Timothy Hays v. Chief Campos ( 2015 )


Menu:
  •                                                                                         ACCEPTED
    13-15-00216-CV
    THIRTEENTH COURT OF APPEALS
    CORPUS CHRISTI, TEXAS
    7/27/2015 10:12:02 AM
    CECILE FOY GSANGER
    CLERK
    CAUSE NO. 13-15-00216-CV
    ___________________________________
    FILED IN
    13th COURT OF APPEALS
    IN THE COURT OF APPEALS
    CORPUS CHRISTI/EDINBURG, TEXAS
    THIRTEENTH DISTRICT OF TEXAS 7/27/2015 10:12:02 AM
    AT CORPUS CHRISTI - EDINBURG  CECILE FOY GSANGER
    ___________________________________ Clerk
    TIMOTHY HAYS v. CHIEF CAMPOS, ET AL
    __________________________________________________________________
    Appeal from the District Court, 135th Judicial District,
    DeWitt County, Texas
    Cause Number 15-02-23,318
    __________________________________________________________________
    BRIEF OF APPELLEE,
    DEWITT COUNTY, TEXAS DISTRICT ATTORNEY
    MICHAEL SHEPPARD
    __________________________________________________________________
    CULLEN, CARSNER, SEERDEN & CULLEN, L.L.P.
    Casey T. Cullen
    State Bar No. 24073121
    Ann LaMantia Cullen
    State Bar No. 24078818
    P. O. Box 2938
    Victoria, Texas 77902
    Tel: (361) 573-6318
    Fax: (361) 573-2603
    Attorneys for Appellee, DeWitt County, Texas District Attorney Michael Sheppard
    I.
    IDENTITY OF PARTIES AND COUNSEL
    Parties before the Trial Court:
    Appellant: Timothy Hays
    Appellees: DeWitt County, Texas District Attorney Michael Sheppard
    City of Yorktown, Texas Chief of Police Paul Campos
    City of Yorktown, Texas Police Department Sergeant Ernesto Garcia, Jr.
    Trial and Appellate Counsel for Appellant:
    Pro Se
    Trial and Appellate Counsel for Appellee DeWitt County, Texas District Attorney
    Michael Sheppard:
    Casey T. Cullen
    Ann LaMantia Cullen
    Cullen, Carsner, Seerden & Cullen
    119 S. Main St.
    P.O. Box 2938
    Victoria, TX 77901
    Trial and Appellate Counsel for Appellees City of Yorktown, Texas Chief of
    Police Paul Campos and City of Yorktown, Texas Police Department Sergeant
    Ernesto Garcia:
    Charles S. Frigerio
    Hector X. Saenz
    Law Offices of Charles S. Frigerio, P.C.
    Riverview Towers
    111 Soledad, Suite 840
    San Antonio, TX 78205
    i
    II.
    TABLE OF CONTENTS
    I.        IDENTITY OF PARTIES AND COUNSEL ................................................. i
    II.       TABLE OF CONTENTS ............................................................................... ii
    III.      INDEX OF AUTHORITIES ........................................................................ iv
    IV.       STATEMENT OF THE CASE/STATEMENT OF FACTS .......................... 1
    V.        STATEMENT ON ORAL ARGUMENT……….….……………… ...……..3
    VI.       STATEMENT OF THE ISSUES .................................................................... 4
    A. Whether the trial court had jurisdiction over Appellant’s claims.
    B. Whether the trial court abused its discretion in its denying of Appellant’s
    Motion for Bench Warrant.
    VII. SUMMARY OF THE ARGUMENT ............................................................. 5
    VIII. ARGUMENT .................................................................................................11
    A. All statements in Appellant’s Brief which are neither supported by or
    reference the record or legal authority should be struck and/or
    disregarded…………………………………………………………….. 11
    B. The Trial Court did not have jurisdiction over Appellant’s claims.
    1. Standard of review............................................................................... 11
    2. Appellant’s burden of pleading jurisdiction ........................................ 12
    3. Appellee DeWitt County District Attorney Michael Sheppard
    was entitled to absolute prosecutorial immunity and, as such,
    the trial court lacked jurisdiction ........................................................ 12
    ii
    4. Alternatively, Appellee DeWitt County District Attorney
    Michael Sheppard is entitled to sovereign/governmental
    immunity and, as such, the trial court lacked jurisdiction ................ 15
    a. Appellant’s Theft, Conversion and Fraud Claims……………….15
    b. Appellant’s RICO Claim…………………………………………18
    5. Alternatively, Appellant failed to provide adequate notice
    pursuant to the Texas Tort Claims Act and, as such, the trial
    court lacked jurisdiction ..................................................................... 19
    C. The Trial Court did not abuse its discretion in denying Appellant’s
    Motion for Bench Warrant.
    1. Standard of Review .............................................................................20
    2. The trial court did not abuse its discretion in denying Plaintiff’s
    Motion for Bench Warrant ……………………………… ..........………21
    IX.   PRAYER…………………………………………………………………. .. 24
    X.    CERTIFICATE OF COMPLIANCE……………………….. ..……………25
    XI.   CERTIFICATE OF SERVICE…………………………………………... .. 25
    iii
    III.
    INDEX OF AUTHORITIES
    Cases:
    Bland Indep. Sch. Dist. v. Blue,
    
    34 S.W.3d 547
    (Tex. 2000).....……………………………………………..11
    Buchanan v. Cooley,
    No. 11-11-00129-CV, 
    2012 WL 760872
    (Tex.App.—Eastland 2012, pet.
    denied)…….………………………………………..………………5, 6, 7, 14
    Charleston v. Pate,
    
    194 S.W.3d 89
    (Tex.App.—Texarkana 2006, no pet.).…….……….6, 12, 14
    Chaz Constr., LLC v. Codell,
    137 Fed. Appx. 735 (6th Cir. 2005) (not designated for publication) …….18
    Clawson v. Wharton Cnty.,
    
    941 S.W.2d 267
    (Tex.App.—Corpus Christi 1996, writ denied) ….……...13
    Concho Residential Servs., Inc. v. MHMR Servs. for Concho Valley,
    No. 03–9800022–CV, 
    1999 WL 644727
    (Tex.App.—Austin 1999, pet.
    denied)…..………………………………………..……….……………..7, 18
    Dallas Area Rapid Transit v. Whitley,
    
