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holding that inmate's claims were properly dismissed for having no arguable basis in law
Summary of this case from Aranda v. GoodrumOpinion
No. 14-01-01007-CV.
Memorandum Opinion filed April 3, 2003.
Appeal from the 61st District Court, Harris County, Texas, Trial Court Cause No. 01-37615.
Affirmed.
Panel consists of Justices ANDERSON, SEYMORE, and GUZMAN.
MEMORANDUM OPINION
Ivo Nabelek appeals from the dismissal of his in forma pauperis, pro se inmate suit against appellees Gerald Garrett and the Texas Board of Pardons. In five issues, appellant asserts the trial court erred in dismissing his suit and ordering him to pay costs. We affirm.
Facts
Appellant, an inmate of the Texas Department of Criminal Justice (TDCJ), filed an in forma pauperis, pro se suit against the Texas Board of Pardons and Gerald Garrett, apparently an employee of the Board of Pardons. Appellant, who was convicted of aggravated sexual assault of a child, sought declaratory relief that appellees incorrectly found him ineligible for parole. The trial court dismissed appellant's claim as frivolous for failing to follow procedures prescribed under Chapter 14 of the Texas Civil Practice and Remedies Code.
Motion to dismiss
Appellant argues the trial court erred in dismissing his claim as frivolous. State law permits dismissal of any frivolous or malicious claim brought by an inmate who has filed "an affidavit or unsworn declaration of inability to pay." Tex. Civ. Prac. Rem. Code Ann. § 14.003(a)(2) (Vernon Supp. 2002). In determining if claims are frivolous or malicious, the trial court considers whether (1) the realistic chance of ultimate success on the claim is slight; (2) the claim has no arguable basis in law or in fact; (3) the party clearly cannot prove facts to support the claim; or (4) the claim is substantially similar to a previous claim filed by the inmate arising from the same operative facts. See id. § 14.003(b). We review a trial court's dismissal of an inmate's claims under Chapter 14 for an abuse of discretion. Hickson v. Moya, 926 S.W.2d 397, 398 (Tex.App.-Waco 1996, no writ). To establish abuse of discretion, appellant must show that the trial court's action was arbitrary or unreasonable in light of all the circumstances. Thomas v. Knight, 52 S.W.3d 292, 294 (Tex.App.-Corpus Christi 2001, pet. denied). Here, the trial court dismissed the claim without a hearing; thus, the only issue before us is whether the trial court properly determined that there was no arguable basis in law for the suit. See Lentworth v. Trahan, 981 S.W.2d 720, 722 (Tex.App.-Houston [1st Dist.] 1998, no pet.).
Appellant contends that appellees have discretion to consider him for parole, even though he was convicted of aggravated sexual assault of a child. Because appellant was convicted of aggravated sexual assault of a child, by law, he is ineligible for parole. See Tex. Gov't Code Ann. § 508.149(a)(8) (Vernon Supp. 2002); Tex. Pen. Code Ann. § 22.021 (Vernon 2002); Cagle v. State, 23 S.W.3d 590, 593 (Tex.App.-Fort Worth 2000, pet. ref'd). Appellant further contends that this statutory ineligibility for parole violates his due process rights. However, state prisoners cannot challenge parole procedures under the Due Process Clause. Johnson v. Rodriguez, 110 F.3d 299, 308 (5th Cir. 1997); Allison v. Kyle, 66 F.3d 71, 74 (5th Cir. 1995); Martin v. Tex. Bd. of Criminal Justice, 60 S.W.3d 226, 230 (Tex.App.-Corpus Christi 2001, no writ). Thus, we hold the trial court did not err in dismissing appellant's claim as having no arguable basis in law and as frivolous. Because our holding on this issue is dispositive of the appeal, we need not address appellant's remaining issues. Accordingly, we affirm the decision of the trial court.