Edward L. Teague v. Brad Livingston and Rissie Owens ( 2010 )

Opinion issued October 14, 2010

In The

Court of Appeals

For The

First District of Texas

————————————

NO. 01-10-00075-CV

———————————

Edward L. Teague, Appellant

V.

Brad Livingston and Rissie Owens, Appellees

On Appeal from the 412th District Court

Brazoria County, Texas

Trial Court Case No. 51672

MEMORANDUM OPINION

Appellant, Edward L. Teague,[1] an inmate in the Texas Department of Criminal Justice – Institutional Division (the “Department”), challenges the trial court’s order dismissing his lawsuit for a declaratory judgment and injunctive relief against appellees, Brad Livingston and Rissie Owens, for the violation of his civil rights[2] by an ex post facto punishment through the retroactive application of new parole procedures[3] to his future parole reviews.  In six points of error, Teague contends that the trial court erred in not issuing a “memorandum opinion, or findings of fact and conclusions of law,” and in dismissing his suit as appellees are not entitled to sovereign immunity, appellees are not entitled to official immunity, and his ex post facto claim is “not foreclosed.”

We affirm.

Background

In his amended petition, Teague seeks a declaratory judgment and injunctive relief against Owens, the Texas Board of Pardons and Paroles’ Presiding Officer, and Livingston, the Department’s Executive Director, in their individual and official capacities for violation of his civil rights by the retroactive application of Texas Government Code section 508.046 and Texas Board of Pardons and Paroles Policy 96-9.01.[4]  Teague alleges that the application of these procedures to his future parole reviews constitutes an unconstitutional ex post facto punishment and his parole reviews should be governed by the parole statutes in place at the time of his conviction.  

In their plea to the jurisdiction, appellees asserted that the trial court lacked subject matter jurisdiction on the grounds that they enjoyed qualified, official, and sovereign immunity.  They also argued that Teague’s complaint should be dismissed with prejudice because it is “frivolous” as a matter of law.[5]  After a hearing, the trial court dismissed Teague’s lawsuit “with prejudice” for “want of jurisdiction.”  Subsequently, the trial court denied Teague’s request for findings of fact and conclusions of law, noting that “since no evidentiary hearing was held – no findings of fact and conclusions of law required.” 

Standard of Review

A court may dismiss an inmate’s claim as frivolous when the claim has no arguable basis in law or in fact.  See Tex. Civ. Prac. & Rem. Code Ann. §14.003(a)(2), (b)(2) (Vernon 2002).  We review a dismissal under chapter 14 for an abuse of discretion.  Leachman v. Dretke, 261 S.W.3d 297, 303 (Tex. App.—Fort Worth 2008, no pet.).  

We review a trial court’s disposition of a plea to the jurisdiction under a de novo standard of review.  See Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998); Reese v. City of Hunter’s Creek Vill., 95 S.W.3d 389, 391 (Tex. App.—Houston [1st Dist.] 2003, pet. denied).  When reviewing a trial court’s ruling on a plea to the jurisdiction, we consider the facts alleged by the plaintiff and, to the extent relevant to the jurisdictional issues, any evidence submitted by the parties.  Am. Acad. of Emergency Med. v. Mem’l Hermann Healthcare, 285 S.W.3d 35, 40–41 (Tex. App.—Houston [1st Dist.] 2009, no pet.).  “Whether a pleader has alleged facts that affirmatively demonstrate a trial court’s subject matter jurisdiction is a question of law that we review de novo.”  Id. at 40.

Findings of Fact and Conclusions of Law

In his first point of error, Teague argues that, upon his request, the trial court had a mandatory duty to file findings of fact and conclusions of law. See Tex. R. Civ. P. 296. 

In any nonjury case tried in a district or county court “the judge shall, at the request of either party, state in writing his findings of fact and conclusions of law.”  Id.  Additionally, “When demand is made therefor the court shall prepare its finding of facts and conclusions of law and file same within thirty days after the judgment is signed.”  Tex. R. Civ. P. 297.

