John Roberts v. Bree Allen ( 2013 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
___________________
NO. 09-12-00339-CV
___________________
JOHN ROBERTS, Appellant
V.
BREE ALLEN, ET AL, Appellees
_________________________________________________________________ _
On Appeal from the 1A District Court
Newton County, Texas
Trial Cause No. 13225
________________________________________________________________ _
MEMORANDUM OPINION
John Roberts appeals from the trial court’s dismissal of his lawsuit pursuant
to Chapter 14 of the Texas Civil Practice & Remedies Code. See Tex. Civ. Prac. &
Rem. Code Ann. §§ 14.001-14.014 (West 2002 & Supp. 2012). We affirm the trial
court’s order of dismissal.
BACKGROUND
Roberts filed a lawsuit in Wichita County against numerous defendants,
including district judges, prosecutors, defense counsel, district clerks, deputy
1
attorneys general, the sheriff, an official court reporter, and the director of the
Texas Department of Criminal Justice. Roberts captioned his lawsuit as “Roberts
vs. Newton County et al,” but Roberts did not actually name Newton County itself
as a defendant. Roberts alleged that he was convicted of capital murder in Newton
County without presentment by the grand jury of a “true bill of indictment” and
that malicious prosecution occurred. A copy of the judgment from Roberts’s
criminal trial appears in the appellate record, and the copy reflects that the
judgment was signed on September 18, 1997. Roberts did not mention venue in the
petition, but did declare that he was incarcerated in Wichita County on the date the
petition was filed. With his petition, Roberts filed a declaration of inability to pay
costs, as well as an affidavit of previous filings. Roberts also filed a “motion for
stay of venue,” in which he alleged that he filed the lawsuit in Wichita County
because the suit named numerous Newton County court officials who “would have
much prejudice against Plaintiff[.]”
Two of the defendants filed motions to transfer venue of the cause to
Newton County. The Wichita County trial court granted one of the motions and
signed an order transferring venue to Newton County. Subsequently, the Newton
County District Court signed an order dismissing Roberts’s case “in its entirety” as
frivolous pursuant to chapter fourteen of the Civil Practice and Remedies Code,
2
and noted in the order that the dismissal was with prejudice. Roberts filed this
appeal, in which he contends in two issues that the trial court erred by granting a
motion to transfer venue without allowing him an evidentiary hearing and a
reasonable opportunity to conduct discovery, and that the trial court abused its
discretion when it dismissed his case as frivolous, with prejudice.
VENUE
In his first issue, Roberts argues that the trial court erred by granting the
motion to transfer venue. The general venue rule, found in section 15.002 of the
Civil Practice and Remedies Code provides as follows, in pertinent part: “all
lawsuits shall be brought: . . . in the county in which all or a substantial part of the
events or omissions giving rise to the claim occurred[.]” Tex. Civ. Prac. & Rem.
Code Ann. § 15.002(a)(1) (West 2002). Another mandatory venue provision is
found in section 15.019 of the Civil Practice and Remedies Code, which states that
“an action that accrued while the plaintiff was housed in a facility operated by or
under contract with the Texas Department of Criminal Justice shall be brought in
the county in which the facility is located.” Id. § 15.019(a) (West 2002) (emphasis
added).
The appellate record reflects that the judgment in which Roberts was found
guilty of murder was signed in 1997. Roberts’s petition alleged that he was
3
incarcerated at a facility in Wichita County in 2010, when he filed his petition. In
his “motion to stay venue,” as well as his responses to the motions to transfer
venue, Roberts asserted only that he would be prejudiced should venue be
transferred to Newton County. Roberts cited Texas Rule of Civil Procedure 257,
which provides that “[a] change of venue may be granted in civil causes upon
motion of either party . . . [if] . . . there exists in the county where the suit is
pending so great a prejudice against him that he cannot obtain a fair and impartial
trial.” Tex. R. Civ. P. 257(a).
Rule 257 deals with motions to transfer venue, and does not itself permit
venue in a particular county. See Tex. R. Civ. P. 257. Roberts was not seeking a
change of venue, but was instead attempting to support his selection of Wichita
County as the county where he filed his lawsuit. Furthermore, Rule 257 requires
that a motion to change venue must be supported by the affidavits of “at least three
credible persons” who are “residents of the county in which the suit is pending[.]”
Tex. R. Civ. P. 257. Roberts did not provide any affidavits or unsworn declarations
in support of either of his responses to the motions to transfer venue. Therefore,
Rule 257 does not support Roberts’s arguments. In addition, the case Roberts cites
for the proposition that the trial court must grant an evidentiary hearing or permit
discovery prior to ruling on a motion to transfer venue is inapposite because that
4
case involved opposing affidavits that created a fact issue. See City of Irving v.
Luttrell, 351 S.W.2d 941, 942-43 (Tex. Civ. App.—Amarillo 1961, no pet.).
Moreover, section 15.002 of the Civil Practice and Remedies Code, rather
than section 15.019, applies to this cause because the record, including Roberts’s
pleadings, demonstrates that his claims are based upon events that allegedly
occurred in Newton County, and Roberts’s pleadings do not establish that Roberts
was incarcerated in Wichita County when his alleged causes of action accrued.
