Jason Breshears v. Gary Johnson and Janie Cockrell--Appeal from 267th District Court of De Witt County

NUMBER 13-04-396-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

JASON BRESHEARS, Appellant,

v.

GARY JOHNSON AND

JANIE COCKRELL, Appellees.

On appeal from the 267th District Court of De Witt County, Texas.

MEMORANDUM OPINION

Before Justices Rodriguez, Castillo and Garza

Memorandum Opinion by Justice Garza

Appellant, Jason Breshears, an inmate in the Texas Department of Criminal Justice-Institutional Division ( TDCJ ), filed a civil suit against appellees, TDCJ directors, Gary Johnson and Janie Cockrell, for violations of the Texas Constitution. Specifically, appellant complained that he has been (1) forced to labor against his will, (2) punished multiple times for not laboring, and (3) deprived of all compensation. The trial court dismissed appellant s lawsuit for failure to state a claim. On appeal, appellant raises four issues, arguing that the trial court erred in dismissing his suit. Appellees have filed a letter brief with this Court in which they concede that the trial court improperly dismissed appellant s suit. Appellees suggest that this Court should therefore reverse and remand the case to the trial court for further proceedings. Because appellant and appellees agree that the case was improperly dismissed, we reverse and remand. See Tex. R. App. P. 43.6, 47.1. In passing we note that appellant has invited this Court to address the merits of this case; however, we are in no position to review a case which has not been reviewed in the first instance by the trial court. Tex. R. App. P. 33.1(a)(1). Any such statements to that effect would be dicta. We therefore decline to address appellant s issues dealing with the merits of the case.

_______________________

DORI CONTRERAS GARZA,

Justice

Memorandum Opinion delivered and

filed this the 5th day of May, 2005.