However, there is no “duty on [a] trial court to file findings of fact or conclusions of law where there has been no trial.”  Kendrick v. Lynaugh, 804 S.W.2d 153, 156 (Tex. App.—Houston [14th Dist.] 1990, no pet.); Kaminetzky v. Park Nat’l Bank of Houston, No. 01-03-01079-CV, 2005 WL 267665, at *5 (Tex. App.—Houston [1st Dist.] Feb. 3, 2005, no pet.) (mem. op.) (“Where no trial has occurred, the trial court is under no duty to file findings of fact and conclusions of law”).  A plea to the jurisdiction is similar to a summary judgment, in which findings of fact and conclusions of law are not necessary, because “there are no facts to find,” and the “legal grounds are limited to those stated in the motion and response.”  IKB Indus. (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 441 (Tex. 1997) (asserting that there is no need for findings of fact in the context of summary judgment).  In such instances, “a party is not entitled to findings and conclusions . . . because judgment must be rendered as a matter of law.”  Id. at 442.  When judgment is entered on the pleadings, requests for findings and conclusions “can have no purpose, should not be filed, and if filed, should be ignored by the trial court.”  Id.  Here, the trial court dismissed Teague’s case without a trial and without holding an evidentiary hearing, and it was not required to file findings of fact and conclusions of law.  Accordingly, we hold that the trial court did not err in denying Teague’s request for findings of fact and conclusions of law.

We overrule Teague’s first point of error.

Ex Post Facto Punishment

          In his sixth point of error, Teague argues that the trial court erred in dismissing his claims against appellees because he is attacking “the retroactive application of [section] 508.046 in its entirety” and the claims are not, as asserted by appellees, “foreclosed” under Wallace v. Quarterman, 516 F.3d 351 (5th Cir. 2008).  Teague asserts that the application of Texas Government Code section 508.046 constitutes an ex post facto punishment because it “states in clear and explicit language that it only applies to those offenders whose offenses were committed prior to the statute’s enactment.”  He further asserts that appellees “simply ignored these statutory mandates.”

Appellees assert that Teague has presented no evidence that the retroactive application of section 508.046 constitutes an ex post facto punishment.  They argue that the trial court did not err in dismissing Teague’s claims because section 508.046 is not unconstitutional on its face as held in both federal and state courts and is not unconstitutional as applied to Teague based on his “conjectural argument.”

Courts employ a two-prong test to determine if a person or entity’s actions fall under 42 U.S.C. § 1983.  Retzlaff v. Tex. Dep’t of Criminal Justice, 135 S.W.3d 731, 744 (Tex. App.—Houston [1st Dist.] 2003, no pet.).  First, a court must determine whether the conduct complained of was committed by a person acting under color of state law.  Id.  Second, it must determine whether this conduct deprived a person of rights, privileges, or immunities secured by the United States Constitution or the laws of the United States.  Id.

The United States Constitution prohibits the enactment of ex post facto laws. U.S. Const. art. 1, § 10, cl. 1.  One purpose of the prohibition against ex post facto laws is to “bar enactments which, by retroactive operation, increase the punishment for a crime after its commission.”  Garner v. Jones, 529 U.S. 244, 249, 120 S. Ct. 1362, 1367 (2000).  However, not every retroactive procedural change creating a risk of affecting an inmate’s terms or conditions of confinement is prohibited.  Id. at 250, 120 S. Ct. at 1368.  In order for a violation to occur there must be “a sufficient risk of increasing the measure of punishment attached to covered crimes.”  Id.

The retroactive application of parole laws has been at issue in several cases.  In Wallace, the United States Court of Appeals for the Fifth Circuit held that “[r]ules affecting eligibility for parole may violate the clause, but discretionary rules affecting suitability do not.”  516 F.3d at 355.  Parole rules that have been found to violate the Ex Post Facto Clause are those that have resulted in an extension of the time necessary to become eligible for release.  See Lynce v. Mathis, 519 U.S. 433, 449, 117 S. Ct. 891, 899 (1997) (holding that law that negated early release credits resulting in defendant being rearrested after release was unconstitutional when applied to individuals convicted before its enactment); Weaver v. Graham, 450 U.S. 24, 28, 101 S. Ct. 960, 964 (1981) (holding that statutory changes to the manner in which prisoners accumulated gain-time credits is an ex post facto punishment).

Specifically, the retroactive application of section 508.046 has previously been addressed by both federal and state intermediate courts. [6]  See Wallace, 516 F.3d at 354; Nabalek v. Garrett, No. 14-01-00764-CV, 2003 WL 21710243, at *2 (Tex. App.—Houston [14th Dist.] July 24, 2003, pet. denied) (mem. op.).  Several courts have found that the retroactive application of parole laws, including section 508.046, does not constitute an ex post facto punishment.  See Garner, 529 U.S. at 253, 120 S. Ct. at 1369 (holding that changes in parole suitability proceedings do not create more than a speculative attenuated risk of affecting a prisoner’s actual term of confinement); Cal. Dep’t of Corrs. v. Morales, 514 U.S. 499, 507–514, 115 S. Ct. 1597, 1602–05 (1995) (stating that increases in minimum number of years in which parole decisions must be reconsidered do not violate the ex post facto prohibition where they do not modify the statutory punishment imposed or standards for determining criteria for, or initial date, or parole eligibility); Goodrich v. Livingston, 294 Fed. Appx. 983, 985 (5th Cir. 2008) (holding that retroactive application of section 508.046 does not violate the Ex Post Facto Clause because it is discretionary rule addressing a prisoner’s ‘suitability, not eligibility, for parole’” (quoting Wallace, 516 F.3d at 355–56)); Wallace, 516 F.3d at 355–56 (stating that section 508.046 addresses suitability, not eligibility, therefore the increase in board size does not constitute an ex post facto punishment); Simpson v. Ortiz, 995 F.2d 606, 610 (5th Cir. 1987) (holding that changes in parole commission guidelines on suitability of parole do not violate the Ex Post Facto Clause); Nabalek, 2003 WL 21710243, at *2 (stating that “application of section 508.046 does not alter any of the determinants of parole timing or eligibility, but only how many board members will participate in the decision,” and “it presents an even more speculative and attenuated possibility of increasing punishment than the amendments upheld in Garner and Morales”).

