Case Information
*0 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 9/8/2015 5:17:16 PM JEFFREY D. KYLE Clerk No. 03-1500343-CV THIRD COURT OF APPEALS 9/8/2015 5:17:16 PM JEFFREY D. KYLE AUSTIN, TEXAS 03-15-00343-CV *1 ACCEPTED [6834820] CLERK In the Court of Appeals For the Third District of Texas At Austin, Texas ___________________________________ E DDIE D ON J OHNSON ,
Appellant ,
v.
T HE TATE OF T EXAS ,
Appellee . ____________________________________ On Direct Appeal from the 200th Judicial District Court of Travis County, Texas Trial Court Cause No. D-1-GN-13-001602 ____________________________________ A PPELLEES ’ B RIEF
____________________________________ K EN P AXTON *J ENNIFER L. D ANIEL
Attorney General of Texas
State Bar No. 24090063 HARLES E. R OY First Assistant Attorney General Office of the Attorney General
P.O. Box 12548 J AMES E. D AVIS Austin, Texas 78711-2548
Deputy Attorney General Tel: (512) 463-2080
for Civil Litigation Fax: (512) 936-2109
Jennifer.Daniel@texasattorney K AREN D. M ATLOCK general.gov
Chief, Law Enforcement
Defense Division Counsel for Appellees
*Attorney-In-Charge ORAL ARGUMENT NOT REQUESTED *2 I DENTITY OF P ARTIES & OUNSEL Appellant :
Eddie Don Johnson , No. 00364033
TDCJ – James A. Lynaugh Unit
1098 S. Highway 2037
Fort Stockton, Texas 79735
Plaintiff Pro Se
Appellees :
The State of Texas—Texas Department of Criminal Justice (TDCJ)
TDCJ Board of Pardons and Parole
P. O. Box 13401
Austin, Texas 78711-3401
Attorney for Appellees:
Jennifer L. Daniel
State Bar No. 24090063
Law Enforcement Defense Division
P. O. Box 12548, Capitol Station
Austin, Texas 78711
(512) 463-2080 / (512) 936-2109 Fax
ii
T ABLE OF ONTENTS
Page Identity of Parties and Counsel…………………………………………………….ii
Table of Contents ………………………………………………………………....iii
Index of Authorities………………………………………………………………..iv
Statement of the Case………………………………………………………………1
Issues Presented………………………………………………………………….....2
I. Whether TDCJ is entitled to sovereign immunity for the claims brought against it pursuant to Texas Government Code Section 2001.038..…………………………………………………………….......2 Statement of Facts………………………………………………………………......2
Summary of the Argument…………………………………………………………2
Standard of Review………………………………………………………………...3
Argument…………………………………………………………………………...3
1. Offender Johnson pled facts affirmatively demonstrating that his claim falls outside Section 2001.038 of the APA, and his claim is barred by sovereign immunity…...…………………………...….………………….3 Conclusion………………………………………………………………………….5
Notice of Electronic Filing…………………………………………………………6
Certificate of Compliance…………………………………………………………..6
Certificate of Service…………………………………………………………….....7
iii *4 INDEX OF AUTHORITIES Cases Page
Tex. Parks & Wildlife Dep’t v. Gallacher,
2015 WL 1026473 (Tex.App.—Austin Mar. 4, 2015, no pet.) ............................. 3
Mission Consol. Indep. Sch. Dist. v. Garcia ,
372 S.W.3d 629 (Tex.2012).................................................................................... 3
Texas Dep’t of Transp. v. Sefzik ,
355 S.W.3d 618 (Tex. 2011) .................................................................................. 3
Hernandez v. Tex. Dep't of Criminal Justice ,
2014 WL 711028 (Tex.App. . —Austin Feb. 19, 2014, no pet.) ............................. 4
Rules, Codes, and Statutes
Tex. Gov’t Code § 2001.226. ..................................................................................... 4
Tex. Gov’t Code § 2001.038(a), (c) ........................................................................... 3
Tex. Gov’t Code § 2001.223(3). .............................................................................. 4
iv *5 ___________ _________________________ E DDIE D ON J OHNSON ,
Appellant ,
v.
T HE S TATE OF T EXAS ,
Appellee . ___________________________________ On Direct Appeal from the 200th Judicial District Court of Travis County, Texas Trial Court Cause No. D-1-GN-13-001602 ____________________________________ A PPELLEE ’ S B RIEF
____________________________________ TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS,
AUSTIN:
Appellee Texas Department of Criminal Justice (“TDCJ”), through the Office of the Attorney General, submits this brief in support of the trial court’s judgment
dismissing this case. Appellee asks this Court to affirm the lower court’s dismissal. TATEMENT OF THE ASE
Appellant, Eddie Don Johnson, proceeding pro se and in forma pauperis , filed suit in the 200th Judicial District Court of Travis County, Texas. See Plaintiff’s
Original Petition , C.R. at 5. Offender Johnson brings a suit against TDCJ pursuant
to Texas Government Code Section 2001.038 of the Administrative Procedures Act
(APA) seeking a declaration that TDCJ’s application of Special Condition X SISP
to his parole was invalid. Id .
Appellee answered and filed an Amended Plea to the Jurisdiction. See
Defendants Amended Plea to the Jurisdiction , C.R. at 240. On May 13, 2015, the
Honorable Charles R. Ramsey granted Appellee’s plea to the jurisdiction and issued
a final judgment dismissing the case. C.R. at 249. On June 1, 2015, Appellant filed
his Notice of Appeal. C.R. at 251.