See Tex. Civ. Prac. & Rem. Code Ann. §§ 15.002, 15.019. For all of these reasons,
we overrule Roberts’s first issue.
DISMISSAL WITH PREJUDICE AS FRIVOLOUS
In his second issue, Roberts argues that the trial court erred by dismissing
his case as frivolous, with prejudice. We review a trial court’s dismissal of an
inmate’s claims under Chapter 14 for an abuse of discretion. Leachman v. Dretke,
261 S.W.3d 297, 303 (Tex. App.—Fort Worth 2008, no pet.); Hickson v. Moya,
926 S.W.2d 397, 398 (Tex. App.—Waco 1996, no writ); see Tex. Civ. Prac. &
Rem. Code Ann. § 14.003 (West 2002). A trial court abuses its discretion if it acts
unreasonably or without reference to any guiding rules or principles. Leachman,
261 S.W.3d at 303. We review de novo whether the plaintiff’s claims have no basis
in law such that dismissal on that ground is authorized. See Retzlaff v. Tex. Dep’t of
5
Criminal Justice, 94 S.W.3d 650, 653 (Tex. App.—Houston [14th Dist.] 2002, pet.
denied).
Section 14.003(a)(2) of the Civil Practice and Remedies Code provides as
follows, in pertinent part: “A court may dismiss a claim, either before or after
service of process, if the court finds that . . . the claim is frivolous or malicious[.]”
Tex. Civ. Prac. & Rem. Code Ann. § 14.003(a)(2).
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 arguable basis in law or in fact;
(3) it is clear that the party cannot prove facts in support of the claim;
or (4) the claim is substantially similar to a previous claim filed by the
inmate because the claim arises from the same operative facts.
Id. § 14.003(b).
It is apparent from Roberts’s pleadings that Roberts sued the defendants for
alleged acts that would have been barred by prosecutorial immunity, judicial
immunity, official immunity, derived judicial immunity, or otherwise barred by
law. See Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 844 (Tex. 2007) (A
suit against a state official in his official capacity is the same as a suit against the
state entity the official represents.); Dallas Cnty. v. Halsey, 87 S.W.3d 552, 554
(Tex. 2002) (citing Stump v. Sparkman, 435 U.S. 349, 356-57, 98 S. Ct. 1099, 55
L. Ed. 2d 331 (1978)) (Judges have absolute immunity from liability for judicial acts
performed within the scope of their jurisdiction.); City of Lancaster v. Chambers,
6
883 S.W.2d 650, 653 (Tex. 1994) (Government employees are entitled to official
immunity from suit arising from the performance of their discretionary duties in
good faith when they are acting within the scope of their authority.); Albright v.
Tex. Dep’t of Human Servs., 859 S.W.2d 575, 579 (Tex. App.—Houston [1st Dist.]
1993, no writ) (State employees whose jobs are classified as quasi-judicial are
immune from suit when acting in good faith and within the scope of their
employment.); Miller v. Curry, 625 S.W.2d 84, 86-87 (Tex. App.—Fort Worth
1981, writ ref’d n.r.e.) (Prosecutors have absolute immunity from civil liability.).
Furthermore, a plaintiff who has been convicted of a criminal offense may not sue
his attorney for legal malpractice in connection with the conviction unless the
plaintiff has been exonerated on direct appeal, through post-conviction relief, or
otherwise. Peeler v. Hughes & Luce, 909 S.W.2d 494, 497-98 (Tex. 1995). Roberts
did not establish that he has been exonerated; in fact, as previously discussed, his
pleadings indicated that he was incarcerated when the pleadings were filed.
Finally, to establish a malicious prosecution claim arising from a criminal
prosecution, a plaintiff must show, among other elements, that the prosecution
terminated in his favor. See Richey v. Brookshire Grocery Co., 952 S.W.2d 515,
517 (Tex. 1997). In this case, Roberts’s own pleadings establish that the alleged
7
acts of which he complains culminated in his conviction of murder, so Roberts
could not successfully recover for malicious prosecution.
For all of these reasons, Roberts’s claims had no arguable basis in law or in
fact, and Roberts’s chance of success was slight. See Tex. Civ. Prac. & Rem. Code
Ann. § 14.003(b)(1), (12). Accordingly, the trial court did not abuse its discretion
by dismissing Roberts’s claims in their entirety as frivolous. A dismissal with
prejudice is proper when, as here, the trial court’s decision to dismiss is based on
the conclusion that the inmate’s claim has no arguable basis in law. See Hamilton
v. Williams, 298 S.W.3d 334, 340 (Tex. App.—Fort Worth 2009, pet. denied);
Fernandez v. T.D.C.J., 341 S.W.3d 6, 13 (Tex. App.—Waco 2010, pet. denied).
We overrule issue two and affirm the trial court’s order.
AFFIRMED.
______________________________
STEVE McKEITHEN
Chief Justice
Submitted on February 6, 2013
Opinion Delivered March 28, 2013
Before McKeithen, C.J., Gaultney and Horton, JJ.
8