Teague argues that his claims are not barred under Wallace because, unlike Wallace, Teague is not “challeng[ing] the denial of parole” on the basis of an “increase of the number of voting members.”  Instead, he is challenging the “retroactive application of the entire statute.”  Wallace challenged the increase of the board size from three to eighteen members.  516 F.3d at 353.  The court noted that the language in the amended code sections “does not alone show a significant risk of increased confinement,” but “a court must look to the specific facts of the case, if a claimant has presented such facts, to determine whether a new law produces a sufficient risk of increased confinement.” Id. at 356.  The court denied Wallace relief because the evidence provided was only “speculative evidence” that the rules would result in increased punishment.  Id.  Teague claims that because Wallace did not challenge the percentage vote required and only challenged the increase in the size of the parole board, the reasoning is not directly applicable here.

However, like Wallace, Teague has provided nothing more than mere conjecture and speculation regarding the application of section 508.046 to any future parole determinations.  At the time of Teague’s conviction, the statute provided that the board may act in panels of three.  The statute did not guarantee a parole determination by a board of three, and Teague has provided no evidence that, with a board of three, he would be released.  Teague must show that there is “a sufficient risk of increasing the measure of punishment attached to covered crimes.”  See Garner, 529 U.S. at 249, 120 S. Ct. at 1367.  Teague’s argument that a change in the percentage of votes required by the parole board for him to gain release in the future is nothing more than a re-characterization of arguments regarding the increase in board size, which have been rejected.  See Goodrich, 294 Fed. Appx. at 985; Wallace, 516 F.3d at 353; Nabalek, 2003 WL 21710243, at *2.

In sum, Teague, like Wallace, has failed to allege any facts that would tend to show that there is a substantial likelihood that his actual punishment will be increased under section 508.046.  Despite Teague’s attempts to distinguish his case from Wallace, the reasoning of Wallace properly applies to Teague’s ex post facto complaint.  We conclude that Teague’s claims against appellees are frivolous in that they have no arguable basis in law or in fact.  See Tex. Civ. Prac. & Rem. Code Ann. § 14.003(a)(2), (b)(2).

Accordingly, we hold that the trial court did not err in dismissing Teague’s claims.  See Buttles v. Navarro, 766 S.W.2d 893, 895 (Tex. App.—San Antonio 1989, no pet.) (“the appellate court is not bound by the reason given by the trial court in support of its judgment if the judgment is sustainable for any reason”).

We overrule Teague’s sixth point of error.  Having overruled Teague’s sixth point of error, we need not address his second, third, fourth and fifth points of error.

Conclusion

We affirm the order of the trial court.

                                                                   Terry Jennings

                                                                   Justice

Panel consists of Justices Jennings, Alcala, and Sharp.

---

[1]           Teague represents himself on appeal.

[2]           See 42 U.S.C. § 1983.

[3]           See Tex. Gov’t Code Ann. § 508.046 (Vernon Supp. 2010); see also Texas Board of Pardons and Paroles, Board Policy 145.200, available at http://www.tdcj.state.tx.us/bpp/policies_directives/POL%20145.200%20_SB%2045.pdf.

[4]           This policy is no longer in effect and has since been replaced by Texas Board of Pardons and Parole Policy 145.200.

[5]           See Wallace v. Quarterman, 516 F.3d 351, 355 (5th Cir. 2008).

[6]           In support of his argument, Teague cites Wion v. Dretke, #MO-05-CV-146 (W.D. Tex. 2007).  This is an unpublished district court decision, it has no precedential value, and the United States Court of Appeals for the Fifth Circuit has reversed the case on other grounds.  See Wion v. Quarterman, 567 F.3d 146 (5th Cir. 2009).