Harry L. Bowles v. The State of Texas--Appeal from 61st District Court of Harris County

Opinion issued August 17, 2006

In The

Court of Appeals

For The

First District of Texas

NO. 01-04-00801-CV

HARRY L. BOWLES, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 61st District Court

Harris County, Texas

Trial Court Cause No. 2002-44780

MEMORANDUM OPINION

In this appeal, we consider whether appellant, Harry L. Bowles, has standing to seek a judgment declaring that sections 51.901 and 51.903 of the Texas Government Code and section 32.49 of the Texas Penal Code [collectively, the Texas Lien Release Law ] are unconstitutional. We affirm the trial court s judgment dismissing Bowles s claims.

BACKGROUND

The underlying declaratory judgment action is the latest in series of legal proceedings between Bowles and his former business partner, Charles N. Schwartz, Jr. As part of the ongoing business dispute, Bowles filed three liens against property owned by Schwartz in 1994. Schwartz filed a Motion for Judicial Review of Documentation or Instrument Purporting to Create a Lien or Claim pursuant to section 51.901 of the Texas Government Code, which was assigned to the 333rd District Court of Harris County. On August 9, 1998, the trial court issued findings of fact and conclusions of law, in which it found that [t]here is no valid lien or claim created by this documentation or instrument. It is not clear from the record whether Bowles appealed this August 9, 1998 ruling. // Schwartz or his attorney, Grant Cook, notified Bowles of the trial court s ruling and demanded that he remove the liens. Bowles refused to do so.

In 1998 and 1999, the District Attorneys of Harris County, Grimes County, and Brazoria County demanded that Bowles release the liens within 21 days. Again, Bowles refused to do so. Bowles was then indicted in Harris County for Refusing to Execute Release of Fraudulent Lien or Claim. The indictment tracked the language of Texas Penal Code section 32.49 and provided as follows:

Harry Louis Bowles, hereafter styled the defendant, heretofore on or about May 26, 1998, did then and there unlawfully, with intent to defraud and harm another, own, hold, and was the beneficiary of a purported lien and claim asserted against real property and personal property that was fraudulent as described by Section 51.901(c) of the Texas Government Code, and did refuse to execute the release of the fraudulent lien and claim upon the request of Charles N. Schwarz, a person owning an interest in the property described in the document and instrument that is the basis of the lien and claim, after the expiration of twenty-one days following the date of receipt of actual notice from Charles N. Schwarz requesting the execution of a release of the fraudulent lien and claim.

After a trial by jury, Bowles was convicted of the Class A misdemeanor offense. He served four days in jail and paid a $1000 fine. His conviction was affirmed by the Fourteenth Court of Appeals, and the Texas Court of Criminal Appeals refused to hear his petition for discretionary review. See Bowles v. State, No. 14-99-01396-CR, 2001 WL 1047026, *1 (Tex. App. Houston [14th Dist.] Sept. 13, 2001, pet. ref d) (not designated for publication).

Bowles then filed his petition for declaratory judgment seeking to have the Lien Release Law declared unconstitutional. In a no-evidence motion for summary judgment, the State argued, among other grounds, that Bowles had no standing to bring his declaratory judgment. The trial court granted the State s motion and dismissed Bowles s claims. This appeal followed.

PROPRIETY OF DISMISSAL

In his first issue on appeal, Bowles argues that the trial court erred in granting the State s no-evidence motion for summary judgment on the basis of standing. Standard of Review

A no-evidence motion for summary judgment is essentially a directed verdict granted before trial, to which we apply a legal sufficiency standard of review. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003); Jackson v. Fiesta Mart, Inc., 979 S.W.2d 68, 70 (Tex. App. Austin 1998, no pet.). In general, a party seeking a no-evidence summary judgment must assert that no evidence exists as to one or more of the essential elements of the non-movant s claims on which it would have the burden of proof at trial. Holmstrom v. Lee, 26 S.W.3d 526, 530 (Tex. App. Austin 2000, no pet.). Once the movant specifies the elements on which there is no evidence, the burden shifts to the non-movant to raise a fact issue on the challenged elements. See Tex. R. Civ. P. 166a(i). A no-evidence summary judgment will be sustained when (1) there is a complete absence of evidence of a vital fact, (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a scintilla, or (4) the evidence conclusively establishes the opposite of a vital fact. King Ranch, 118 S.W.3d at 751. We view the evidence in the light most favorable to the non-movant, disregarding all contrary evidence and inferences. Id.

Standing

In its no-evidence motion for summary judgment, the State argued that standing, i.e., a justiciable case or controversy, was an essential element of a declaratory judgment, see Bonham State Bank v. Beadle, 907 S.W.2d 465, 467 (Tex. 1995), and that Bowles had produced no evidence that he possessed such standing. Bowles s response to the motion, to which he attached his own affidavit, asserted that he had standing based on three facts: (1) that he had been convicted under the Texas Lien Release Law; (2) that he was subject to further prosecution under the Texas Lien Release Law; and (3) that the underlying dispute the reason that Bowles filed the liens is ongoing. We will address each basis upon which Bowles claims standing.

Bowles s Conviction

Bowles argues that he has standing to challenge the Lien Release Law because he has been criminally convicted thereunder. The State responds that the criminal conviction has been finally adjudicated and he therefore lacks standing to contest the statute on this basis in civil court. We agree.