    104 S.W.3d 540
    (Tex. 2003)….….……………………………………........5
    Dallas County Mental Health & Mental Retardation v. Bossely,
    
    968 S.W.2d 339
    (Tex. 1998) ……………………….……………………...17
    Downer v. Aquamarine Operators, Inc.,
    
    701 S.W.2d 238
    (Tex.1985) ………………………………………..……...21
    Franka v. Velasquez,
    
    332 S.W.3d 367
    (Tex. 2011) …………………………………..……....15, 16
    Goodman v. Harris County,
    
    571 F.3d 388
    (5th Cir. 2009)..……….…………………………………16, 20
    iv
    Hafer v. Melo,
    
    502 U.S. 21
    (1991).………………………………………………….…16, 20
    Hudson v. Palmer,
    
    468 U.S. 517
    , 
    104 S. Ct. 3194
    , 
    82 L. Ed. 2d 393
    (1984).…………………...21
    Imbler v. Pachtman,
    
    424 U.S. 409
    (1976)…………………………………………..…6, 12, 13, 14
    In re K.G.S.,
    No. 14-12-00673-CV, 
    2014 WL 801127
    (Tex.App.—Houston [14th Dist.]
    2014, no pet.)…………..…..………………………………………...…..7, 18
    In re Z.L.T., J.K.H.T., and Z.N.T.,
    
    124 S.W.3d 163
    (Tex.2003)……………………………7, 8, 9, 10, 20, 21, 22
    Jackson v. Neal,
    No. 13-07-00164-CV, 
    2009 WL 140507
    (Tex.App.—Corpus Christi 2009,
    no pet.)….………………………………………………………………21, 22
    Kentucky v. Graham,
    
    473 U.S. 159
    (1985).…………………………………………………….....16
    Lamar Univ. v. Doe,
    
    971 S.W.2d 191
    (Tex.App.—Beaumont 1998, no pet.)…………………...17
    Lesher v. Coyel,
    
    435 S.W.3d 423
    , 430 (Tex.App.—Dallas 2014, reh'g overruled (July 29,
    2014))………………………………………………………….…………...12
    Monell v. Dept. of Soc. Serv.'s of City of New York,
    
    436 U.S. 658
    (1978)…………………………………….………..………...16
    Nance v. Nance,
    
    904 S.W.2d 890
    (Tex.App.—Corpus Christi 1995, no writ)……………...21
    Pedraza v. Crossroads Sec. Sys.,
    
    960 S.W.2d 339
    (Tex.App.—Corpus Christi 1997, no pet.)….8, 9, 20, 21,
    22, 23
    v
    Reata Constr. Corp. v. City of Dallas,
    
    197 S.W.3d 371
    (Tex.2006)…………………………..……………5, 6, 7, 14
    Sanders v. English,
    
    950 F.2d 1152
    (5th Cir.1992)……………………….………………….16, 20
    Sierra v. City of Pharr,
    No. 13-14-00425-CV, 
    2015 WL 2452707
    (Tex.App.—Corpus Christi 2015,
    no pet.)...…..…………………………………………………………5, 11, 12
    State v. Kreider,
    
    44 S.W.3d 258
    (Tex.App.—Fort Worth 2001, no pet. h)………….……...17
    State v. Seventeen Thousand Two Hundred Seventy Dollars In U.S.,
    No. 01-99-00213-CV, 
    2000 WL 124689
    (Tex.App.—Houston[1st]
    2000, pet. denied)……..…………………………………….…………...6, 14
    Tex. Dep’t of Criminal Justice v. Miller,
    
