Case Information
*0 FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS 12/15/2015 10:55:06 AM DEBBIE AUTREY Clerk *1 ACCEPTED 06-15-00062-cv SIXTH COURT OF APPEALS TEXARKANA, TEXAS 12/15/2015 10:55:06 AM No. 06-15-00062-CV DEBBIE AUTREY CLERK ___________________________________________________________________
IN THE COURT OF APPEALS SIXTH JUDICIAL DISTRICT TEXARKANA, TEXAS
___________________________________________________________________
ALLEN “F” CALTON,
Appellant
v. STEVE SCHILLLER, SHARON KELLER, TERRIE LIVINGSTON, LOUIS STURNS, JOHN CAYSE, BOB GILL, Appellees
___________________________________________________________________
On Appeal from the 67th District Court, Tarrant County, Texas Judge Donald J. Cosby Presiding Cause No. 153-270690-14
__________________________________________________________________
BRIEF OF APPELLEES’ SHARON KELLER, TERRY LIVINGSTON, JOHN CAYSE, BOB GILL AND LOUIS STURNS’ BRIEF ____________________________________________________________________
KEN PAXTON KAREN D. MATLOCK
Attorney General of Texas Assistant Attorney General
Chief, Law Enforcement Defense Division CHARLES E. ROY DEMETRI ANASTASIADIS*
First Assistant Attorney General Assistant Attorney General
State Bar No. 01164480 JAMES E. DAVIS P.O. Box 12548, Capitol Station
Deputy Attorney General for Civil Litigation Austin, Texas 78711
(512) 463-2080 / (512) 936-2109 Fax ATTORNEYS FOR DEFENDANTS-APPELLANTS *Attorney of Record
Oral Argument Requested *2 IDENTITY OF PARTIES AND COUNSEL APPELLANT Pro se : Allen F. Calton, TDCJ No. 1123880
APPELLEES: Steve Schiller, Sharon Keller, Terrie
Livingston, Louis Sturns ATTORNEYS FOR APPELLEES: Demetri Anastasiadis
Assistant Attorney General Office of the Attorney General of Texas Attorney for Sharon Keller, Terrie Livingston, Louis Sturns, Bob Gill and John Cayce Christopher Ponder Tarrant County Assistant District Attorney 401 Belknap Street Fort Worth, Texas 76196 Attorney for Steve Schiller ii
TABLE OF CONTENTS
Page Identity of Parties.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
Table of Authorities.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv, v, vi
Statutes, Rules and Codes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi
I. Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
II. Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
A. Appellee Judges’ Response to Appellant’s Issue No. 5: The trial court did not
abuse its discretion by denying leave to file appellant’s Ninth Amended Complaint. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 B. Appellee Judges’ Response to Appellant’s issues No. 4 and 6: The trial court
correctly granted Appellee Judges’ Motion to Dismiss. . . . . . . . . . . . . . . . . 3 Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Notice of Electronic Filing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Certificate of Service.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
iii *4 TABLE OF AUTHORITIES Case Page
Adams v. McIlhany,
593 F. Supp. 1025, 1032 (N.D. Tex. 1984). . . . . . . . . . . . . . . . . . . . . . . . . 10 Bonham State Bank v. Beadle,
907 S.W.2d 465, 467 (Tex. 1995).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 City of Los Angeles v. Lyons ,
461 U.S. 95, 112-113 (1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Cozzo v. Tangipahoa Parish Council–President Gov’t ,
279 F.3d 273, 280 (5th Cir. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Dallas County v. Halsey,
87 S.W.3d 553, 554 (Tex. 2002).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Delk v. Lehmberg,
No. 03–12–00678–CV, 2014 WL 1910314, at *3
(Tex. App.–Austin May 9, 2014, no pet.).. . . . . . . . . . . . . . . . . . . . . . . . . . 12 Di Portanova v. Monroe , st
229 S.W.3d 324, 330 (Tex. App.-Houston [1 Dist.] 2006, pet. den.).. . . . . 8 Forrester v. White,
484 U.S. 219 (1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Heck v. Humphrey,
512 U.S. 477 (1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 In accord are Operation Rescue v. Planned Parenthood ,
