Nabelek, Ivo v. Geral Garrett, Chairman of the Texas Board of Pardons and Paroles, The Texas Board of Pardons and Paroles, and all Current and Future Members of the Texas Board of Pardons and Paroles--Appeal from 189th District Court of Harris County

Affirmed and Memorandum Opinion filed July 24, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-01-00764-CV

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IVO NABELEK, Appellant

V.

GERALD GARRETT, CHAIRMAN OF THE TEXAS BOARD OF PARDONS AND PAROLES, THE TEXAS BOARD OF PARDONS AND PAROLES, and ALL CURRENT AND FUTURE MEMBERS OF THE TEXAS BOARD OF PARDONS AND PAROLES, APPELLEES

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On Appeal from the 189th District Court

Harris County, Texas

Trial Court Cause No. 00-58444

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M E M O R A N D U M O P I N I O N

Ivo Nabelek, an inmate in the Texas Department of Corrections, appeals the dismissal of his pro se, in forma pauperis, action for injunctive and declaratory relief. We affirm.

Nabelek filed this suit to prohibit appellees from applying section 508.046 of the Texas Government Code to future determinations of his eligibility for release on parole. Under the version of former article 42.18 of the Texas Code of Criminal Procedure that was in effect at the time his offense was committed, Nabelek contends that his eligibility for parole would have required the approval of only two of a three-member, randomly-selected, panel of the Board of Pardons and Paroles (the board ). By contrast, under section 508.046, which was enacted after Nabelek committed, and was convicted of, his offense, his eligibility for parole will require the approval of two-thirds of the entire 18-member board.[1] Therefore, Nabelek contends that the application of section 508.046 to his parole determination would violate the prohibition against ex post facto and retroactive laws under the Texas Constitution.[2] After a motion to dismiss was filed by one of the appellees, the trial court dismissed Nabelek s case as frivolous under Chapter 14 of the Texas Civil Practice and Remedies Code ( CPRC ).

Because it is dispositive of the appeal, we proceed to address Nabelek s second point of error, which contends that the trial court abused its discretion in dismissing his suit as frivolous, for lack of an arguable basis in law, under section 14.003 of the CPRC.

A suit brought by an inmate in which the inmate files an affidavit of inability to pay costs may be dismissed if the trial court finds that the claim is frivolous or malicious, such as where the claim s realistic chance of success is slight or the claim has no arguable basis in law. See Tex. Civ. Prac. & Rem. Code Ann. 14.001(1), 14.002(a), 14.003(a)(2), (b)(1)-(2) (Vernon 2002). A statute is constitutionally prohibited from applying retroactively only if it takes away or impairs a vested right acquired under existing law. Subaru of Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 219 (Tex. 2002). No one has a vested right in a mere rule of law or the continuance of present law in relation to a particular subject. Id. Nor do parties have a vested right in choosing what tribunal will determine their rights. See Butnaru v. Ford Motor Co., 84 S.W.3d 198, 205 (Tex.2002). In this case, because Nabelek has not shown, and we cannot perceive, any arguable basis in law to support the existence of a vested right in having his parole eligibility determined by a panel of one particular size versus another or by a smaller panel rather than a larger one, the trial court did not err in dismissing as frivolous his challenge to section 508.046 based on its retroactive application.

As to Nabelek s ex post facto challenge, a civil district court generally lacks jurisdiction to declare a criminal statute, such as section 508.046, unconstitutional in the absence of a threat of irreparable injury to personal or property rights. See State v. Morales, 869 S.W.2d 941, 942-45 (Tex.1994). The validity of such a provision should ordinarily be determined by a court exercising criminal jurisdiction. See id. at 945.

In addition, not every retroactive change in parole procedures that creates a risk of affecting an inmate s term of confinement is prohibited by the ex post facto clause. Garner v. Jones, 529 U.S. 244, 250 (2000).[3] Rather, the controlling inquiry is whether the retroactive application creates a sufficient risk of increasing the length of punishment, as contrasted from only a speculative and attenuated possibility of doing so. See id. at 250-51, 255.[4] Thus, increases in the minimum number of years in which parole decisions must be reconsidered from three to eight or from one to three do not violate the ex post facto prohibition where they do not modify the statutory punishment imposed or the standards for determining the criteria for, or initial date of, parole eligibility. See id. at 250-57; Cal. Dep t of Corrs. v. Morales, 514 U.S. 499, 507-14 (1995). By contrast, statutory amendments that cancel early release credits already earned by inmates or constrict the availability of future credits do violate the ex post facto prohibition because they directly postpone the date at which inmates can become eligible for release and thus increase the length of punishment. See Lynce v. Mathis, 519 U.S. 433, 442-47 (1997); Weaver v. Graham, 450 U.S. 24, 29-36 (1981).

In this case, because the 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, it presents an even more speculative and attenuated possibility of increasing punishment than the amendments upheld in Garner and Morales. Therefore, Nabelek s ex post facto challenge has no arguable basis in law, and the trial court did not err in dismissing it as frivolous. We overrule his second point of error and, thus, need not address his first point of error concerning his compliance with a procedural requirement under section 14.004 of the CPRC.

Nabelek s third point of error contends that the trial court erred in dismissing his entire suit because only one of the appellees filed a motion to dismiss and the language of the dismissal order does not clearly show that all parties and claims have been dismissed. Not only do the conditions for dismissal under section 14.003 not require a motion to be filed by a defendant, they allow a trial court to dismiss a case before process has even been served.[5] Tex. Civ. Prac. & Rem. Code Ann. 14.003(a); McCollum v. Mt. Ararat Baptist Church, Inc., 980 S.W.2d 535, 537 (Tex. App. Houston [14th Dist.] 1998, no pet.). Therefore, the trial court did not err in dismissing the case as to the nonmoving defendants without their filing a motion to dismiss.

As to the finality of the dismissal order, it is true that the order refers to the motion to dismiss and makes no specific mention of the nonmoving defendants. However, in that Nabelek asserted the same claim against all of the defendants collectively, to the extent it was frivolous as to any, it was frivolous as to all. Moreover, the dismissal order clearly ordered that this cause of action be dismissed in its entirety and that all claims not previously ruled upon are hereby denied. This language left no ambiguity as to its meaning, particularly in that a partial dismissal would have served no useful purpose under the circumstances. Accordingly, we overrule Nabelek s third point of error and affirm the trial court s judgment.

/s/ Richard H. Edelman

Justice

Judgment rendered and Memorandum Opinion filed July 24, 2003.

Panel consists of Justices Edelman, Seymore, and Guzman.

[1] See Tex. Gov t Code Ann. 508.031 (Vernon Supp. 2003), 508.046 (Vernon 1998).

[2] See Tex. Const. art. I, 16.

[3] Although Nabelek asserts his challenges under only the Texas, and not the United States, Constitution, he has cited no authority that the Texas Constitution affords any greater or different protection in these areas.

[4] To violate the ex post facto clause, unlike the constitutional prohibition on retroactive statutes, a law need not impair a vested right. See Weaver v. Graham, 450 U.S. 24, 29 (1981).

[5] Because a motion is not required, where a motion is filed, as in this case, it follows that the trial court and reviewing court are not limited, in granting and affirming the dismissal, to the grounds asserted in the motion.