    51 S.W.3d 583
    (Tex. 2001)………………………………………………...17
    Tex. Dep’t of Parks & Wildlife Dep’t v. Garrett Place, Inc.,
    
    972 S.W.2d 140
    (Tex.App.—Dallas 1998, no pet.)….….……….………...17
    Tex. Dep't of Parks & Wildlife v. Miranda,
    
    133 S.W.3d 217
    (Tex. 2004)………..………………….5, 6, 7, 11, 12, 15, 16
    Tex. Dep’t of Parks & Wildlife Dep't v. Morris,
    
    129 S.W.3d 804
    (Tex.App.–Corpus Christi 2004, no pet.)…………5, 11, 12
    Tex. Dep't of Transp. v. Ramirez,
    
    74 S.W.3d 864
    (Tex. 2002) (per curiam)…….………………………….5, 12
    Statutes and Secondary Sources:
    TEX. CIV. PRAC. & REM. CODE ANN. § 101.021 and § 101.025(a)
    (Vernon 2013)…………………...……..……….………..………….6, 16, 17
    TEX. CIV. PRAC. & REM. CODE ANN. § 101.057
    (Vernon 2013)………………………………………………………...…6, 17
    vi
    TEX. CIV. PRAC. & REM. CODE § 101.101
    (Vernon 2013)………………………………………...…………6, 15, 19, 20
    TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(f)
    (Vernon 2013)…………………………………...…………………..6, 15, 16
    TEX. CRIM. PROC. CODE ANN. § 59.01-.06 (Vernon 2013)................................13, 14
    TRAP 38.1(g) & (i)…………………….............................................................3, 10
    References in Appellee’s Brief:
    “C.R.”—Trial Court’s Clerk’s Record
    “R.R.”—Trial Court’s Reporter’s Record
    vii
    IV.
    STATEMENT OF THE CASE/STATEMENT OF FACTS
    Appellant is an inmate and filed this case pro se. C.R. at 6-9. The factual
    background of the case is as follows: on or about February 20, 2012, Appellant
    was arrested on felony charges of manufacturing or delivering a controlled
    substance by the City of Yorktown, Texas Police Department. C.R. at 6-9. He
    was convicted and sentenced to 14 years at TDCJ. At the time of his arrest, his
    truck and other personal property were lawfully seized by the Yorktown Police
    Department and were lawfully disposed of by the DeWitt County District
    Attorney’s Office in accordance with the asset forfeiture statues of the State of
    Texas. C.R. at 6-9 & 24-30. Michael Sheppard (“Appellee”) is the DeWitt County
    District Attorney. C.R. at 6-9 & 24-30. Appellant alleges that Appellee, while
    working within the course and scope of his employment as District Attorney for
    DeWitt County, Texas, committed theft, conspiracy to commit theft, conversion,
    fraud, conspiracy to commit fraud and violation of the RICO act. C.R. at 6-9.
    Appellant’s allegations all stem from Appellant’s felony arrest and subsequent
    prosecution and lawful asset forfeiture of Appellant’s personal property. C.R. at 6-
    9 & 24-30.
    Appellee moved the trial court to dismiss Appellant’s claims on the basis
    that the trial court did not have jurisdiction over said claims. C.R. at 24-30.
    Specifically, Appellee contends that since Appellant’s claims against Appellee
    1
    arise out of Appellee’s fulfillment of his prosecutorial functions as DeWitt County
    District Attorney, Appellee is entitled to absolute prosecutorial immunity. C.R. at
    24-30. In addition, to the extent Appellant brings tort claims and claims under
    RICO Act against Appellee, Appellee’s sovereign/governmental immunity has not
    been waived and, as such, Appellant’s claims fail. C.R. at 24-30. The trial court
    agreed with Appellee and found that since Appellee is entitled to absolute
    prosecutorial immunity and sovereign/governmental immunity, the trial court lacks
    jurisdiction over Appellant’s claims. C.R. at 60.
    In addition, Appellant filed a Motion for Bench Warrant or in Lieu of Such
    Telephone Conference so Plaintiff May Attend Hearing to Dismiss for a Level
    Playing Field (“Motion for Bench Warrant”) which was denied by the trial court.
    C.R. at 43.
    With regard to Appellant’s Brief on the issue of qualified immunity,
    Appellee informs this Honorable Court of Appeals that Appellee did not seek
    dismissal of Appellant’s claims in the trial court on the grounds of qualified
    immunity. C.R. at 24-30. Nor did the trial court make a ruling on Appellee’s
    entitlement to qualified immunity. C.R. at 60. As such, Appellant’s appeal as it
    pertains to this Appellee has nothing to with the issue of qualified immunity.
    2
    V.
    STATEMENT REGARDING ORAL ARGUMENT
    Pursuant to Texas Rules of Appellate Procedure 38.1(e), Appellee does not
    request oral argument. Appellee does not believe that oral argument is necessary
    due to the straightforward arguments made in this Appellee’s Brief. But, if the
    Court grants oral argument, Appellee would like to participate.
    3
    VI.
    STATEMENT OF THE ISSUES
    A. Whether the trial court had jurisdiction over Appellant’s claims?
    B. Whether the trial court abused its discretion in its denying of Appellant’s
    Motion for Bench Warrant?
    4
    VII.
    SUMMARY OF THE ARGUMENT
    A. The trial court did not have jurisdiction over Plaintiff’s claims
    It is well established law that a plaintiff’s pleadings must affirmatively
    demonstrate a trial court’s subject-matter jurisdiction over a claim against a
    governmental entity (or official) by alleging a valid waiver of immunity. Sierra v.
    City of Pharr, No. 13-14-00425-CV, 
    2015 WL 2452707
    , at *2 (Tex.App.—Corpus
    Christi 2015, no pet.); Dallas Area Rapid Transit v. Whitley, 
    104 S.W.3d 540
    , 542
    (Tex. 2003); Tex. Dep't of Transp. v. Ramirez, 
    74 S.W.3d 864
    , 867 (Tex. 2002)
    (per curiam); Tex. Dep’t of Parks & Wildlife Dep't v. Morris, 
    129 S.W.3d 804
    , 807
    (Tex.App.–Corpus Christi 2004, no pet.). It is also well established law that a
    governmental entity or official’s immunity (absolute or sovereign/governmental)
    from suit deprives a trial court of subject-matter jurisdiction. Buchanan v. Cooley,
    No. 11-11-00129-CV, 
    2012 WL 760872
    , at *2 (Tex.App.—Eastland 2012, pet.
    denied); Reata Constr. Corp. v. City of Dallas, 
    197 S.W.3d 371
    , 374 (Tex.2006);
    Texas Dep’t of Parks and Wildlife v. Miranda, 
    133 S.W.3d 217
    , 225-226 (Tex.
    2004).
    Here, Appellant’s claims stem from the DeWitt County District Attorney’s
    Office’s lawful pursuit of asset forfeiture proceedings against Appellant and
    Appellant’s personal property. C.R. at 6-9 & 24-30. The DeWitt County District
    Attorney’s Office’s pursuit of asset forfeiture proceedings was a prosecutorial
    5
    function of the DeWitt County District Attorney’s Office. State v. Seventeen
    Thousand Two Hundred Seventy Dollars In U.S., No. 01-99-00213-CV, 
    2000 WL 124689
    , at *4 (Tex.App.—Houston[1st] 2000, pet. denied). It is well established
    law in Texas that District Attorneys are absolutely immune from liability when
    performing their prosecutorial functions.    Charleston v. Pate, 
    194 S.W.3d 89
    (Tex.App.—Texarkana 2006, no pet.); Imbler v. Pachtman, 
    424 U.S. 409
    , 416
    (1976). It is undisputed that Appellee is the DeWitt County District Attorney.
    C.R. at 6-9 & 24-30. Also, it is undisputed that Appellee initiated asset forfeiture
    proceedings against Appellant’s personal property. C.R. at 6-9 & 24-30. As such,
    Appellee is entitled to absolute immunity to all of Appellant’s claims against him.
    C.R. at 24-30. Since Appellee is entitled to absolute immunity (no waiver has
    occurred), the trial court lacks of subject-matter jurisdiction over Appellant’s
    claims and Appellant’s appeal should be denied. Buchanan, No. 11-11-00129-CV,
    