937 S.W.2d 60, 71-72 (Tex. App. – Houston [14 Dist.] 1996), aff’d as modified, 975 S.W.2d 546 (Tex. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . Koch v. Booth ,
273 S.W.3d 451 (Tex. App. – Austin 2008, pet. den.). . . . . . . . . . . . . . . . . 10 iv
Lujan v. Defenders of Wildlife ,
504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). . . . . . . . . . . . 8 McCarthy ex rel. Travis v. Hawkins ,
381 F.3d 407, 412, reh’g denied, 391 F.3d 676; (5th Cir. 2004). . . . . . . . . . 8 Mireles v. Waco,
502 U.S. 9 (1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6 Okpalobi v. Foster ,
244 F.3d 405, 421, 423, 425-426 (5th Cir. 2001).. . . . . . . . . . . . . . . . . . . 5, 8 Operation Rescue v. Planned Parenthood,
937 S.W.2d 60, 71-72 (Tex. App. – Houston [14 Dist.] 1996), aff’d as modified, 975 S.W.2d 546 (Tex. 1998). . . . . . . . . . . . . . . . . . . . . . . 9 Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc .,
506 U.S. at 146, 113 S.Ct. at 689 (1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Pulliam v. Allen,
466 U.S. 522, 542-544 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 7, 10 Roy v. Shannon,
No. 02–13–00238–CV, 2014WL 4105271, at *3
(Tex.App.–Fort Worth August 21, 2014, no pet.). . . . . . . . . . . . . . . . . . . . 12 Smith v. District Attorney Office for Wood Cnty. ,
No. 03–13–00220–CV, 2014 WL 5420536, at *2–3 (Tex. App.–Austin Oct. 24, 2014, pet. denied).. . . . . . . . . . . . . . . . . . . . . . 11 Smith v. 241st Dist. Ct. of Smith Cnty. ,
No. 03-13-00719-CV, 2015 WL 1611703 *2-3
(Tex. App. - Austin Apr. 9, 2015, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . 11 St. Paul Fire & Mar. Ins. Co. v. Texas Workers’ Comp. Comm’n .
945 S.W.2d 886, 888-89 (Tex. App. – Austin 1997, no writ) .. . . . . . . . . . . . . Stump v. Sparkman,
435 U.S. 349, 356-57 (1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 v
Texas Ass’n of Business v. Texas Air Control Board ,
852 S.W.2d 440, 444 (Tex. 1993).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Texas DPS v. Moore ,
985 S.W.2d 149, 153 (Tex. App. – Austin 1998, no pet.). . . . . . . . . . . . . . . 8 Town of Palm Valley v. Johson ,
87 S.W.3d 110, 111 (Tex. 2001).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Twilligear v. Carrell,
148 S.W.3d 502, 504
(Tex. App.—Houston [14 Dist. 2004, pet. denied). . . . . . . . . . . . . . . . . 5, 7 TNRCC v. IT-Davy ,
74 S.W.3d 849, 855 (Tex. 2002).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Vargas v. Texas Dept. of Criminal Justice,
2012 WL 5974078 *3 (Tex. App.-Austin,2012, no pet.). . . . . . . . . . . . . . . . 6 Statutes, Rules and Codes
Article III, Eleventh Amendment, U.S. Constitution. . . . . . . . . . . . . . . . . . . . . . . . 8
42 U.S.C. 1983. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Tex. Civ. Prac. & Rem. Code Ch. 14. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Tex. Civ. Prac. & Rem. Code Ch. 37. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Tex. Civ. Prac. & Rem. Code 37.003. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Tex. Civ. Prac. & Rem. Code 65.011. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9
Tex. R. App. P. 38.1(i). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
vi
No. 06-15-00062-CV
___________________________________________________________________
IN THE COURT OF APPEALS SIXTH JUDICIAL DISTRICT TEXARKANA, TEXAS
___________________________________________________________________
ALLEN “F” CALTON,
Appellant
v. STEVE SCHILLLER, SHARON KELLER, TERRIE LIVINGSTON, LOUIS STURNS, JOHN CAYSE, BOB GILL, Appellees
__________________________________________________________________
BRIEF OF APPELLEES’ SHARON KELLER, TERRY LIVINGSTON, JOHN CAYSE, BOB GILL AND LOUIS STURNS’ BRIEF __________________________________________________________________
TO THE HONORABLE JUSTICES OF THE SIXTH COURT OF APPEALS:
Appellee Judges Sharon Keller, Terrie Livingston, John Cayce, Bob Gill and Louis Sturns file this brief in support of the District Court’s dismissal of the suit
brought against them for actions taken in their official capacity as judicial officers of
the State of Texas.
