Danny D. Bonds v. Sgt. James Rodriguez, Gary Johnson, Juan Pesina, Thomas S. Hinkle, and Michael B. Davis--Appeal from 81st Judicial District Court of Karnes County

MEMORANDUM OPINION
No. 04-02-00156-CV
Danny D. BONDS,
Appellant
v.
Sgt. James RODRIGUEZ, Lt. Juan Pesina, Major Michael B. Davis,
Captain Thomas S. Hinkle, and Director Gary Johnson,
Appellees
From the 81st Judicial District Court, Karnes County, Texas
Trial Court No. 99-07-00129-CVK
Honorable Ron Carr, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Sarah B. Duncan, Justice

Delivered and Filed: January 22, 2003

AFFIRMED

Danny D. Bonds appeals the trial court's order denying his motion to disqualify the Attorney General from representing the defendants in this lawsuit and its order dismissing his lawsuit pursuant to section 14.003 of the Texas Civil Practice and Remedies Code. The Attorney General has filed a responsive brief setting forth its statutory authority to represent the defendants and the absence of any impediment to the representation and detailing the reasons Bonds' causes of action are frivolous. Because the law is settled, we affirm in this memorandum opinion. See Tex. R. App. P. 47.4.

1. Disqualification-In his motion to disqualify, Bonds alleged it "is against 'public policy' for the Attorney General and Assistant Attorney Generals [sic] to represent or defend the bad faith or illegal actions of the defendants when it has no legitimate interest therein, or when it is clearly injurious to the public or against the public good"; "the Attorney General and Assistant Attorney Generals [sic] have an impermissible conflict of interest to which their other clients (i.e. the citizens of the State of Texas, including plaintiff) have not lawfully consented or given authorization"; the Attorney General's representation of the defendants denies Bonds his constitutional rights to procedural and substantive due process, "because such representation or defense impairs [Bonds'] rights, is not reasonably necessary to accomplish any legitimate State objective, and operates in an arbitrary or unjust manner to [Bonds'] substantial detriment"; and denies Bonds' right to equal protection under the Texas Constitution. However, the Texas Legislature has mandated that the Attorney General defend state employees whenever it "is in the interest of the state as determined by the attorney general or his designee." Tex. Civ. Prac. & Rem. Code Ann. 104.002(a)(3), 104.004(a) (Vernon 1997). And, because the Attorney General has never represented Bonds, no impermissible conflict of interest that prevents it from representing the defendants in this case exists.

2. Policy-Bonds' first cause of action alleges defendants violated his rights "guaranteed" under the Texas Department of Criminal Justice - Institutional Division Offender Orientation Handbook and various other Texas Department of Criminal Justice - Institutional Division policies and directives. However, there is no private cause of action for a violation of policy, as discussed on pages 5-6 of the Attorney General's brief.

2. Texas Government Code-Bonds next alleges "the defendants have violated plaintiff's rights guaranteed under V.T.C.A. Gov't Code 493.001, 494.001 and 498.002." Again, however, there is no private cause of action for violation of the statutory provisions outlining the mission of the Texas Department of Criminal Justice and its institutional division or the requirement that Texas Department of Criminal Justice - Institutional Division appropriately classify inmates, as discussed on page 7 of the Attorney General's brief. See Spellmon v. Sweeney, 819 S.W.2d 206, 211 (Tex. App.-Waco 1991, no writ).

3. Rehabilitation Act and Americans With Disabilities Act - Bonds alleges defendant Gary Johnson, in his official capacity as director of the Institutional Division of the Texas Department of Criminal Justice, violated his rights under Section 504 of the Rehabilitation Act, 29 U.S.C. 794(a), and Title II of the Americans With Disabilities Act, by discriminating against him because of his disability - Hepatitis C. These claims are barred by sovereign immunity. U.S. Const. Amend. XI; Reickenbacker v. Foster, 274 F.3d 974 (5th Cir. 2001); Aguilar v. Texas Dep't. of Criminal Justice, 160 F.3d 1052, 1054 (5th Cir. 1998), cert. denied, 528 U.S. 851 (1999); see City of Beaumont v. Bouillion, 896 S.W.2d 143 (Tex. 1995) (claim against state officer in his official capacity seeks to impose liability on the state agency). On appeal, Bonds contends he also brought his federal claims against Johnson under Ex parte Young, 209 U.S. 123 (1908). However, nothing in his live petition suggests this, and Bonds expressly states in his brief that he is not seeking equitable declaratory or injunctive relief against Johnson. The relief sought in a claim brought under Ex Parte Young must be declaratory or injunctive in nature and prospective in effect. Aguilar, 160 F.3d at 1054. The federal claims were therefore properly dismissed as frivolous.

4. Texas Human Resources Code - Bonds next contends defendants violated his rights under the section 121.003 of the Texas Human Resource Code by discriminating against him because of his Hepatitis C. There is no arguable basis in law for Bonds' contention that prison officers illegally discriminated against him because of his alleged disability by failing to immediately transfer him to another cell when he demanded it. By his own admission, Hepatitis C is highly communicable, and the delay in complying with Bonds' demand to move him to another cell was due to officers having to locate an appropriate, available cell with another inmate who was already infected. The trial court did not abuse its discretion in dismissing this claim as frivolous.

6. Constitutional Claims - Bonds next alleges defendants violated his rights to equal protection, freedom of religion, freedom from cruel and unusual punishment due course and due process of law guaranteed by the Texas and United States Constitutions. He seeks damages under the Texas Constitution and 42 U.S.C. 1983 and declaratory and injunctive relief.

There is no private cause of action for monetary relief under the Texas Constitution, whether sought from a state agency or an individual. City of Beaumont v. Bouillion, 896 S.W.2d 143 (Tex. 1995); Univ. of Tex. System v. Courtney, 946 S.W.2d 464, 471 (Tex. App.-Fort Worth 1997, writ denied). These claims were therefore properly dismissed. Bonds' claims that his constitutional rights were violated by prison officers are also frivolous, lacking any arguable basis in law, for the reasons briefed on pages 16 - 22 of the Attorney General's brief.

8. Tort Claims-Bonds' petition alleges gross negligence, false imprisonment, and "fraudulent concealment or misrepresentations." However, Bonds has not alleged facts that would arguably establish at least one of the elements of each of these claims. Because the claims have no arguable basis in law, they were properly dismissed.

9. Special Exceptions - In his last point of error, Bonds argues the trial court abused its discretion in denying his special exceptions to the Attorney General's motion to dismiss. Bonds contends the Attorney General was required to file special exceptions to his pleading before it could file a motion to dismiss under Chapter 14 of the Civil Practice and Remedies Code. Had the Legislature intended to impose such a requirement on defendants in a suit subject to chapter 14, it would have done so. In fact, the Legislature indicated otherwise by permitting the trial court to dismiss a suit as frivolous even before process is served. See Tex. Civ. Prac. & Rem. Code 14.003 (a) (Vernon 2002); McCollum v. Mt. Ararat Baptist Church, Inc., 980 S.W.2d 535, 537 (Tex. App.-Houston [14th Dist.] 1998, no pet.) ("the applicability of chapter fourteen is not contingent on the defendant's satisfaction of any procedural rule").

The trial court did not err in denying Bonds' motion to disqualify the Attorney General and did not abuse its discretion in failing to grant Bonds' special exceptions and dismissing his suit. We therefore affirm the trial court's judgment.

Sarah B. Duncan, Justice

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