    2012 WL 760872
    , at *2; Reata Constr. 
    Corp., 197 S.W.3d at 374
    ; 
    Miranda, 133 S.W.3d at 225-226
    .
    Alternatively, with regard to Appellant’s tort claim, (theft, conversion,
    fraud), they are all intentional torts and fall outside the Texas Tort Claims Act
    limited waiver of immunity for tort claims against governmental entities/officials.
    C.R. at 24-30; TEX. CIV. PRAC. & REM. CODE ANN. 101.021, .025(a), .057,
    .101(a)&(c), .106(f).    As such, there has been no wavier of Appellee’s
    6
    sovereign/governmental immunity for Appellant’s tort claims. 
    Id. Since there
    has
    been no waiver of immunity, Appellee is entitled to sovereign/governmental
    immunity and the trial court lacks subject-matter jurisdiction. Buchanan, No. 11-
    11-00129-CV, 
    2012 WL 760872
    , at *2; Reata Constr. 
    Corp., 197 S.W.3d at 374
    ;
    
    Miranda, 133 S.W.3d at 225-226
    . Thus, Appellant’s appeal should be denied.
    Lastly, with regard to Appellant’s RICO claim, Appellee is entitled to
    sovereign/governmental immunity. The legislature does not provide a waiver of
    Appellee’s sovereign/governmental immunity for RICO claims. In re K.G.S., No.
    14-12-00673-CV, 
    2014 WL 801127
    , at *5 (Tex.App.—Houston [14th Dist.] 2014);
    Concho Residential Servs., Inc. v. MHMR Servs. for Concho Valley, No. 03–
    9800022–CV, 
    1999 WL 644727
    , at *6 (Tex.App.—Austin 1999, pet. denied)
    (mem. op., not designated for publication). Since the RICO Act does not waive
    Appellee’s   sovereign/governmental      immunity,    Appellant    has   failed   to
    affirmatively plead a demonstration of the trial court’s subject-matter jurisdiction
    and, as such, the trial court lacks subject-matter jurisdiction. Buchanan, No. 11-
    11-00129-CV, 
    2012 WL 760872
    , at *2; Reata Constr. 
    Corp., 197 S.W.3d at 374
    ;
    
    Miranda, 133 S.W.3d at 225-226
    . Therefore, Appellant’s appeal should be denied.
    B.    The trial court did not abuse its discretion in denying Appellant’s Motion for
    Bench Warrant.
    Although an inmate cannot be denied access to courts, an inmate does not
    have an absolute right to appear in person in civil proceeding. In re Z.L.T.,
    7
    J.K.H.T., and Z.N.T., 
    124 S.W.3d 163
    , 165 (Tex.2003); Pedraza v. Crossroads
    Sec. Sys., 
    960 S.W.2d 339
    , 342 (Tex.App.—Corpus Christi 1997, no pet.). It is in
    the trial court’s discretion to permit an inmate to attend a court proceeding in
    person. 
    Z.L.T., 124 S.W.3d at 165
    , 
    Pedraza, 960 S.W.2d at 342
    . The Supreme
    Court has identified several factors that a trial court should consider when deciding
    whether to grant a request for a bench warrant (1) the cost and inconvenience of
    transporting the prisoner to the courtroom; (2) the security risk the prisoner
    presents to the court and public; (3) whether the prisoner's claims are substantial;
    (4) whether the matter's resolution can reasonably be delayed until the prisoner's
    release; (5) whether the prisoner can and will offer admissible, noncumulative
    testimony that, cannot be effectively presented by affidavit or some other means;
    (6) whether the prisoner's presence is important in judging his demeanor and
    credibility; and (7) the prisoner's probability of success on the merits. 
    Z.L.T., 124 S.W.3d at 165
    ; 
    Pedraza, 960 S.W.2d at 342
    . It is important to note that the trial
    court has no responsibility to independently inquire into the applicability of the
    factors; rather, the inmate has the burden to establish his right to relief. 
    Z.L.T., 124 S.W.3d at 166
    . If the inmate fails to identify with sufficient specificity the grounds
    for the ruling he seeks under the factors identified above, the trial court does not
    abuse its discretion in denying his request. 
    Id. 8 Here,
    the trial court denied Appellant’s Motion for Bench Warrant and ruled
    on Appellee’s Motion to Dismiss for Lack of Jurisdiction (Plea to the Jurisdiction).
    C.R. at 68-69. Not only did the trial court impliedly find that Appellant has failed
    to establish his burden that he was entitled to a bench warrant, the trial court also
    entered an order denying Appellant’s Motion for Bench Warrant in which it found
    that there was undue and unnecessary cost and inconvenience associated with
    transporting Appellant to the courtroom to personally appear at the proceeding,
    Appellant’s claims were not substantial, Appellant would not offer admissible
    noncumulative testimony that could not have been effectively presented through
    affidavits, Appellant’s presence at hearing was not important in judging
    Appellant’s demeanor and credibility and lastly Appellant had no probability of
    success on the merits of his claims. C.R. at 68-69.
    Based on Appellant’s Motion for Bench Warrant and the trial court’s ruling,
    it is clear that Appellant failed to meet his burden of establishing any of the factors
    set out in Z.L.T. as to why his appearance at the hearing on Appellee’s Motion to
    Dismiss for Lack of Jurisdiction was necessary.         C.R. at 68-69.    Appellant’s
    Motion for Bench Warrant contains no information by which the trial court could
    assess the necessity of his appearance at the hearing.         C.R. at 43 & 68-69.
    Appellant’s Motion for Bench Warrant contains no basis or argument for granting
    the motion. 
    Pedraza, 960 S.W.2d at 342
    . It does not reference any of the factors
    9
    identified in Z.L.T. 
    Z.L.T., 124 S.W.3d at 165
    -66. As such, the trial court did not
    abuse its discretion in denying Appellant’s Motion for Bench Warrant.
    10
    VIII.
    ARGUMENT
    A.     All statements in Appellant’s Brief which are neither supported by or
    reference the record or legal authority should be struck and/or
    disregarded.
    In accordance with the Texas Rules of Appellate Procedure, every statement
    in Appellant’s Brief must be accompanied by an appropriate reference to the
    record or supported by legal authority. TRAP 38.1(g) & (i). Appellant has made
    numerous statements throughout his Appellant’s Brief without reference to any
    portion of the record or legal authority, Appellee respectfully asks this Honorable
    Court of Appeals to strike and/or disregard each and every unreferenced or
    unsupported statement in Appellant’s Brief.
    B.     The trial court did not have jurisdiction over Appellant’s claims.
    1. Standard of Review
    A plea to the jurisdiction is a dilatory plea; its purpose is “to defeat a cause
    of action without regard to whether the claims asserted have merit.” Sierra, No.
    13-14-00425-CV, 
    2015 WL 2452707
    , at *2; Bland Indep. Sch. Dist. v. Blue, 
    34 S.W.3d 547
    , 554 (Tex. 2000). The plea challenges the trial court's jurisdiction
    over the subject matter of a pleaded cause of action. Sierra, No. 13-14-00425-CV,
    