I. Statement of the Case
Appellant Calton sued Judges Sharon Keller, Terrie Livingston, John Cayce, Bob Gill and Louis Sturns for injunctive relief under 42 U.S.C. 1983. The District
Court granted their Motion to Dismiss the suit against them filed on the basis of
judicial and sovereign immunity and lack of jurisdiction. Calton appeals the decision
of the district court.
II. Statement of Facts
Sharon Keller is the Presiding Judge of the Court of Criminal Appeals. Terrie Livingston is the Chief Justice of the Second Court of Appeals. John Cayce is a th
former justice on that court. Louis Sturns is the Presiding Judge of the 213 District
Court. Bob Gill is a former district court judge. Defendant Judges are sued in their
official capacity (CR. 197). On May 20, 2014, Calton was convicted of a attempted
murder and sentenced to life imprisonment by the 213 District Court of Tarrant
County. (CR. 17-18). The Second District Court of Appeals, Ft. Worth, Texas
affirmed his conviction in 2005 (CR. 17-18). He asserted in his Petition that
Defendant/Appellee Court Reporter Steve Schiller failed to provide him with a
complete appellate record compromising his right to due process and ability to
effectively challenge his conviction on appeal (CR. 199). [1]
Calton ‘s suit against the Judges are for acts taken by them while disposing of a case in which Plaintiff was a criminal defendant and appellant. The Judges moved
to dismiss the claims against them on the basis of judicial and sovereign immunity
which was granted by the District Court on May 21, 2014 (CR. 40).
*9 A. Appellee Judges’ Response to Appellant’s Issue No. 5:
The trial court did not abuse its discretion by denying leave to file appellant’s Ninth Amended Complaint. th
Appellant’s brief at page 45 claims that he tendered his 9 Amended Complaint for filing on May 21, 2015, a year after the district court dismissed his suit against the
Judges. He argues that this was error as to co-defendant/appellee Schiller but does
not argue that it was error as to the Appellee Judges and provides no authority
supporting an argument that it is an abuse of discretion for a trial court to deny leave
to amend, filed one year after the Court dismissed the defendants from the suit.
Appellant’s brief does not explain how the 9 Amended Complaint stated a claim against appellee Judges or defeats their judicial immunity. Arguments not
raised or briefed are deemed waived. In re Estate of Curtis, Deceased, 465 S.W.3d
357, 379 (Tex.App.—Texarkana 2015, pet. dism'd). (“The Texas Rules of Appellate
Procedure require an appellant to provide ‘a clear and concise argument for the
contentions made, with appropriate citations to authorities and to the record.’ See
Tex. R. App. P. 38.1(i). ‘Bare assertions of error, without argument or authority,
waive error.’”).
B. Appellee Judges’ Response to Appellant’s issues No. 4 and 6:
The trial court correctly granted Appellee Judges’ Motion to Dismiss. Appellant’s brief at page 49 argues that “Judicial immunity is not a bar to prospective injunctive relief against a judicial officer...” citing Pulliam v. Allen, 466
U.S. 522, 542-544 (1984).
The only relief that appears to have been sought against appellees Sharon Keller, the Presiding Judge of the Court of Criminal Appeals, Terrie Livingston, the
Chief Justice of the Second Court of Appeals, John Cayce, a former justice on that th
court, Louis Sturns, the Presiding Judge of the 213 District Court and Bob Gill, a
former district court judge is in the Eighth Amended Complaint, CR. 268-269:
IX Prayer For Relief
... (2) Enter an injunction that order the Plaintiff to to receive the out-of time-Appeal in accordance with the Tex.
R. App. P. that were in place at the time time ( sic ) Plaintiffs initial Appeal in 2004 and 2005 ( sic ) It should be further ordered that the out-of-Time-Appeal should comport to the demands of the 14 Amendment.
... (5) order such Additional relief, both general and special, legal and equitable, to which Calton may justly be entitled to including but not limited to crafting the equitable Injunctive and/or Injunction orders that will afford Calton to receive the complete and sufficient Record on Appeal. Plaintiff is to be provided at state expense. And the appointment of counsel on Appeal and the court ordered subsequent out-of time-Appeal to utilize said record of sufficient completeness.
Neither former Second Court of Appeals Justice John Cayce nor Bob Gill, a former district court judge currently serve on the respective courts. An order
enjoining them to require the items specified in the Eighth Amended Complaint
would be ineffectual as they are no longer in an official position so as to be able to
implement any of the orders sought by Calton. They may be dismissed form this suit
on this ground alone. Okpalobi v. Foster , 244 F.3d 405, 421, 423 (5th Cir. 2001).
