* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-51148

LEROY ANTHONY BACA, et al.,

Plaintiffs-Appellants,

v.

RISSI L. OWENS, et al.,

Defendants-Appellees

Appeal from the United States District Court 

for the Western District of Texas

USDC No. 1:05-cv-01009-SS

Before HIGGINBOTHAM, STEWART, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Plaintiffs-Appellants, over five hundred Texas inmates and parolees,

appealthe district court’s dismissal oftheir suit challenging various policies and

procedures of the Texas Board of Pardons and Parole (“TBPP”). Because we

agree that Plaintiffs have failed to state a claim for relief, we affirm the decision

of the district court.

United States Court of Appeals

Fifth Circuit

F I L E D

August 7, 2008

Charles R. Fulbruge III

Clerk
No. 07-51148

1 Defendants Rissi L. Owens, Jose Aliseda, Jr., Charles Aycock, Jackie DeNoyelles,

Linda Garcia, Juanita M. Gonzales, and Elvis Hightower are members of the TBPP.

Defendants Gerald Garrett, Thomas G. Fordyce, Pamela D. Freeman, James Paul Kiel, Jr.,

James C. Poland, Lynn Ruzicka, Edgar Morales, Charles Shipman, Charles C. Spier, and

Howard A. Thrasher, Sr. are Parole Commissioners. Defendant Christina Melton Crain is the

Chair of the TBCJ. Brad Livingston is the Executive Director of the TDCJ; Nathaniel

Quartermanis theDirector ofthe Correctional InstitutionsDivisionofTDCJ;PamelaWilliams

is a Deputy Director for Support Services of the Correctional Institutions Division of TDCJ;

and Rebecca Price is Assistant Director for Classification and Records.

2

I.

On December 5, 2005, Plaintiffs filed this § 1983 suit against the Board

Members and the Parole Commissioners of the TBPP; the Chair of the Texas

Board of Criminal Justice (“TBCJ”); the Executive Director, the Corrections

Institutions Director, and various administrators of the Texas Department of

Criminal Justice (“TCDJ”) (collectively, “State Officials”), in their official and

individual capacities.1 Plaintiffs sought monetary damages, declaratory relief,

prospective injunctive relief, and habeas corpus relief, as well as class

certification under Federal Rule of Civil Procedure 23. 

In their Fourth Amended Complaint, the most recent live pleading,

Plaintiffs sought declaratory and injunctive relief and asserted the following

federal claims challenging Texas’s parole policies and procedures: violation of

Separation of Powers; violation of the Sixth Amendment right to jury trial;

violation of the Fifth Amendment Double Jeopardy clause; violation of Article 1,

Section 10, the Ex Post Facto clause; and violation of the Thirteenth

Amendment’s prohibition of involuntary servitude. Plaintiffs also sought class

certification. The State Officials filed a motion under Federal Rule of Civil

Procedure 12(b)(6) to dismiss all federal claims on December 15, 2006, and the

district court held a hearing on the motion on June 21, 2007. On August 28,

2007, the district court granted the State Officials’ motion to dismiss, denied the

Plaintiffs’ motion for class certification, and entered final judgmentfor the State

Officials dismissing the Plaintiffs’ claims. Plaintiffs appealed.
No. 07-51148

3

On appeal, Plaintiffs do not challenge the district court’s denial of their

motion for class certification, nor do they challenge the district court’s dismissal

of their claims under the Double Jeopardy Clause, the Ex Post Facto Clause, or

for involuntary servitude. Plaintiffs appeal only the denial of their Separation

of Powers, Sixth Amendment, and due process claims.

II.

We review de novo a district court’s Rule 12(b)(6) dismissal of a complaint.

Muhammad v. Dallas County Cmty. Supervision & Corr. Dep’t , 479 F.3d 377,

379 (5th Cir. 2007). In construing the complaint in a light most favorable to the

plaintiff, this court affirms a 12(b)(6) dismissal if we determine thatthe plaintiff

“would not be entitled to relief under any set of facts or any possible theory that

he could prove consistent with the allegations in the complaint.” Id. at 379-80

(internal quotation omitted). 

III.

To the extent that Plaintiffs’ complaint alleges a claim under the federal

Separation of Powers doctrine, the district court’s dismissal of this claim was

proper. Plaintiffs’ claims involve only state branches of government.

Accordingly, they have not established a federal constitutional violation based

on the Separation of Powers doctrine. See Sweezy v. New Hampshire, 354 U.S.

234, 255 (1957).

IV.

Plaintiffs next contend that their Sixth Amendment “jury rights” are

violated “when administrators consider core questions of guilt or innocence,

followed by a conviction of new criminal behavior which modifies a judicial

decree in such a way that serving the sentence becomes clearly more severe.”

Beyond this bare assertion,Plaintiffs provide no legal or factual supportfor their

argumentthatthe Sixth Amendmentis implicated by Texas’s parole policies and
No. 07-51148

2 The one case cited to by Plaintiffs, Johnson v. T.D.C.J., 910 F. Supp. 1208, 1229 (W.D.

Tex. 1995) is inapposite for two reasons. First, the case does not address the Sixth

Amendment right to jury trial. Second, the case was overruled by this circuit in Johnson v.

Rodriguez, 110 F.3d 299 (5th Cir. 1997).

4

procedures.2 As such, they are deemed to have abandoned this claim on appeal.