    2015 WL 2452707
    , at *2; 
    Miranda, 133 S.W.3d at 226
    ; 
    Morris, 129 S.W.3d at 807
    . Subject matter jurisdiction is a question of law; therefore, an appellate court
    reviews de novo a trial court's ruling on a plea to the jurisdiction. Sierra, No. 13-
    11
    14-00425-CV, 
    2015 WL 2452707
    , at *2; 
    Miranda, 133 S.W.3d at 226
    ; 
    Morris, 129 S.W.3d at 807
    .
    2. Plaintiff’s Burden of Pleading Jurisdiction
    The plaintiff in the trial court bears the burden to allege facts affirmatively
    demonstrating the trial court's jurisdiction to hear a case. Sierra, No. 13-14-00425-
    CV, 
    2015 WL 2452707
    , at *2; 
    Ramirez, 74 S.W.3d at 867
    ; 
    Morris, 129 S.W.3d at 807
    . When a trial court bases its decision concerning a plea to the jurisdiction on
    the plaintiff's pleadings, the Appellate Court must determine if the plaintiff has met
    his burden to plead facts sufficient to confer jurisdiction on the court. Sierra, No.
    13-14-00425-CV, 
    2015 WL 2452707
    , at *2; 
    Whitley, 104 S.W.3d at 542
    ; 
    Morris, 129 S.W.3d at 807
    .
    3. Appellee, DeWitt County District Attorney Michael Sheppard, was entitled
    to absolute prosecutorial immunity and, as such, the trial court lacked
    jurisdiction.
    It is well established law that in Texas, district attorneys and other
    prosecutors are absolutely immune from liability when performing their
    prosecutorial functions. 
    Charleston, 194 S.W.3d at 89
    ; 
    Imbler, 424 U.S. at 416
    .
    “Prosecutorial functions,” are those acts representing the government in filing and
    presenting criminal cases, as well as other acts, that are intimately associated with
    the judicial process, i.e., asset forfeiture proceedings. 
    Charleston, 194 S.W.3d at 89
    ; Lesher v. Coyel, 
    435 S.W.3d 423
    , 430 (Tex.App.—Dallas 2014, reh'g
    12
    overruled (July 29, 2014)); 
    Imbler, 424 U.S. at 430
    . Further, absolute immunity
    is effective against all claims regardless of whether they are lodged against the
    individual possessing it in his official or personal capacity.         Clawson v.
    Wharton Cnty., 
    941 S.W.2d 267
    , 273 (Tex.App.—Corpus Christi 1996, writ
    denied). (emphasis added).
    Here, Appellant brought claims in the trial court against Appellee; however,
    Appellant failed to plead facts which affirmatively demonstrate the trial court’s
    jurisdiction over his claims. C.R. at 6-9. In fact, the facts alleged by Appellant
    affirmatively negate trial court’s jurisdiction.   C.R. at 6-9.   Appellant, in his
    petition filed with the trial court, alleges that Appellant committed theft of
    Appellant’s personal property when Appellee (and Appellee’s office) initiated
    asset forfeiture proceedings against Appellant and Appellant’s personal property.
    C.R. at 6-9. The only action of Appellee, which Appellant complains of to the trial
    court in his petition, involves asset forfeiture proceeding against Appellant’s
    personal property. C.R. 6-9 & 24-30.
    Appellee’s involvement in the asset forfeiture proceeding is clearly a
    prosecutorial function of the DeWitt County District Attorney’s Office, as it is an
    action intimately associated with the judicial process. C.R. at 6-9 & 24-30. Article
    59 of the Texas Code of Criminal Procedure governs asset forfeiture proceedings.
    TEX. CRIM. PROC. CODE ANN. § 59.01-.06 (Vernon 2013). Once a peace officer
    13
    seizes property that is contraband under chapter 59 of the Code of Criminal
    Procedure, the “attorney representing the state” must commence a forfeiture
    proceeding.   TEX. CRIM. PROC. CODE ANN. § 59.04(a) (Vernon 2013).                The
    “attorney representing the state” is the prosecutor with felony jurisdiction in the
    county in which a forfeiture proceeding is held under chapter 59. TEX. CRIM. PROC.
    CODE ANN. § 59.01(1) (Vernon 2013). A district attorney has felony jurisdiction in
    the district courts within his or her district. TEX. CRIM. PROC. CODE ANN. § 2.01
    (Vernon 2013).     Although this Honorable Court of Appeals has not directly
    addressed whether asset forfeiture proceeding is a prosecutorial function of a
    district attorney, the First Court of Appeals in State v. Seventeen Thousand Two
    Hundred Seventy Dollars In U.S., has explained that when a district attorney
    initiating asset forfeiture proceedings he/she is preforming a prosecutorial function.
    Seventeen Thousand Two Hundred Seventy Dollars In U.S., No. 01-99-00213-CV,
    
    2000 WL 124689
    , at *4.
    Since Appellee’s initiation of asset forfeiture proceedings is a prosecutorial
    function of a district attorney, Appellee is entitled to absolute immunity for
    performing such functions. 
    Charleston, 194 S.W.3d at 89
    ; 
    Imbler, 424 U.S. at 416
    .
    Furthermore, it is well established law that a governmental entity or official has
    absolute immunity from suit deprives a trial court of subject-matter jurisdiction.
    Buchanan, No. 11-11-00129-CV, 
    2012 WL 760872
    , at *2; Reata Constr. Corp.,
    