Texas law holds that “judges acting in their official judicial capacity have immunity from liability and suit for judicial acts performed within the scope of their
jurisdiction.” Twilligear v. Carrell, 148 S.W.3d 502, 504 (Tex. App.—Houston [14
Dist. 2004, pet. denied), citing , Dallas County v. Halsey, 87 S.W.3d 553, 554 (Tex.
2002). “This immunity extends to actions that are done in error, maliciously, and
even in excess of the judge’s authority.” Id., citing, Stump v. Sparkman, 435 U.S.
349, 356-57 (1978). The immunity is overcome “only for actions that are: (1) non-
judicial, i.e., not taken in the judge’s official capacity; or (2) taken in the complete
absence of all jurisdiction.” Id, citing, Mireles v. Waco, 502 U.S. 9 (1991). “Whether
an act is judicial (or non-judicial) for this purpose is determined by the nature of the
act, i.e., whether it is a function normally performed by a judge, as contrasted from
other administrative, legislative, or executive acts that simply happen to be done by
judges.” Id., citing, Forrester v. White, 484 U.S. 219 (1988). Under Texas law,
“judicial acts include those performed by judges in adjudicating, or otherwise
exercising their judicial authority over, proceedings pending in their courts.” Id.,
citing, Mireles, 502 U.S. at 13.
In the Eighth Amended Complaint, Calton sued these judicial officers based on actions/omissions allegedly taken by the judges or their court in Plaintiff’s
underlying criminal case-a collateral attack on prior judicial rulings. A suit
challenging a criminal conviction may not be brought until and unless that conviction
has been set aside. [2]
While “judicial immunity is not a bar to prospective injunctive relief against a judicial officer acting in a judicial capacity or to attorney’s fees, for obtaining such
relief,” Twillinger, 148 S.W. 3d at 502, 504, f.n. 8, (Tex. App.-Houston [14th Dist.]
2004, pet. denied) citing, Pulliam v. Allen, 466 U.S. 522, 542-44 (1984)(emphasis
original), injunctions may not be issued by a district court in the role of a super
appellate court adjudicating the legality of decisions of the Court of Appeals, the
Court of Criminal Appeals or another district judge. The District Court did not have
authority to sit as an appellate court in the underlying action, to waive or alter
appellate time tables, appoint Calton appellate counsel, order the disregard of the
Texas Rules of Appellate Procedure or in any other way second guess, review or alter
decisions made by the Court of Appeals, Court of Criminal Appeals or another
*13 district judge. Moreover, the relief requested by the Eighth Amended Complaint
cannot be afforded by Judge Keller or Justice Livingston, neither of which can issue
decisions individually without a majority of the fellow judicial officers also joining
in any decisions.
The Texas Supreme Court has made it clear that “a declaratory judgment is appropriate only if a justiciable controversy exists as to the rights and status of the
parties and the controversy will be resolved by the declaration sought.” Bonham
State Bank v. Beadle, 907 S.W.2d 465, 467 (Tex. 1995). There was no justiciable
controversy in this case because the district court lacked jurisdiction to order
appellate and district court judges to suspend appellate deadlines, vacate their prior
rulings, appoint Calton an attorney, suspend the Texas Rules of Appellate Procedure
or order judicial officers to perform their duties in conformance with the directives
of a district judge. The Eighth Amended Complaint failed to establish a case or
controversy sufficient to give the district court jurisdiction over other district and
appellate court judges acting in their official capacity. Without the redress ability
elements of standing, a district court’s ruling would be an advisory opinion barred by
federal law, the Eleventh Amendment, Article III, U.S. Constitution and Texas law.
City of Los Angeles v. Lyons , 461 U.S. 95, 112-113 (1983);” Puerto Rico Aqueduct
& Sewer Auth. v. Metcalf & Eddy, Inc ., 506 U.S. at 146, 113 S.Ct. at 689 (1993);
Okpalobi , 244 F.3d at 425-426, citing Lujan v. Defenders of Wildlife , 504 U.S. 555,
560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); McCarthy ex rel. Travis v. Hawkins ,
381 F.3d 407, 412, reh’g denied, 391 F.3d 676; (5th Cir. 2004) (citing Cozzo v.
Tangipahoa Parish Council–President Gov’t , 279 F.3d 273, 280 (5th Cir. 2002).