I SSUE P RESENTED
I. Whether TDCJ is entitled to sovereign immunity for the claims brought
against it pursuant to Texas Government Code Section 2001.038. S TATEMENT OF F ACTS
On January 16, 2004, Offender Johnson was released from TDCJ custody to mandatory supervision. C.R. at 7. The Board of Pardons and Parole issued an order
imposing Special Condition X SISP on his parole on December 11, 2003. Id . On
the day of his release, Offender Johnson was provided with notice of the imposition
of special condition X SISP being applied to him. Id . Offender Johnson was arrested
on August 4, 2004. Id . On March 25, 2005, his discretionary mandatory supervision
was revoked. C.R. at 8. He was returned to TDCJ custody on April 8, 2005. Id . UMMARY OF THE A RGUMENT
The record supports the trial court’s judgment in dismissing Appellant’s suit for lack of subject matter jurisdiction. Appellant failed to overcome TDCJ’s
entitlement to sovereign immunity. The court below appropriately applied the law,
and the judgment should be affirmed. TANDARD OF R EVIEW
Whether a trial court has subject-matter jurisdiction is a question of law reviewed de novo . Tex. Parks & Wildlife Dep’t v. Gallacher , 2015 WL 1026473, at
*3 (Tex.App.—Austin Mar. 4, 2015, no pet.) (citing Mission Consol. Indep. Sch.
Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex.2012).). Accordingly, the grant of the
plea to jurisdiction should be reviewed de novo. Id .
A RGUMENT
1. Offender Johnson pled facts affirmatively demonstrating that his claim falls outside Section 2001.038 of the APA, and his claim is barred by sovereign immunity.
Sovereign immunity deprives Texas courts of subject-matter jurisdiction to adjudicate any suit against the State or its agencies or subdivisions, absent legislative
waiver. Texas Dep’t of Transp. v. Sefzik , 355 S.W.3d 618, 620 (Tex. 2011).
Offender Johnson attempts to rely on APA section 2001.038 to bring his challenge to Condition X SISP being applied to his parole. C.R. at 5. Texas
Government Code Section 2001.038 waives sovereign immunity to the extent it
authorizes “an action for declaratory judgment against a state agency to determine
the validity or applicability of a rule if it is alleged that the rule or its threatened
application interferes with or impairs, or threatens to interfere with or impair, a legal
right or privilege of the plaintiff.” Hernandez v. Tex. Dep't of Criminal Justice , 2014
WL 711028 at *2 (Tex.App.— Austin Feb. 19, 2014, no pet.) (internal quotations
omitted) (citing Tex. Gov’t Code § 2001.038(a), (c)). It is unnecessary, however, to
analyze whether the imposition of Special Condition X SISP constitutes a “rule”
under the statute because the Legislature explicitly exempted this type of case from
the APA. In § 2001.226, the Legislature specifically stated, “This chapter does not
apply to a rule or internal procedure of [TDCJ] or Texas Board of Criminal Justice
that applies to an inmate or any other person under the custody or control of the
department or to an action taken under that rule or procedure.” Tex. Gov’t Code §
2001.226. Additionally, the APA states that Section 2001.038 is inapplicable to “a
hearing or interview conducted by the Board of Pardons and Paroles or [TDCJ]
relating to the grant, rescission, or revocation of parole or other form of
administrative release.” Tex. Gov’t Code § 2001.223(3).
Offender Johnson’s sole allegation of interference with or impairment of a legal right or privilege is based on the revocation of his parole as a result of violations
of Special Condition X SISP. As a matter of law, no action can lie under Section
2001.038 based on this alleged rule violation. Offender Johnson has pled facts
affirmatively demonstrating that his claim falls outside Section 2001.038, and his
claim is barred by sovereign immunity.
CONCLUSION
The Texas Department of Criminal Justice is entitled to sovereign immunity.
Therefore, the trial court jurisdiction over them, and they appropriately dismissed
Offender Johnson’s petition. The judgment 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 KAREN D. MATLOCK Chief, Law Enforcement Defense Division /s/ JENNIFER L. DANIEL JENNIFER L. DANIEL Assistant Attorney General Attorney-in-Charge State Bar No.24090063 Jennifer.Daniel@texasattorneygeneral.gov P. O. Box 12548, Capitol Station Austin, Texas 78711 (512) 463-2080 / (512) 936-2109 Fax ATTORNEYS FOR APPELLEE *10 NOTICE OF ELECTRONIC FILING I, JENNIFER L. DANIEL , 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 Appellees’ Brief in accordance with the electronic filing
system for the Third Court of Appeals on this the 8 th day of September, 2015.
/ s/ JENNIFER L. DANIEL JENNIFER L. DANIEL Assistant Attorney General R ULE 9.4( I ) ERTIFICATE OF C OMPLIANCE I certify that this computer-generated document, accounting for Rule 9(i)(1)’s inclusions and exclusions, is 1,496 words, as calculated by Microsoft Word 2013,
the computer program used to prepare this document.
/ s/ JENNIFER L. DANIEL
JENNIFER L. DANIEL ERTIFICATE OF ERVICE I, JENNIFER L. DANIEL , Assistant Attorney General of Texas, certify that a true and correct copy of the above and foregoing Appellees’ Brief has been served
by placing it in the United States Mail, postage prepaid, on this the 8 th day of
September, 2015 , addressed to:
Eddie Don Johnson TDCJ No. 00364033
TDCJ – James A. Lynaugh Unit
1098 S. Highway 2037
Fort Stockton, Texas 79735
Plaintiff Pro Se
/ s/ JENNIFER L. DANIEL JENNIFER L. DANIEL