Roger Dean Tolley v. Texas Board of Pardons and Paroles, et al.--Appeal from 52nd District Court of Coryell County

IN THE

TENTH COURT OF APPEALS

No. 10-98-300-CV

ROGER DEAN TOLLEY,

Appellant

v.

TEXAS BOARD OF PARDONS

AND PAROLES, ET AL.,

Appellees

From the 52nd District Court

Coryell County, Texas

Trial Court # 31,818

O P I N I O N

Appellant Tolley, a prison inmate, appeals from an order of the trial court dismissing his pro se in forma pauperis lawsuit.

Appellant filed suit against Appellees: (1) Texas Board of Pardons and Paroles (the Board); (2) Victor Rodriquez, Chairman of the Board; (3) Alvin Shaw, member of the Board; (4) Juanita Gonzales, member of the Board; (5) John Heritzco, Coordinator Substance Abuse Felony Punishment Facility (SAFPF); (6) Whitney Fraley, San Antonio District Parole Officer; and (7) Captain Buckley, Unit Captain SAFPF, Joe Ney Unit.

Appellant sued Appellees in their State, individual and official capacities. He alleges that he was released on parole from the Texas Department of Criminal Justice Institutional Division in August 1990; that in January 1997 he was convicted of misdemeanor possession of marihuana; that the Board conducted a final revocation hearing of his parole on March 11, 1997, and he was placed in the SAFPF program and was sent to the Intermediate Sanction Facility (ISF) in Fort Worth where he entered into a contract with the Board for a predetermined release date of July 17, 1997; that on April 25, 1997, he was transferred to the SAFPF, Joe Ney Unit at Hondo, where he entered into another contract with the Board with an approved/predetermined release date of July 21, 1998.

Appellant alleged that on April 30, 1997, Appellee Buckley notified Appellee Fraley that Appellant was ineligible for the SAFPF program due to his original conviction offense of sexual assault; that Fraley notified Appellee Heritzco; and that the Board revoked Appellant s parole on May 12, 1997.

Appellant alleged his parole was revoked based on his original offense of sexual assault and not on the misdemeanor possession charge. He alleges that because of the revocation of his parole that he will be required to serve all calendar time served during the six years he was out on parole, and that his discharge date has been extended to the year 2007. He asserts that forfeiture of all of his calendar time while on parole is constitutionally excessive by being disproportionate to the damage caused, i.e., misdemeanor possession of marihuana; and that his contracts with the Board were breached by his removal from the ISF and the SAFPF programs.

Appellant sought an order ratifying his contracts with the Board; an order declaring forfeiture of his calendar time on parole to be excessive; an order restoring such time; and damages in excess of $1,000,000.

The trial court dismissed Appellant s case as to all seven Appellees pursuant to Chapter 14, Texas Practice & Remedies Code; finding such cause of action frivolous because his claim has no arguable basis in law or fact; and that Appellant failed to state a cause of action. //

Appellant appeals on five points of error asserting that the trial court abused its discretion by: (1) dismissing his claim of excessive forfeiture; (2) dismissing his claim of breach of contract; (3) dismissing his claim of breach of good faith and fair dealing; (4) dismissing his claim of tortuous interference with a contract; and (5) dismissing his claim of conspiracy.

Subject to review for abuse of discretion, a court may dismiss a pro se in forma pauperis lawsuit filed by a prisoner which has no arguable basis in law or fact. Tex. Civ. Prac. & Rem. Code 14.003; Hickson v. Moya, 926 S.W.2d 397 (Tex. App. Waco 1996, no writ). Abuse of discretion is determined by whether the court acted without reference to guiding principles. Craddock v. Sunshine Bus Lines, 133 S.W.2d 124, 126 (Tex. 1939). That an appellate court might have decided a matter differently does not demonstrate an abuse of discretion on the part of the trial court. S.W. Bell Telephone Co. v. Johnson, 389 S.W.2d 645, 648 (Tex. 1965).

A suit brought to control state actions or to subject the state to liability is not maintainable without legislative consent or statutory authorization. Dept. of Agriculture v. Printing Industries Ass n, 600 S.W.2d 264, 265 (Tex. 1980). The Board as a state agency is entitled to the same sovereign immunity enjoyed by the State. Bogg v. Univ. of Tex. Medical Branch, 726 S.W.2d 582, 583 (Tex. App. Houston [14th Dist.] 1987, n.r.e.).

The State or its subdivisions has sovereign immunity from liability if the employee who committed the acts causing damage had official immunity. The employee has official immunity for discretionary actions within the scope of the employee s authority. Discretion means the requiring of or the exercise of personal judgment or discretion. Tex. Dept. of Criminal Justice v. Watt, 949 S.W.2d 562, 565 (Tex. App. Waco 1997, no writ).

Texas Government Code 508.283c provides: If a person s parole is revoked the person may be required to serve the remaining portion of the sentence on which the person was released. The remaining portion is completed without credit for the time from the date of the person s release to the date of revocation. Ex parte Adams, 941 S.W.2d 136, 137 (Tex. Crim. App. 1997), in addressing the former art. 42.18 14(a), Texas Code of Criminal Procedure (predecessor article of Texas Government Code 508.238c) stated that art. 42.18 14(a) means that when parole is revoked a parolee is not entitled to credit for time spent on parole.

The Board revoked Appellant s parole which was a discretionary action and it follows that Appellant is not entitled to credit for the time he spent on parole.

All of the individual appellees in making decisions and taking actions concerning Appellant were exercising their discretionary powers as state employees. They have official immunity for such actions. The trial court did not abuse its discretion in dismissing Appellant s lawsuit.

Appellant s five points of error are all overruled. The judgment is affirmed.

FRANK G. McDONALD

Chief Justice (Retired)

Before Chief Justice Davis,

Justice Vance and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed February 17, 1999

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