Daven L. King v. Cathy Moores, et al.--Appeal from 36th District Court of Bee County

NUMBER 13-05-694-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

DAVEN L. KING, Appellant,

v.

CATHY MOORES, ET AL, Appellees.

On appeal from the 156th District Court

of San Patricio County, Texas.

    MEMORANDUM OPINION[1]

Before Chief Justice Valdez and Justices Ya_ez and Castillo

Memorandum Opinion by Justice Castillo

 

Appellant, Daven L. King, an indigent inmate in the Texas Department of Criminal JusticeBInstitutional Division (TDCJ), appeals his pro se case involving inmate litigation. We modify the trial court's order to reflect "without prejudice" and affirm the order as modified.

I. Issues Presented

We construe briefs liberally. Tex. R. App. P. 38.9. We treat the statement of an issue as covering every subsidiary question that is fairly presented. Tex. R. App. P. 38.1(e). By five issues, King asserts that the trial court abused its discretion by (1) dismissing his case for lack of jurisdiction when it in fact had jurisdiction, (2) dismissing with prejudice, (3) failing to rule on his pending motions, (4) failing to provide timely notice of the hearing, and (5) granting relief beyond that requested because Moores never filed an answer or appeared.

 II. Procedural Background[2]

 

As grounds in his original petition, King alleged that the box he used for storage of his legal materials was removed, contrary to administrative rules in place authorizing use of a box when the inmate is involved in the judicial system. King exhausted administrative remedies seeking return of the box. He sued appellees[3] seeking district court de novo review of an administrative grievance decision, a declaration of his rights under TDCJ administrative rules, and redress for the removal of privileges associated with a legal storage box used in connection with his legal research and work. King sought review under section 2001.176 of the Texas Government Code and alleged that chapter 14 of the Texas Civil Practice and Remedies Code applied. See Tex. Civ. Prac. & Rem. Code Ann. ' 14.003 (Vernon 2002); Tex. Gov't Code Ann. _ 2001.176 (Vernon 2000). As relief in his original petition, King requested in part that the district court conduct de novo review of the administrative decision and declare his rights under TDCJ administrative rules with regard to use of a legal storage box. By subsequent filings, he sought redress for alleged ongoing denial of his privileges associated with the storage box.[4]

Appellees filed a plea to the jurisdiction, asserting that the trial court did not have jurisdiction on grounds that chapter 2001.176 sets venue in Travis County and expressly bars judicial review of an internal procedure or rule of the TDCJ under section 2001.226.[5] See Tex. Gov't Code Ann. _ 2001.226 (Vernon 2000). King filed an amended petition seeking, among other things, a declaration of his federal and state constitutional rights, injunctive relief, costs, and damages with respect to violations of administrative rules regarding use of a legal storage box. By his live pleading, King asserted that the trial court had jurisdiction under chapter 14.

 

At the hearing, the parties conceded that King's live pleading as amended no longer addressed judicial review under section 2001.176, and agreed that chapter 14 applied. Appellees essentially argued that their plea to the jurisdiction was viable because King still challenged the administrative grievance process, sought interpretation of a TDCJ rule, and thus involved section 2001.176. At the hearing, King admitted he sought review of his grievance and the decision to deny it. The trial court determined that, based on the pleadings on file, King sought to resolve a grievance procedure and, to do so, he must file in Travis County in accordance with proper statutes.

By its order, the trial court granted the plea to the jurisdiction and denied all pending motions. It dismissed the case with prejudice.

III. Jurisdiction

A. Standard of Review

 

As a general proposition, before a court may address the merits of any case, the court must have jurisdiction over the party or the property subject to the suit, jurisdiction over the subject matter, jurisdiction to enter the particular judgment, and capacity to act as a court. State Bar of Tex. v. Gomez, 891 S.W.2d 243, 245 (Tex. 1994). If the district court lacks jurisdiction, then its decision would not bind the parties. See id. A decision that does not bind the parties is, by definition, an advisory opinion prohibited by Texas law. Id. A trial court's lack of subject matter jurisdiction is fundamental error and may be raised the first time on appeal. See Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 442 44 (Tex. 1993). Whether a court has subject matter jurisdiction is a question of law. Tex. Dep't of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). Whether a pleader has alleged facts that affirmatively demonstrate a trial court's subject matter jurisdiction is a question of law, to be reviewed de novo. Id. Likewise, whether undisputed evidence of jurisdictional facts establishes a trial court's jurisdiction is also a question of law. Id. However, in some cases, disputed evidence of jurisdictional facts that also implicates the merits of the case may require resolution by the finder of fact. Id.