Texas law, which tracks federal law on this issue holds that an allegation of past misconduct alone is not a substitute for the existence of a justiciable controversy
nor does it authorize a state court to issue an advisory opinion. Di Portanova v. st
Monroe , 229 S.W.3d 324, 330 (Tex. App.-Houston [1 Dist.] 2006, pet. den.) (If a
justiciable controversy does not exist, the trial court must dismiss the case for lack of
subject-matter jurisdiction.); Texas DPS v. Moore , 985 S.W.2d 149, 153 (Tex. App.–
Austin 1998, no pet.) (“A justiciable controversy must be distinguished from an
advisory opinion, which is prohibited under both the Texas and federal constitutions.
A judgment under the UDJA [Ch. 37 T EX . C IV . P RAC . & R EM . C ODE . Declaratory
Judgments] depends on a finding that the issues are not hypothetical or contingent,
and the questions presented must resolve an actual controversy.”). The absence in a
statute of the express prerequisites of equitable relief does not negate such
requirements. Town of Palm Valley v. Johnson , 87 S.W.3d 110, 111 (Tex. 2001)
(“Although...65.011(1) [T EX . C IV . P RAC . & R EM . C ODE - Injunction] does not
expressly make the lack of an adequate legal remedy a prerequisite for injunctive
relief, this requirement of equity continues. The statute does not permit injunctive
relief without the showing of irreparable harm otherwise required by equity.”).
Conjectural or speculative events will not support a claim for injunctive relief as such
claim is not justiciable under either Texas injunction statutes or the Uniform
Declaratory Judgment Act [65.011, 37.003 T EX . C IV . P RAC . & R EM . C ODE .]. St. Paul
Fire & Mar. Ins. Co. v. Texas Workers’ Comp. Comm’n . 945 S.W.2d 886, 888-89
(Tex. App. – Austin 1997, no writ).
To be entitled to injunctive relief, plaintiffs “...must show that harm is imminent. They must also establish that this imminent harm will be irreparable if the
injunction is not issued.” Operation Rescue v. Planned Parenthood , 937 S.W.2d 60,
71-72 (Tex. App. – Houston [14 Dist.] 1996), aff’d as modified, 975 S.W.2d 546
(Tex. 1998). “The UDJA [Ch. 37 T EX . C IV . P RAC . & R EM . C ODE .] is ‘merely a
procedural device for deciding cases already within the court’s jurisdiction.’ Texas
Ass’n of Business v. Texas Air Control Board , 852 S.W.2d 440, 444 (Tex. 1993). The
UDJA does not extend a court’s jurisdiction, and a litigant’s request for declaratory
relief does not alter a suit’s underlying nature.” Koch v. Booth , 273 S.W.3d 451 (Tex.
App. – Austin 2008, pet. den.) citing TNRCC v. IT-Davy , 74 S.W.3d 849, 855 (Tex.
2002). The Complaint makes no allegation sufficient to support equitable relief
under Texas law.
The United States Supreme Court has made it clear that there are limitations on the availability of equitable relief against a judge in his official capacity:
The limitations already imposed by the requirements for obtaining equitable relief against any defendant — a showing of an inadequate remedy at law and of a serious risk of irreparable harm, severely curtail the risk that judges will be harassed and their independence compromised.
Pulliam, 104 S.Ct. at 1978. Adams v. McIlhany, 593 F. Supp. 1025, 1032 (N.D. Tex.
1984).
The Eighth Amended Complaint made no showing of an inadequate remedy at law or a showing of a serious risk of irreparable harm. Any harm or prejudice in the
procedure resulting in the compromise of Calton’s appeal is properly directed to the
Court of Appeals and the Court of Criminal Appeals, through the appellate process
with the Court acting as a body and litigated in accordance with the Texas Rules of
Appellate Procedure. The appellate process and procedure in its resolution of an
individual case, cannot be challenged by suing individual judicial officers, even when
the Court, acting as a body, issues arguably erroneous judicial decisions . Calton’s
request for equitable relief should was properly dismissed on the basis of judicial
immunity and for lack of subject matter jurisdiction.
Instructive in this regard is Smith v. 241st Dist. Ct. of Smith Cnty., No. 03-13-00719-CV, 2015 WL 1611703 *2-3 (Tex. App. - Austin Apr. 9, 2015, no pet.).
In that case, Smith sought injunctive and declaratory relief for violations of “due
course of law and the constitution of the United States.”, declarations that his
constitutional rights were violated in the underlying criminal proceedings against
him, an injunction requiring the District Courts to order the remand of his criminal
case and to set aside the judgment “as being void for state and federal constitutional
violations in criminal proceeding” and an injunction requiring the District Court to
admit that Smith's constitutional rights were violated in the criminal proceedings.