See FED. R. APP.P. 28(a)(9); Brinkmann v. Dallas County Deputy Sheriff Abner,

813 F.2d 744, 748 (5th Cir. 1987) (stating that this court will not raise and

discuss legal issues that an appellant has failed to assert). In any event,

Plaintiffs’ argument is without merit. It is well-settled that parole is “part of

the penalty for the initial offense,” Johnson v. United States, 529 U.S. 694, 700

(2000), and that“once the original sentence has been imposed in a criminal case,

further proceedings with respect to that sentence [have not been] subject to

Sixth Amendment protections.” United States v. Work, 409 F.3d 484, 491 (1st

Cir. 2005); United States v. Hinson, 429 F.3d 114, 119 (5th Cir. 2005) (holding

that defendant is not entitled to a jury trial to determine whether terms of

supervised release have been violated). 

V.

Plaintiffs also assert a number of due process violations. First, they

contend that the TBPP violates Plaintiffs’ due process rights by considering

factors not published in either the Texas Government Code or Texas

Administrative Code, such as the nature of the crime and past criminal history,

when making a parole determination. Plaintiffs maintain that the statutorily

and administratively mandated parole suitability factors are not being taken

into account, and that the TPBB’s reliance on “unchanging” factors constitutes

a due process violation. Second, Plaintiffs assert that parolees facing revocation

are not being given timely preliminary and revocation hearings in violation of

their due process rights.

The protections of the Due Process Clause are only invoked when State

procedures which may produce erroneous or unreliable results imperil a
No. 07-51148

3 Plaintiffs rely on Biggs v. Terhune, 334 F.3d 910, 917 (9th Cir. 2003), which noted

that: “A continued reliance in the future on an unchanging factor, the circumstance of the

offense and conduct prior to imprisonment, runs contrary to the rehabilitative goals espoused

by the prison system and could result in a due process violation.” However, that case is

inapposite because, unlike the Texas parole scheme, “California’s parole scheme gives rise to

a cognizable liberty interest in release on parole.” Id. at 914.

5

protected liberty or property interest. See, e.g., Olim v. Wakinekona, 461 U.S.

238, 250-251(1983); Johnson v. Rodriguez, 110 F.3d 299, 308 (5th Cir. 1997).

Texas law does not create a liberty interestin parole thatis protected by the Due

Process Clause, and Texas prisoners have no constitutional expectancy of release

on parole. Madison v. Parker, 104 F.3d 765, 768 (5th Cir. 1997); Orellana v.

Kyle, 65 F.3d 29, 32 (5th Cir. 1995).3“It is therefore axiomatic that because

Texas prisoners have no protected liberty interest in parole they cannot mount

a challenge against any state parole review procedure on procedural (or

substantive) Due Process grounds.” Johnson, 110 F.3d at 308. Therefore, as

Plaintiffs’ first due process claim relates solely to the parole policies and

procedures, the district court did not err in dismissing this claim. See Orellana,

65 F.3d 29 at 31(denying claim that parole review procedures deny due process

because they give no advance written notice of hearings, no opportunity to be

heard, and deny access to materials and right to be accompanied by person of

choice); Brandon v. District of Columbia Bd. of Parole, 823 F.2d 644, 649 (D.C.

Cir. 1987) (holding that “procedures adopted by the state to guide its parole

release determinations are not themselves liberty interests entitled to

constitutional due process protection”).

In contrast, parole revocation hearings do come within the protection of

the due process clause. Morrissey v. Brewer, 408 U.S. 471, 482 (U.S. 1972). In

the parole revocation context, due process requires that a parolee be given, “as

promptly as convenient,” a “‘preliminary hearing’ to determine whether there is

probable cause or reasonable ground to believe that the arrested parolee has
No. 07-51148

6

committed acts that would constitute a violation of parole conditions.” Id. at

485. The parolee must also have an opportunity for a hearing prior to the final

decision on revocation by the parole authority, tendered within a reasonable

time after the parolee is taken into custody. Id. at 488. “This hearing must be

the basis for more than determining probable cause; it must lead to a final

evaluation of any contested relevantfacts and consideration of whether the facts

as determined warrant revocation.” Id. To establish a due process violation

based on the untimeliness of a parole revocation proceeding, a plaintiff must

show more than an unreasonable delay; “[t]he parolee must also show that

actual prejudice was caused by the unreasonable delay.” Villarreal v. United

States Parole Com., 985 F.2d 835, 837 (5th Cir. 1993).

Here, Plaintiffs’ complaint alleges that the State Officials have a practice

and procedure of delaying both the preliminary hearing and the parole

revocation hearing for months, and in some cases, as much as a year. However,

the district court found that Plaintiffs failed to demonstrate that they suffered

any actual prejudice from this delay. We agree. Plaintiffs contend that they

were prejudiced in two ways. First, they argue that because of the delay “the

parole decision-maker is compelled to find a violation or create one if none exists,

due to the possibility of a lawsuit for wrongful incarceration.” Second, they

allege that parole-decision makers will be less likely to impose less forms of

punishment, such as community service, because this “would also be an

admission thatthe lengthy pre-hearing detention was unwarranted.” Plaintiffs,

however, do not list a single example of either of these possibilities of prejudice

actually occurring. Instead, Plaintiffs’ allegations of prejudice are based on mere

speculation, and as such, are insufficient to demonstrate the actual prejudice

required to support their claim of a due process violation. See id. at 838

(rejecting parolee’s claim of prejudice where parolee offered nothing but

conclusory allegations in support of his claims of prejudice);Fassler v.Pendleton,
No. 07-51148

7

40 Fed. App’x 379, 380 (9th Cir. 2002) (parolee’s speculative assertion that delay

“created the possibility his defense would be prejudiced by loss of witnesses over

time” insufficient to support allegation of due process violation). Therefore, the

district court did not err in dismissing this claim. 

VI.

For the reasons set forth above, the judgment of the district court is

AFFIRMED.