In our review, we determine if the pleader has alleged facts that affirmatively demonstrate the court's jurisdiction to hear the cause. See id. We construe the pleadings liberally in favor of the plaintiffs and look to the pleader's intent. Id. If the pleadings do not contain sufficient facts to affirmatively demonstrate the trial court's jurisdiction but do not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency and the plaintiff should be afforded the opportunity to amend. Id. at 226 27. If the pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiffs an opportunity to amend. Id. at 227.

B. De Novo or Judicial District Court Review under Chapter 2001

 

Looking to the pleader's intent and considering King's argument, we conclude he essentially argues that de novo review is available under chapter 14 and section 2001.173 of the government code. See Tex. Gov't Code Ann. _ 2001.173 (Vernon 2000).[6] Appellees counter that, however King characterizes his claim, section 2001.226 clearly states that review does not apply to TDCJ inmates.[7] See Tex. Gov't Code Ann. _ 2001.226 (Vernon 2000).

 

We agree with appellees. A person may obtain judicial review of an administrative action only if a statute provides a right to judicial review or the action adversely affects a vested property right or otherwise violates a constitutional right. See Cont'l Cas. Ins. Co. v. Functional Restoration Assocs., 19 S.W.3d 393, 397 (Tex. 2000); Firemen's & Policemen's Civil Serv. Comm'n v. Kennedy, 514 S.W.2d 237, 239 (Tex. 1974); City of Amarillo v. Hancock, 239 S.W.2d 788, 790 (Tex. 1951). King's lawsuit requests de novo review of an administrative decision disallowing use of a legal storage box. To review the decision involves review of the internal rules controlling use of a legal storage box. Because King's claim involves a rule of the TDCJ "that applies to an inmate or any other person under the custody or control of the department or to an action taken under that rule or procedure," within the clear meaning of the statute, we conclude that the declaratory cause of action falls within the scope of section 2001.226 and, thus, is barred. King's constitutional claims are likewise barred. Section 2001.226 expressly applies to an "internal procedure of the Texas Department of Criminal Justice or Texas Board of Criminal Justice that applies to an inmate" or "to an action taken under that rule or procedure." See Tex. Gov't Code Ann. _ 2001.226 (Vernon 2000). We must presume that the Legislature intended the plain meaning of the words it used in the statute, and we must give effect to its intent. The plain meaning of the terms contemplate constitutional claims raised with respect to the rules.

In sum, by his live pleading King ostensibly sought in material part a declaration of his rights. In a proceeding for declaratory judgment, the court may award costs and further relief when necessary and proper; however, such relief must be within the existing jurisdiction of the court. See Tex. Civ. Prac. & Rem. Code Ann. '' 37.009, 37.011 (Vernon 1997). King admittedly sought judicial review of an administrative rule of the TDCJ. Such review is barred. SeeTex. Gov't. Code Ann. _ 2001.226 (Vernon 2000). The district court had no power to grant the relief sought. Id.

 

However characterized, King's claim involves a rule of the TDCJ. Chapter 2001 does not authorize the review requested. See id. Even assuming that it does, the chapter confers jurisdiction in a Travis County district court and not in the present district court. See Tex. Gov't Code Ann. _ 2001.176 (Vernon 2000). We will not disturb the trial court's dismissal on grounds that King's claim is barred by section 2001.226. Id. We overrule the first part of King's first issue presented.

 C. Chapter 14

By a sub-issue in his first issue, King asserts that the trial court erred in dismissing for lack of jurisdiction because it had jurisdiction under chapter 14.[8] He maintains that chapter 14 was not addressed below and was not part of appellees' plea to the jurisdiction. Appellees respond generally that the trial court properly dismissed the case. King replies that the trial court did not rule with respect to chapter 14 and, if it implicitly did so, it improperly granted appellees more relief than requested in their dispositive pleading. Alternatively, he maintains that the district court has jurisdiction to review his claim under chapter 14 but has not done so.

