in Re Linda Farr Arnold ( 2005 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-05-00397-CV

In re Linda Farr Arnold

Original Proceeding

MEMORANDUM  Opinion

          Linda Farr Arnold, through Joseph Dale Robertson, filed an application for writ of habeas corpus complaining that she is constructively confined and restrained in her liberty because of the threat of the execution of a writ of possession entered in conjunction with a forcible entry and detainer action.  We dismiss the petition.

          It is important to decide first whether we have jurisdiction to review his habeas petition.  Ex parte Ustick, 9 S.W.3d 922, 924 (Tex. App.—Waco 2000, orig. proceeding).  Our original jurisdiction in habeas corpus petitions is limited.  In civil cases, the courts of appeals, concurrent with the Texas Supreme Court, have limited jurisdiction of habeas proceedings by virtue of the Texas Government Code.  Id.  See Ex parte Layton, 928 S.W.2d 781, 782 (Tex. App.—Amarillo 1996, orig. proceeding); Tex. Gov't Code Ann. § 22.221(d) (Vernon 2004).  The Code provides, in part:

(d) Concurrently with the supreme court, the court of appeals of a court of appeals district in which a person is restrained in his liberty...may issue a writ of habeas corpus when it appears that the restraint of liberty is by virtue of an order, process, or commitment issued by a court or judge because of the violation of an order, judgment, or decree previously made, rendered, or entered by the court or judge in a civil case....

Tex. Gov't Code Ann. § 22.221(d) (Vernon 2004) (emphasis added).  Thus, the petitioner must be seeking freedom from restraint imposed by an order arising from the violation of a previous order in a civil case.  See Ex parte Hawkins, 885 S.W.2d 586, 588 (Tex. App.—El Paso 1994, orig. proceeding).  But in criminal cases, we do not have original habeas corpus jurisdiction.  Tex. Code Crim. Proc. Ann. art. 11.05 (Vernon 2005); Ex parte Hawkins, 885 S.W.2d 586, 588 (Tex. App.—El Paso 1994, orig. proceeding).

          Arnold complains about a writ of possession issued to remove her from where she lives.  This is a civil matter. However, she is not being restrained in her liberty because of the violation of an order previously made.  There is only one order about which she complains, the writ of possession.  And she has not violated that order.  Therefore, we have no jurisdiction to issue a writ of habeas corpus.

          Arnold further contends that she is being held in constructive custody as defined by article 11.21 of the Code of Criminal Procedure.  Tex. Code Crim. Proc. Ann. art. 11.21 (Vernon 2005).  However, the threat of an eviction is not the type of threat contemplated by that provision.  Additionally, this provision pertains to writs of habeas corpus in criminal law matters, and we have no original jurisdiction in those matters.

          Accordingly, the petition for writ of habeas corpus is dismissed for want of jurisdiction.

                                                                   TOM GRAY

                                                                   Chief Justice

Before Chief Justice Gray,

          Justice Vance, and

          Justice Reyna

          (Justice Vance concurs without a separate opinion)

Writ dismissed

Opinion delivered and filed November 18, 2005

[OT06]

>      Appellee Sehon, the prosecuting District Attorney in Falls County, is entitled to absolute prosecutorial immunity for any activity associated with the judicial phase of the criminal process. Imbler v. Pachtman, 424 U.S. 409 (1976); Brandt v. West, 892 S.W.2d 59, 70 (Tex. App.—Houston [1^st] 1994, writ denied). The law of absolute immunity applies to all acts flowing from the prosecutorial function even where the prosecutor acts in bad faith. Imbler, p. 430-31.

      Sgt. Moore was a witness in Appellant’s criminal case in Falls County. There is absolute immunity of witnesses from subsequent liability for their testimony in judicial proceedings. Lombardo v. Traughber, 990 S.W.2d 958, 960 (Tex. App.—Beaumont 1999, writ denied).

      Appellant filed an unsworn declaration of inability to pay costs. Chapter 14 Tex. Civ. Prac. & Rem. Code applies to a suit brought by an inmate who files an affidavit or unsworn declaration of inability to pay costs. Section 14.002.

      Section 14.003(a) provides that a court may dismiss a claim, either before or after service of process, if the court finds that: (2) the claim is frivolous or malicious. Section 14.003(b) provides that in determining whether a claim is frivolous or malicious, the court may consider whether: 1) the claim’s realistic chance of ultimate success is slight; 2) the claim has no agruable basis in law or in fact; 3) it is clear that the party cannot prove facts in support of his claim; or 4) the claim is substantially similar to a previous claim filed by the inmate.

      Our review of a dismissal under Chapter 14 is controlled by the abuse of discretion standard. Abuse of discretion is determined by whether the court acted without reference to any guiding principles. Craddock v. Sunshine Bus Lines, 133 S.W.2d 136 (Tex. 1939). On the record before us, we cannot hold that the trial court abused its discretion by dismissing the claim against Coker.

      Claims against District Attorney Sehon are barred by absolute prosecutorial immunity. Likewise, claims against Sgt. Moore are barred by witness immunity.

      Appellant’s contentions are overruled.

      The two orders of the trial court dismissing Appellant’s lawsuit are affirmed.

                                                                         FRANK G. McDONALD

                                                                         Chief Justice (Retired)

Before Chief Justice Davis,

      Justice Gray, and

      Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed January 24, 2001

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