in the Interest of M.G., D.G., S.G., E.G., R.M., Children ( 2009 )

NO. 07-09-0137-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

NOVEMBER 9, 2009

______________________________

IN THE INTEREST OF M.G., D.G., S.G., E.G., AND R.M., CHILDREN

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FROM THE 72ND DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2008-542,603; HONORABLE KEVIN C. HART, ASSOCIATE JUDGE

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Before CAMPBELL and HANCOCK and PIRTLE, JJ.

CONCURRING OPINION

          I join in the Court’s opinion, and write simply to add that, were we to find that the merits of this father’s appellate contentions were preserved for our review, I still would affirm the trial court’s judgment. I cannot agree with appellant’s contention the evidence that termination of his parental rights is in the best interest of his children is insufficient, legally or factually. The children ranged in ages from four to thirteen at the time of trial. Their mother’s parental rights have been terminated. Their father is incarcerated and may remain so until 2016. He could present no plan for the care of the children until his release. Those facts, coupled with the evidence of a history of family violence and other criminal conduct, were sufficient, in my view, to permit the trial court to find termination of the father’s parental rights in the best interest of the children. See In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2004) (legal sufficiency standard). The contrary evidence, showing appellant desired to maintain a relationship with his children, and had participated in programs and taken other steps to address his destructive behaviors, is not insignificant. Considering the entire record, however, the evidence permitted the trial court reasonably to form a firm belief or conviction termination was in the children’s best interest. See In re C.H., 89 S.W.3d 17, 25 (Tex. 2002) (factual sufficiency standard).

 

                                                                           James T. Campbell

Justice

ven days of segregated confinement in the instant case does not present a type of atypical, significant deprivation in which this State has created a protected liberty interest. Sandin, 132 L.Ed.2d at 431. See also Madison v. Parker, 104 F.3d 765 (5th Cir. 1997) (where it was held that state created liberty interests in inmates are generally limited to statutes and regulations affecting the quantity of time rather than the quality of time served by the inmate and that a 30 day cell restriction did not implicate due process). Because appellant had no liberty interest in not being restricted to his cell for seven days, neither his due process, nor his due course of law rights were implicated, and the trial court correctly ruled that his claim had no arguable basis in law. Without an arguable basis in law, appellant was not entitled to an evidentiary hearing on appellee's motion to dismiss.

Moreover, appellant sought a declaratory judgment that the defendant(s) violated 42 U.S.C. § 1983 by depriving him of his due process and due course of law rights under both the federal and Texas Constitutions by subjecting him to seven days confinement in his cell. In connection with his action for declaratory relief, appellant sought $1,700.00 in tort damages, however, a declaratory judgment action is not a proper procedure for the determination of tort liability. Abor v. Black, 695 S.W.2d 564, 566 (Tex. 1985); Stein v. First Nat. Bank of Bastrop, 950 S.W.2d 172, 174 (Tex.App. --Austin 1997, no pet.). As Section 1983 violations are ordinarily considered torts, appellant's declaratory judgment was an improper proceeding to establish such liability. Cf. Sylvester v. Watkins, 538 S.W.2d 827, 831 (Tex.App.--Amarillo 1976, writ ref'd n.r.e.) (where it was held that declaratory relief ordinarily will not be granted where the cause of action has fully matured and the action invokes an appropriate present remedy at law). Consequently, the trial court did not err in finding no arguable basis in law to support appellant's declaratory judgment action. Points two and three are overruled.

Accordingly, the judgment is affirmed.

Don H. Reavis

Justice

Do not publish.

1. The suit against the two other TDCJ-ID employees was dismissed by separate order and appellant has not appealed the final dismissal as applied to them.