 

The purpose of chapter 14's procedural requirements is to deter "constant, often duplicative, inmate litigation." Lilly v. Northrep, 100 S.W.3d 335, 337 (Tex. App.BSan Antonio 2002, pet. denied); Obadele v. Johnson, 60 S.W.3d 345, 348 (Tex. App.BHouston [14th Dist.] 2001, no pet.). The trial courts are given broad discretion to determine whether an inmate's suit should be dismissed because: (1) prisoners have a strong incentive to litigate; (2) the government bears the cost of an in forma pauperis suit; (3) sanctions are not effective; and (4) the dismissal of unmeritorious claims benefits state officials, courts and meritorious claimants. Aguilar v. Chastain, 923 S.W.2d 740, 743 (Tex. App.BTyler 1996, writ denied). Dismissal is appropriate if the court determines that the claim is frivolous or malicious. See Tex. Civ. Prac. & Rem. Code Ann. ' 14.003(a)(2) (Vernon 2002); Jackson v. Texas Dep't of Criminal JusticeBInst. Div., 28 S.W.3d 811, 814 (Tex. App.BCorpus Christi 2000,

pet. denied).

In his live pleading, King claimed jurisdiction existed under chapter 14. In their plea to the jurisdiction, appellees stated in general that the purpose of their motion was to demonstrate that King failed to state a cognizable claim against them under applicable State law and, thus, the lawsuit must be dismissed. Appellees moved to dismiss on lack of jurisdiction grounds in the context of chapter 2001. In their plea, they did not address chapter 14. At the hearing, appellees agreed with King that chapter 14 applied to King's claim. At the time, King had a pending motion for summary judgment asserting generally that there was no evidence to refute the allegations in his petition and he was entitled to judgment as a matter of law.

 

The trial court's order grants the plea to the jurisdiction and dismisses with prejudice. In a separate paragraph, the order recites, "The court further DENIES all other pending motions and requests for relief not expressly granted in this motion."

By its order, the trial court expressly granted appellees' plea to the jurisdiction on chapter 2001 grounds. The dismissal order expressly denied other pending motions before the trial court which included King's summary-judgment motion. Even if appellees' plea to the jurisdiction did not encompass chapter 14, King's motion for summary judgment did. We conclude that the trial court properly exercised its power under chapter 14 to review King's summary-judgment motion and denied that motion. With respect to chapter 2001, the trial court properly dismissed for lack of jurisdiction. Because the trial court ruled with respect to chapter 14, we affirm that part of the trial court's order expressly denying his motion for summary judgment. We overrule the sub-issue in King's first issue presented.

IV. Remaining Issues

A. Dismissal with Prejudice

 

By his second issue, he maintains that the trial court improperly dismissed the case with prejudice. Dismissal with prejudice constitutes an adjudication on the merits and operates as if the case had been fully tried and decided. Crain v. Prasifka, 97 S.W.3d 867, 870 (Tex. App.BCorpus Christi 2003, pet. denied) (citing Ritchey v. Vasquez, 986 S.W.2d 611, 612 (Tex. 1999); Mossler v. Shields, 818 S.W.2d 752, 754 (Tex. 1991)). Thus, orders dismissing cases with prejudice have full res judicata and collateral estoppel effect, barring subsequent relitigation of the same causes of action or issues between the same parties. Crain, 97 S.W.3d at 870 (citing Barr v. Resolution Trust Corp., 837 S.W.2d 627, 630 31 (Tex. 1992); McConnell v. Att'y Gen. of Tex., 878 S.W.2d 281, 283 (Tex. App.BCorpus Christi 1994, no writ)).

By its order, the trial court accomplished two things. It granted the plea to the jurisdiction, and so dismissal with respect to chapter 2001 was proper. See Tex. Gov't. Code Ann. _ 2001.226. It denied King's summary-judgment motion, and so dismissal with respect to chapter 14 was also proper. See Crain, 97 S.W.2d at 870. However, a dismissal under chapter 14 is not a dismissal on the merits but, rather, an exercise of the trial court's discretion under chapter 14. See id. Accordingly, we sustain King's second issue presented. We modify the trial court's order of dismissal by deleting the words "with prejudice" and substituting the words "without prejudice." As modified, the trial court's order is affirmed.

B. Finality

By his third issue, King maintains that the trial court failed to rule on his pending motions. Before pronouncing its decision, the trial court stated it reviewed the file "fairly extensively" and considered the parties' arguments. The trial court's order expressly disposes of all pending motions. Because the order disposes of all parties and claims based on the record in the case, it is final. Lehmann v. Har Con Corp., 39 S.W.3d 191, 200 (Tex. 2001). We overrule King's third issue presented.