    14 197 S.W.3d at 374
    ; 
    Miranda, 133 S.W.3d at 225-226
    . Therefore, since Appellee is
    entitled to absolute immunity to Appellant’s claims, the Court lacks subject-matter
    jurisdiction over Appellant’s claims and, consequently, Appellant’s appeal should
    be denied.
    4. Alternatively, Appellee DeWitt County District Attorney Michael Sheppard
    is entitled to sovereign/governmental immunity and, as such, the trial court
    lacked jurisdiction .
    a) Appellant’s Theft, Conversion & Fraud Claims
    Appellant’s causes of action for theft, conversion and fraud are all tort
    claims. The only avenue available for Appellant to bring these tort claims against
    Appellee is under the Texas Tort Claims Act. TEX. CIV. P. & REM. CODE §
    101.101 (Vernon’s 2013). Since Appellant’s claims against Appellee are based on
    Appellee’s conduct within the general scope of his duties as the DeWitt County
    District Attorney’s Office, the claims must be made against him in his Official
    Capacity pursuant to Section 101.106 of the Texas Civil Practice and Remedies
    Code. TEX. CIV. P. & REM. CODE § 101.106. Section 101.106(f) mandates that the
    only tort claims Plaintiff can make against District Attorney Sheppard are ones
    against him in his Official Capacity because Appellee the suit was made against
    Appellee “based on conduct within the general scope of the employees’ (Appellee)
    employment” and the suit “could have been brought under this chapter” against the
    governmental unit. TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(f); Franka v.
    15
    Velasquez, 
    332 S.W.3d 367
    , 370-71 (Tex. 2011). With regard to the second prong,
    the Texas Supreme Court held in Franka v. Velasquez that any and all tort
    actions “could have been brought under” the Tort Claims Act against the
    governmental entity for purposes of Section 101.106. 
    Franka, 332 S.W.3d at 375
    (emphasis added). As such, Appellant’s tort claims “are considered to be against
    Appellee in the Appellee's official capacity only. 
    Id. at 381.
    Furthermore, it is well settled law that a suit against a governmental official
    in his official capacity is actually a claim against the governmental unit—here,
    DeWitt County. Goodman v. Harris County, 
    571 F.3d 388
    , 395 (5th Cir. 2009)
    (citing Monell v. Dept. of Soc. Serv.'s of City of New York, 
    436 U.S. 658
    (1978));
    Kentucky v. Graham, 
    473 U.S. 159
    , 166 (1985) (citation omitted); Hafer v. Melo,
    
    502 U.S. 21
    (1991); Sanders v. English, 
    950 F.2d 1152
    , 1158 (5th Cir.1992).
    DeWitt County is a governmental entity and is, therefore, immune from suits in
    tort, except as waived by the Legislature in the Texas Tort Claims Act. 
    Miranda, 133 S.W.3d at 224-25
    . The Texas Tort Claims Act, Section 101.025 of the Texas
    Civil Practice and Remedies Code, provides the following limited waiver of a
    governmental unit's sovereign/governmental immunity from suit and liability for
    (1) property damage, personal injury, and death from the operation or
    use of a motor-driven vehicle or motor-driven equipment, if the
    employee would be personally liable to the claimant; and
    (2) personal injury and death so caused by a condition or use of
    tangible personal or real property if the governmental unit would,
    16
    were it a private person, be liable to the claimant. TEX. CIV. PRAC. &
    REM. CODE ANN. § 101.021 and § 101.025(a) (Vernon 2013).
    Also, Section 101.021(2) of the Texas Tort Claims Act, allows for suit for personal
    injury or death caused by the condition or use of tangible personal or real property.
    
    Id. Here, in
    order for Appellant to affirmatively demonstrate the trial court’s
    jurisdiction over his tort claims, he must allege claims within the limited waiver of
    immunity under the Act. Tex. Dep’t of Criminal Justice v. Miller, 
    51 S.W.3d 583
    ,
    587 (Tex. 2001); Dallas County Mental Health & Mental Retardation v. Bossely,
    