The Court of Appeals concluded that Smith's claims for injunctive and declaratory relief were based on past actions, and made retrospective claims and
therefore not actionable, citing Smith v. District Attorney Office for Wood Cnty. , No.
03–13–00220–CV, 2014 WL 5420536, at *2–3 (Tex. App.–Austin Oct. 24, 2014, pet.
denied) (alleged claims for declaratory and injunctive relief based on past acts did
not invoke ultra vires claim); Delk v. Lehmberg, No. 03–12–00678–CV, 2014 WL
1910314, at *3 (Tex. App.–Austin May 9, 2014, no pet.); Roy v. Shannon, No.
02–13–00238–CV, 2014WL 4105271, at *3 (Tex. App.–Fort Worth August 21, 2014,
no pet.) (upholding dismissal of inmate's suit against judge and district attorney and
explaining that ultra vires exception to immunity does not permit relief for acts and
omissions already committed).
CONCLUSION Calton’s appellate brief provides no authority supporting the reversal of the District Court’s Order dismissing the suit against appellees’ Sharon Keller,
Presiding Judge of the Court of Criminal Appeals, Terrie Livingston, Chief Justice
of the Second Court of Appeals, John Cayce, a former justice on that court, Louis
Sturns, Presiding Judge of the 213 District Court and Bob Gill, a former district
court judge. Judicial and sovereign immunity and the absence of a justiciable
controversy bar a district court suit against judicial officers seeking an injunction
requiring them to perform their judicial duties in a manner prescribed by a district
court. The district court lacked jurisdiction to order other courts to suspend the Texas
Rules of Appellate Procedure, require the Court of Criminal Appeals or the Court of
Appeals to waive deadlines and appellate time tables, appoint Calton an appellate
lawyer or in any other way direct the performance of individual Judges and Justices’
judicial duties. Accordingly, the district court’s decision should be affirmed.
Respectfully submitted, KEN PAXTON
Attorney General of Texas CHARLES E. ROY First Assistant Attorney General JAMES E. DAVIS Deputy Attorney General for Civil Litigation *19 KAREN D. MATLOCK Assistant Attorney General Chief, Law Enforcement Defense Division /s/ Demetri Anastasiadis DEMETRI ANASTASIADIS Assistant Attorney General Attorney-In-Charge Texas State Bar No. 01164480 Demetri.Anastasiadis@texasattorneygeneral.gov Law Enforcement Defense Division P.O. Box 12548, Capitol Station Austin, Texas 78711 (512) 463-2080 / Fax (512) 936-2109 ATTORNEYS FOR DEFENDANTS/APPELLEES SHARON KELLER , JOHN CAYCE, BOB GILL AND LOUIS STURNS NOTICE OF ELECTRONIC FILING I, DEMETRI ANASTASIADIS, Assistant Attorney General of Texas, do hereby certify that I have electronically submitted for filing a true and correct copy
of the above and foregoing in accordance with File & Serve Xpress the E-filing
service provider for the Court of Appeals Sixth Judicial District, Texarkana, Texas,
on this the 15 day of December 2015.
/s/ Demetri Anastasiadis DEMETRI ANASTASIADIS Assistant Attorney General *20 CERTIFICATE OF SERVICE I, DEMETRI ANASTASIADIS, Assistant Attorney General of Texas, do hereby certify that a copy of the above and foregoing Brief of Appellees’ Sharon
Keller, Terry Livingston, John Cayse, Bob Gill and Louis Sturns’ Brief has been
served by placing the same in the United States Postal Service, postage prepaid, on
this the 15 day of December, 2015, addressed to:
Allen “F” Calton, TDCJ No. 1123880
TDCJ - Stiles Unit
3060 FM 3514
Beaumont, Texas 77705
Appearing Pro se
/s/ Demetri Anastasiadis DEMETRI ANASTASIADIS Assistant Attorney General
[1] The district court granted co-appellee Steve Schiller’s Chapter 14 Tex. Civ. Prac. & Rem. Code Motion to Dismiss on June 1, 2015 (CR. 450).
[2] Heck v. Humphrey, 512 U.S. 477 (1994). (civil rights claim that implies the invalidity of his conviction must show it has been reversed, expunged or otherwise invalidated.); Vargas v. Texas Dept. of Criminal Justice, 2012 WL 5974078 *3 (Tex. App.-Austin,2012, no pet.) (An inmate cannot bring a civil action for damages that challenge the lawfulness of his conviction or confinement.)