Opinion
NO. 14-15-00444-CV
12-20-2016
RICHARD A. DUNSMORE, Appellant v. BRAD LIVINGSTON, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS THE DIRECTOR OF THE TDCJ, WILLIAM STEVENS, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS THE DIRECTOR OF THE TDCJ-CORRECTIONAL INSTITUTIONAL DIVISION (TDCJ-CID), AND NISSIE OWENS, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS CHAIRMAN OF THE TEXAS BOARD OF PARDONS AND PAROLE (TBPP), Appellees
On Appeal from the 412th District Court Brazoria County, Texas
Trial Court Cause No. 77164-I
MEMORANDUM OPINION
Appellant Richard A. Dunsmore challenges the trial court's dismissal of his suit against various Texas Department of Criminal Justice (TDCJ) and Texas Board of Paroles officials. He asserts that he has been denied participation in pre- parole activities and that the TDCJ has engaged in "RICO activity" to fraudulently obtain federal funds for these programs. We affirm.
Background
Dunsmore filed a "civil complaint" against appellees in May 2014, asserting that they had engaged in various actions that "adversely affected" the "liberty interests" of Dunsmore and other "similarly situated" TDCJ inmates by excessively and unnecessarily prolonging their incarceration. The appellees responded with a general denial and a motion to dismiss under Chapter 14 of the Texas Civil Practice & Remedies Code. In their motion, appellees asserted, inter alia, that Dunsmore (1) previously had filed a substantially similar lawsuit, making the instant suit frivolous, and (2) had no due process right to parole, making the instant lawsuit meritless and frivolous. Following a hearing, the trial court dismissed Dunsmore's lawsuit. This appeal timely ensued.
Analysis
As noted above, Dunsmore's complaints in the trial court hinged on his contention that his "liberty interests" were hampered by the TDCJ's actions. Specifically, Dunsmore complained that the TDCJ was prolonging his incarceration by requiring his participation in several pre-parole programs.
Yet Dunsmore has no due process right to parole. The United States Supreme Court has recognized that there is no constitutional right to be released on parole before the expiration of a valid sentence. See Board of Pardons v. Allen, 482 U.S. 369, 378 n.10 (1987) (explaining that "statutes or regulations that provide that a parole board 'may' release an inmate on parole do not give rise to a protected liberty interest"); Greenholtz v. Inmates of the Neb. Penal & Correctional Complex, 442 U.S. 1, 11 (1979) (holding that a statute which "provides no more than a mere hope that the benefit will be obtained . . . is not protected by due process"); see also Johnson v. Rodriguez, 110 F.3d 299,l 308 (5th Cir. 1997) (explaining that Texas inmates "have no protected liberty interest in parole"). Dunsmore has not asserted that his sentence has expired; instead, he asserts that his parole eligibility has been delayed due to the TDCJ's requirement that he attend these courses. But because Dumsmore has no protected liberty interest in parole, his due process rights have not been violated by the TDCJ's requirement that he participate in these pre-parole programs.
Additionally, Dunsmore's complaints in this suit are quite similar to those he raised in another appeal we decide today, Dunsmore v. Ortiz, No. 14-15-00437. In determining whether a claim is frivolous or malicious, the court may consider whether:
(1) the claim's realistic chance of ultimate success is slight;Tex. Civ. Prac. & Rem. Code § 14.003(b). Because Dunsmore (1) has no realistic chance of success on his claims and (2) his claims arise from the same operative facts as another claim previously filed by Dunsmore, the trial court did not err in dismissing his claims.
(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.
For the foregoing reasons, we overrule Dunsmore's issues.
Conclusion
Having overruled Dunsmore's appellate issues, we affirm the trial court's judgment.
/s/ Sharon McCally
Justice Panel consists of Justices Jamison, McCally, and Wise.