    968 S.W.2d 339
    , 341 (Tex. 1998); State v. Kreider, 
    44 S.W.3d 258
    , 262
    (Tex.App.—Fort Worth 2001, no pet. h); Lamar Univ. v. Doe, 
    971 S.W.2d 191
    ,
    197 (Tex.App.—Beaumont 1998, no pet.); Tex. Parks & Wildlife Dep’t v. Garrett
    Place, Inc., 
    972 S.W.2d 140
    , 143 (Tex.App.—Dallas 1998, no pet.). However,
    Appellant   fails to assert     allegations that fall within any waiver of
    sovereign/governmental immunity under the Texas Tort Claims Act. C.R. at 6-9.
    In fact, it is impossible for Appellant to plead such as Appellant’s allegations of
    theft, conversion & fraud fall under the category of intentional torts and the Texas
    Tort   Claims   Act   specifically does       not   waive a   governmental      unit’s
    sovereign/governmental immunity for claims of intentional torts. TEX. CIV. PRAC.
    & REM. CODE ANN. § 101.057.
    17
    As     such,    Appellee    (DeWitt      County,    Texas)        is   entitled   to
    sovereign/governmental immunity, including immunity from suit, from whatever
    tort claims Appellant is attempting to assert.        Since Appellee is entitled to
    immunity, the trial court lacks jurisdiction. Therefore, Appellant has failed to
    plead a cause of action within the subject matter of the trial court.
    b) Appellant’s RICO Claim
    Appellee’s sovereign/governmental immunity has not been waived
    legislatively for claims brought under the RICO Act. In re K.G.S., No. 14-12-
    00673-CV, 
    2014 WL 801127
    , at *5 (Tex.App.—Houston [14th Dist.] 2014);
    Concho Residential Servs., Inc. v. MHMR Servs. for Concho Valley, No. 03–
    9800022–CV, 
    1999 WL 644727
    , at *6 (Tex.App.—Austin 1999, pet. denied)
    (mem. op., not designated for publication) (RICO claims failed because appellees
    were “entitled to sovereign immunity from these claims”); Chaz Constr., LLC
    v.Codell, 137 Fed. Appx. 735, 743 (6th Cir. 2005) (not designated for publication)
    (“RICO does not arise under §5 of the Fourteenth Amendment,” and thus does not
    fall within Congress's power to waive sovereign immunity); Weaver v. United
    States, 
    98 F.3d 518
    , 521 n. 2 (10th Cir. 1996) (RICO statutes did not provide an
    express waiver of sovereign/governmental immunity). Since the RICO Act does
    not waive a governmental unit’s (or an official of a governmental unit – Appellee),
    18
    sovereign immunity, Appellant has failed to plead a cause of action within the
    subject-matter of the trial court. As such, Appellant’s appeal should be denied.
    5. Alternatively, Appellant failed to provide adequate notice pursuant to the
    Texas Tort Claims Act and, as such, the trial court lacked jurisdiction.
    To the extent Appellant is able to prove a waiver of immunity to pursue tort
    claims against Appellee, Appellant’s claims are time barred and, as such, the trial
    court lacks jurisdiction. TEX. CIV. P. & REM. CODE § 101.101. Section 101.101 of
    the Texas Civil Practice and Remedies Code states
    (a) a governmental unit is entitled to receive notice of a claim against it
    under this chapter not later than six months after the day that the incident
    giving rise to the claim occurred. The notice must reasonably describe:
    (1) the damage or injury claimed;
    (2) the time and place of the incident; and
    (3) the incident.
    …
    (c) the notice requirements provided, or notified and approved, by
    Subsections (a) and (b) do not apply if the governmental unit has actual
    notice that death has occurred, that the claimant has received some injury, or
    that the claimant’s property has been damaged. TEX. CIV. PRAC. & REM.
    CODE § 101.101(a) & (c).
    Here, Appellant failed to satisfy the “notice” requirement of Section
    101.101. It is undisputed that Appellee is the DeWitt County, Texas District
    Attorney. C.R. 6-9 & 24-30. It is also undisputed that the actions which Appellant
    complains of are based on Appellee’s conduct within the general scope of his
    19
    duties as the DeWitt County District Attorney’s Office, the claims must be made
    against him in his Official Capacity. C.R. 6-9 & 24-30. It is well settled law that a
    suit against a governmental official in his official capacity is actually a claim
    against the governmental unit—here, DeWitt County. 
    Goodman, 571 F.3d at 395
    ;
    Hafer, 
    502 U.S. 21
    ; 
    Sanders, 950 F.2d at 1158
    . Thus, Section 101.101 applies.
    The incident which forms the basis of Appellant’s suit occurred on February 20,
    2012. C.R. at 6-9. The six-month limitations period for Appellant to give notice
    of his claim was August 20, 2012. C.R. at 6-9. Appellant failed to send a “notice
    of claim” letter to DeWitt County, Texas reasonably describing (1) the injury
    claimed, (2) time and place of incident and (3) the incident. As a result of
    Appellant’s failure to provide Appellee with proper notice, Appellant’s tort claims
    against Appellee are time barred and, as such, the trial court lacks jurisdiction over
    said tort claims.
    C.     The trial court did not abuse its discretion in denying Appellant’s Motion
    for Bench Warrant.
    1. Standard of Review
    An Appellate Court reviews a trial court's denial of a bench warrant motion
    for an abuse of discretion. Jackson v. Neal, No. 13-07-00164-CV, 2009 Tex.App.
    LEXIS 370, at *5-6, 
    2009 WL 140507
    (Tex.App.-Corpus Christi, no pet.); 
    Z.L.T., 124 S.W.3d at 165
    ; 
    Pedraza, 960 S.W.2d at 342
    . To determine whether a trial
    court abused its discretion, this Honorable Court of Appeals must decide whether
    20
    the trial court acted without reference to any guiding rules or principles; in other
    words, whether the act was arbitrary or unreasonable. Jackson,No. 13-07-00164-
    CV, 
    2009 WL 140507
    , at *5-6; Downer v. Aquamarine Operators, Inc., 
    701 S.W.2d 238
    , 241-42 (Tex.1985). Merely because a trial court may decide a matter
    within its discretion differently than an appellate court would in similar
    circumstances does not demonstrate an abuse of discretion. 
    Downer, 701 S.W.2d at 241
    –42.
    2. The trial court did not abuse its discretion in denying Plaintiff’s Motion for
    Bench Warrant.
    “It is well-established that litigants cannot be denied access to the courts
    simply because they are inmates.” 
    Z.L.T., 124 S.W.3d at 165
    (citing Hudson v.
    Palmer, 
    468 U.S. 517
    , 524, 
    104 S. Ct. 3194
    , 
    82 L. Ed. 2d 393
    (1984)). However, an
    inmate does not have an absolute right to appear in person in every court
    proceeding. 
    Z.L.T., 124 S.W.3d at 165
    ; Jackson, No. 13-07-00164-CV, 
    2009 WL 140507
    , at *5-6; 
    Pedraza, 960 S.W.2d at 342
    . In fact, this Honorable Court of
    Appeals has held prisoners have no absolute right to appear personally at civil
    proceedings. 
    Pedraza, 960 S.W.2d at 342
    ; Nance v. Nance, 
    904 S.W.2d 890
    , 893
    (Tex.App.—Corpus Christi 1995, no writ). The Supreme Court has identified the
    following factors that the trial court should consider when deciding whether to
    grant a request for a bench warrant:
    1. the cost and inconvenience of transporting the prisoner to the courtroom;
    21
    2. the security risk the prisoner presents to the court and public;
    3. whether the prisoner's claims are substantial;
    4. whether the matter's resolution can reasonably be delayed until the
    prisoner's release;
    5. whether the prisoner can and will offer admissible, noncumulative
    testimony that, cannot be effectively presented by affidavit;
    6. whether the prisoner's presence is important in judging his demeanor and
    credibility;
    7. whether the trial is to the court or a jury; and
    8. the prisoner's probability of success on the merits. 
    Z.L.T., 124 S.W.3d at 165
    ; 
    Pedraza, 960 S.W.2d at 342
    .
    The trial court has no responsibility to independently inquire into the
    applicability of the factors; rather, the inmate has the burden to establish his right
    to relief. 
    Z.L.T., 124 S.W.3d at 166
    . If the inmate fails to identify with sufficient
    specificity the grounds for the ruling he seeks under the factors identified above,
    the trial court does not abuse its discretion in denying his request. 
    Z.L.T., 124 S.W.3d at 166
    ; Jackson, No. 13-07-00164-CV, 
    2009 WL 140507
    , at *5-6.
    Given that a prisoner (Appellant) has no right to appear in court in a civil
    case he has initiated, it follows Appellant must justify his personal appearance.
    