C. Notice of the Hearing

 

By his fourth issue, King maintains that the trial court denied him timely notice of the hearing. He did not object below, and so he has failed to preserve error. See Tex. R. App. P. 33.1(a)(1)(A). Even assuming he preserved error, King fully participated in the hearing conducted by telephone and, thus, has not shown harm. See Tex. R. App. P. 44.1. We overrule his fourth issue presented.

D. Nonappearance

By his fifth issue, King maintains that the trial court disposed of his claim against Moores even though she has never answered or addressed the lawsuit. He argues that the trial court granted more relief than requested.

We reviewed the appellate record before us. See Tex. R. App. P. 34. We cannot determine whether Moores was served with citation or appeared. Even so, "[e]very reasonable presumption will be indulged to sustain a judgment and nothing will be presumed against it; all prior requisites to the rendition of a judgment will be presumed to have been fulfilled and the recitals in a judgment will be presumed to state the truth." Miller v. Hood, 536 S.W.2d 278, 285 (Tex. Civ. App.CCorpus Christi 1976, writ ref'd n.r.e.). In the absence of evidence to the contrary, we presume the regularity of the trial court's order and records. Id.

Further, even assuming Moores was never served with citation and did not file an answer, nothing in the record demonstrates that King ever expected to obtain service upon Moores. In these circumstances, the case stands as if there had been a discontinuance with respect to Moores and the order is to be regarded as final for the purposes of appeal. See M.O. Dental Lab v. Rape, 139 S.W.3d 671, 674 (Tex. 2004). We overrule King's fifth issue presented.

 

V. Conclusion

We overrule King's first, third, fourth, and fifth issues presented. We sustain his second issue and modify the trial court's order to reflect the dismissal is "without prejudice." We affirm the trial court's order as modified.

ERRLINDA CASTILLO

Justice

Memorandum Opinion delivered and filed this

the 13th day of July, 2006.

 

[1]See Tex. R. App. P. 47.1, 47.4.

[2] In a civil case, this Court will accept as true the facts stated unless another party contradicts them. See Tex. R. App. P. 38.1(f). The statement must be supported by record references. Id.

[3] Appellees are Cathy Moores, P. Schaefer, G. Herrera, Warden A. Castillo, and V. Barrow, in their official capacities.

[4] We construe King's letters as supplements to his original petition.

[5] Section 2001.226 states:

This chapter does not apply to a rule or internal procedure of the Texas Department of Criminal Justice or Texas Board of Criminal Justice that applies to an inmate or any other person under the custody or control of the department or to an action taken under that rule or procedure.

Tex. Gov't Code Ann. _ 2001.226 (Vernon 2000).

[6] Section 2001.173 states:

(a) If the manner of review authorized by law for the decision in a contested case that is the subject of complaint is by trial de novo, the reviewing court shall try each issue of fact and law in the manner that applies to other civil suits in this state as though there had not been an intervening agency action or decision but may not admit in evidence the fact of prior state agency action or the nature of that action except to the limited extent necessary to show compliance with statutory provisions that vest jurisdiction in the court.

(b) On demand, a party to a trial de novo review may have a jury determination of each issue of fact on which a jury determination could be obtained in other civil suits in this state.

Tex. Gov't Code Ann. ' 2001.173 (Vernon 2000).

[7] An inmate must exhaust his administrative remedies before filing suit. See Tex. Gov't Code Ann. '' 501.007B.008 (Vernon 2004) (outlining the specific procedures an inmate must complete in order to exhaust his administrative remedies). King filed copies of his grievance, showing the date his grievances were filed, the date written decisions were received, and copies of the written decisions. The parties do not dispute that he exhausted his administrative remedies.

[8] In determining whether a claim is frivolous or malicious, the trial court may consider whether:

(1) the claim's realistic chance of ultimate success is slight;

(2) the claim has no arguable basis in law or in fact;

(3) it is clear that the party cannot prove facts in support of the claim; or

(4) the claim is substantially similar to a previous claim filed by the inmate because the claim arises from the same operative facts.

Tex. Civ. Prac. & Rem. Code Ann. ' 14.003(b) (Vernon 2002).