONCLUSION
The civil district court’s order denying habeas and injunctive relief is vacated,
and the case is dismissed for want of jurisdiction.
/s/ Tracy Christopher
Chief Justice
Panel consists of Chief Justice Christopher and Justices Wise and Hassan.
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