    Z.L.T., 124 S.W.3d at 166
    ; Jackson, No. 13-07-00164-CV, 
    2009 WL 140507
    , at
    *5-6. Appellant offered no such justification. C.R. at 43. His Motion for Bench
    Warrant contains no basis or argument for granting it. C.R. at 43. Because
    Appellant failed to meet his burden to prove his entitlement to a bench warrant, the
    22
    trial court did not abuse its discretion in denying Appellant’s Motion for Bench
    Warrant. 
    Pedraza, 960 S.W.2d at 342
    .
    In addition, the trial court entered an order denying Appellant’s Motion for
    Bench Warrant in which it found that there was undue and unnecessary cost and
    inconvenience associated with transporting Appellant to the courtroom to
    personally appear at the proceeding, Appellant’s claims were not substantial,
    Appellant would not offer admissible noncumulative testimony that could not have
    been effectively presented through affidavits, Appellant’s presence at hearing was
    not important in judging Appellant’s demeanor and credibility and, lastly,
    Appellant had no probability of success on the merits of his claims. C.R. at 68-69.
    The trial court clearly applied the factors set forth by the Supreme Court in
    determining whether Appellant was entitled to a bench warrant and, upon
    balancing those factors, the trial court found that Appellant was not entitled to a
    bench warrant. C.R. 68-69. Since the trial court applied the factors set forth by the
    Supreme Court, it did not abuse its discretion in denying Appellant a bench
    warrant.
    Therefore, Appellants second issue on appeal should be denied.
    23
    IX.
    PRAYER
    Appellee respectfully requests this Honorable Court of Appeals to deny the
    relief requested by Appellant, to affirm the trial court’s judgment, and to award
    Appellee all other relief to which he is justly entitled.
    Respectfully submitted by:
    By:          /s/ Casey T. Cullen
    Casey T. Cullen
    State Bar No. 24073121
    Ann LaMantia Cullen
    State Bar No. 24078818
    CULLEN, CARSNER, SEERDEN &
    CULLEN, L.L.P.
    119 South Main Street (77901)
    P. O. Box 2938
    Victoria, Texas 77902
    Tel: (361) 573-6318
    Fax: (361) 573-2603
    ATTORNEYS FOR APPELLEE
    DEWITT COUNTY DISTRICT
    ATTORNEY MICHAEL SHEPPARD
    24
    X.
    CERTIFICATE OF COMPLIANCE
    Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), the undersigned
    certifies that this Brief complies with the length limitations of Rule 9.4(i) and the
    typeface requirements of 9.4(e).
    1.    Exclusive of the contents excluded by Rule 9.4(i)(1), this Brief
    contains 4,687 words as counted by the Word Count function of Microsoft Office
    Word 2010.
    2.     This Brief has been prepared in proportionally spaced typeface using:
    Software Name and Version: Microsoft Word 2010
    Typeface Name: Times New Roman
    Font Size: 14 point
    /s/ Casey T. Cullen
    Casey T. Cullen
    25
    XI.
    CERTIFICATE OF SERVICE
    This is to certify that a true and correct copy of the above and foregoing
    Brief of Appellee has been forwarded by electronic service through
    eFile.TXCourts.gov to the undersigned counsel and by U.S. First Class Mail to
    Appellant Pro Se:
    PRO SE APPELLANT:
    Mr. Timothy Hays
    Pro Se
    3001 South Emily Drive
    Beeville, Texas 78102 Via U.S. First Class Mail
    CITY OF YORKTOWN, TEXAS CHIEF OF POLICE PAUL CAMPOS
    AND CITY OF YORKTOWN, TEXAS POLICE DEPARTMENT
    SERGEANT ERNESTO GARCIA:
    Charles S. Frigerio
    Hector X. Saenz
    Law Offices of Charles S. Frigerio, P.C.
    Riverview Towers
    111 Soledad, Suite 840
    San Antonio, TX 78205 Via Email through eFile.TXCourts.gov
    on the 22nd day of July, 2015.
    /s/ Casey T. Cullen
    Casey T. Cullen
    26
    

Document Info

Docket Number: 13-15-00216-CV

Filed Date: 7/27/2015

Precedential Status: Precedential

Modified Date: 9/29/2016

Authorities (22)

Dallas Area Rapid Transit v. Whitley , 46 Tex. Sup. Ct. J. 595 ( 2003 )

Texas Parks & Wildlife Department v. Garrett Place, Inc. , 1998 Tex. App. LEXIS 2926 ( 1998 )

Lamar University v. Doe , 1998 Tex. App. LEXIS 4136 ( 1998 )

Monell v. New York City Dept. of Social Servs. , 98 S. Ct. 2018 ( 1978 )

Roland S. Weaver v. United States , 98 F.3d 518 ( 1996 )

Charleston v. Pate , 2006 Tex. App. LEXIS 4382 ( 2006 )

Hafer v. Melo , 112 S. Ct. 358 ( 1991 )

Clawson v. Wharton County , 941 S.W.2d 267 ( 1997 )

State of Texas Parks & Wildlife Department v. Morris , 2004 Tex. App. LEXIS 2526 ( 2004 )

In Re ZLT , 124 S.W.3d 163 ( 2003 )

Franka v. Velasquez , 54 Tex. Sup. Ct. J. 460 ( 2011 )

Texas Department of Parks & Wildlife v. Miranda , 47 Tex. Sup. Ct. J. 386 ( 2004 )

Reata Construction Corp. v. City of Dallas , 49 Tex. Sup. Ct. J. 811 ( 2006 )

Kentucky v. Graham , 105 S. Ct. 3099 ( 1985 )

Floyd Sanders, III v. Don English, Curtis McCoy Ed Perry, ... , 950 F.2d 1152 ( 1992 )

Downer v. Aquamarine Operators, Inc. , 29 Tex. Sup. Ct. J. 88 ( 1985 )

Pedraza v. Crossroads Security Systems , 1997 Tex. App. LEXIS 6536 ( 1997 )

Dallas Cty. Mental Health and Mental Retardation v. Bossley , 968 S.W.2d 339 ( 1998 )

State v. Kreider , 2001 Tex. App. LEXIS 2410 ( 2001 )

Bland Independent School District v. Blue , 44 Tex. Sup. Ct. J. 125 ( 2000 )

View All Authorities »