Bowles s attempt to obtain a declaratory judgment on the basis of his previous conviction is, essentially, a collateral attack on his previous criminal conviction. See Mc Cormick v. Tex. Comm. Bank., N.A., 751 S.W.2d 887, 889 (Tex. App. Houston [14th Dist.] 1988, writ denied) (holding that collateral attack is attack on validity of judgment in suit not instituted for such purpose). A defendant who has been discharged from custody may collaterally attack his conviction only if he is able to show collateral legal consequences resulting from his conviction. See ex parte Crosley, 548 S.W.2d 409, 410 (Tex. Crim. App. 1977). For example, a defendant convicted of misdemeanor driving while intoxicated can collaterally attack that conviction, even if he has served his sentence, because the conviction can be used to enhance his punishment in a subsequent prosecution for driving while intoxicated. See Tatum v. State, 846 S.W.2d 324 (Tex. Crim. App. 1993).

In response to the State s no-evidence motion for summary judgment, Bowles has not introduced any evidence of any collateral legal consequences he has or will suffer as a result of his previous criminal convictions.

Bowles had an opportunity to challenge the validity of the Lien Release Statute as a part of his criminal case, which he did not do. // Because he has identified no collateral consequences from his conviction, his conviction is not subject to collateral attack. As such, Bowles s criminal conviction presents no justiciable case or controversy upon which he can assert standing.

Possible Future Criminal Prosecutions

Bowles also argues that he has standing to bring the declaratory judgment action because he is still subject to prosecution in Grimes County and Brazoria County. We begin by noting that Bowles was given notice to remove the liens in 1998 or 1999, which he refused to do. Therefore, the statute of limitations for his refusal to comply began to run at that time. Refusal to execute release of a fraudulent lien or claim is a Class A misdemeanor. Tex. Pen. Code Ann. 32.49 (c) (Vernon 2003). The statute of limitations for a misdemeanor is 2 years. Tex. Code Crim. Proc. Ann. art. 12.02 (Vernon 2005). Bowles has not offered summary judgment evidence to support his contention that he is still subject to prosecution based on the notices to remove the liens, and his refusal to do so, which occurred in 1998 and 1999.

We turn next to the issue of whether a civil equity court can address the constitutionality of a penal statute. In State v. Morales, 869 S.W.2d 941, 944-45 (Tex. 1994), the supreme court identified four types of cases in which a party might attempt to obtain relief from an equity court based upon the unconstitutionality of a criminal statute:

1. the statute is enforced and the party is being prosecuted;

2. the statute is enforced and the threat of prosecution in imminent, although the party has yet to be prosecuted;

3. there is no actual or threatened enforcement of the statute, and the party does not seek an injunction against its enforcement, but the statute is nonetheless integrally related to conduct subject to the court s equity jurisdiction; and

4. there is no actual or threatened enforcement of the statute and no complaint of specific conduct remediable by injunction.

Id.; Dallas County Dist. Attorney v. Doe, 969 S.W.2d 537, 540-41 (Tex. App. Dallas 1998, no pet.).

In the first two categories, courts of equity will not interfere with the enforcement of a criminal statute unless the statute is unconstitutional, and its enforcement will result in irreparable injury to vested property rights. Morales, 869 S.W.2d at 945; Doe, 969 S.W.2d at 541. The reason for this rule is that the meaning and validity of a penal statute should ordinarily be determined by a court exercising criminal jurisdiction. Morales, 869 S.W.2d at 945; Doe, 969 S.W.2d at 541. When the validity of a criminal statute can be determined in any criminal proceeding that may arise from the statute s enforcement, and no vested property rights are threatened, there is no occasion for the intervention of equity. Morales, 869 S.W.2d at 945; Doe, 969 S.W.2d at 541. In this case, Bowles s response to the State s no-evidence motion for summary judgment does not point to any vested property right that is subject to irreparable harm. Although he claims an interest in the business that is the subject of the underlying litigation, he has not brought forth summary judgment proof to show that he has a vested property right in maintaining a lien on Schwartz s property.

In the third category of cases set out in Morales, a civil equity court can address the validity of a penal statute when the plaintiff s claim is coupled with a request for an injunction against a rule adopted to implement the statute. Morales, 869 S.W.2d at 946; see also Passell v. Fort Worth Indep. Sch. Dist., 440 S.W.2d 61, 64 (Tex. 1969). In this case, there is no request to enjoin a rule adopted to implement section 32.49 of the Penal Code.

In the fourth category of cases set out in Morales, equity jurisdiction is plainly lacking. Morales, 869 S.W.2d at 946.

An overarching principle for all four categories is that [a] naked declaration as to the constitutionality of a criminal statute alone, without a valid request for injunctive relief, is clearly not within the jurisdiction of a Texas court sitting in equity. Morales, 869 S.W.2d at 942.

A critical issue regarding jurisdiction in this case is that Bowles s petition does not request injunctive relief. Rather, he seeks only a declaration that the Lien Release Law is invalid. // A naked declaration that the Lien Release law is invalid, without a valid request for injunctive relief, is not within the jurisdiction of a civil district court sitting in equity. Morales, 869 S.W.2d at 942; Doe, 969 S.W.2d at 542.

Because Bowles has not raised a fact issue as to whether he is subject to further prosecution on the basis of the 1989 and 1990 notices, and also because his petition fails to request injunctive relief, the possibility of future prosecution does not confer standing in this civil proceeding.

Ongoing Underlying Litigation

Finally, Bowles contends that his interest in the business that is the subject of the underlying litigation gives him standing to challenge the Texas Lien Release Law.

However, this declaratory judgment action is nothing more than an attempt to have a civil court declare a penal statute unconstitutional. For the reasons given above, there is no case or controversy over which a civil court sitting in equity can exercise jurisdiction.

CONCLUSION

Because there is no case or controversy over which the district court could properly exercise jurisdiction, the trial court did not err in granting the State s motion for summary judgment on the basis of standing and dismissing Bowles s claims. In light of our holding on this issue, we need not address Bowles s remaining issues on appeal.

Sherry Radack

Chief Justice

Panel consists of Chief Justice Radack and Justices Alcala and Bland.