IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

CARLOS GARCIA #02126841 §

§

V. § A-20-CV-312-LY

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HAYS COUNTY, TEXAS; CRIMINAL §

DISTRICT ATTORNEY WES MAU; §

and SHERIFF GARY CUTLER §

REPORT AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

TO: THE HONORABLE LEE YEAKEL 

UNITED STATES DISTRICT JUDGE

The Magistrate Judge submits this Report and Recommendation to the District Court

pursuant to 28 U.S.C. §636(b) and Rule 1(f) of Appendix C of the Local Court Rules. Before the

Court is Plaintiff’s complaint. Plaintiff, proceeding pro se, has been granted leave to proceed in

forma pauperis. 

 STATEMENT OF THE CASE

At the time he filed his complaint pursuant to 42 U.S.C. § 1983, Plaintiff was confined in the 

the Bill Clements Unit of the Texas Department of Criminal Justice - Correctional Institutions

Division. Plaintiff was convicted of one count of aggravated sexual assault of a child (count one)

and five counts of indecency with a child (counts two through six). On April 3, 2017, the trial court

sentenced Plaintiff to thirty-five years for the aggravated sexual assault, fifteen years for count two,

ten years for count three, two years for count four, and five years for count five. For count six, the

court sentenced Plaintiff to a ten-year suspended sentence and placed him on community

supervision. The trial court ordered counts one, two, five, and six to run concurrently and counts

three and four to run consecutively. The Thirteenth Court of Appeals affirmed Plaintiff’s conviction
and sentences on March 28, 2019. Garcia v. State, No. 13-17-00218-CR, 2019 WL 1388532 (Tex.

App. – Corpus Christi 2019, pet. ref’d). The Texas Court of Criminal Appeals refused Plaintiff’s

petition for discretionaryreview on August 21, 2019. Garcia v. State, PD-0468-19 (Tex. Crim. App.

2019).

In this civil rights complaint Plaintiff alleges he was arrested on June 22, 2015,

September 20, 2015, and May 11, 2016. Plaintiff asserts he paid his bail regarding his first and

second arrest but was unable to pay regarding his third arrest. Plaintiff alleges bail was set without

inquiring about his criminal history, employment history, family ties, flight risk or ability to pay. 

Plaintiff states he asked for an attorney before the start of his bail hearings but was denied counsel

at all three hearings. Plaintiff sues Hays County, Texas; Wes Mau, Hays County Criminal District

Attorney; and Gary Cutler, Hays County Sheriff. He asks the court to grant declaratory and

injunctive relief. Plaintiff does not specify what declaratory or injunctive relief he seeks. 

 DISCUSSION AND ANALYSIS

A. Standard Under 28 U.S.C. § 1915(e)

According to 28 U.S.C. § 1915A(b)(1), this Court is required to screen any civil complaint

in which a prisoner seeks relief against a government entity, officer, or employee and dismiss the

complaint if the court determines it is frivolous, malicious, or fails to state a claim on which relief

may be granted. See also 28 U.S.C. § 1915(e)(2)(B) (directing court to dismiss case filed in forma

pauperis at any time if it is determined that action is (i) frivolous or malicious, or (ii) fails to state

claim on which relief may be granted).

An action is frivolous where there is no arguable legal or factual basis for the claim. Neitzke

v. Williams, 490 U.S. 319, 325 (1989). “A complaint lacks an arguable basis in law if it is based on

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an indisputably meritless legal theory, such as if the complaint alleges a violation of a legal interest

which clearly does not exist.” Harper v. Showers, 174 F.3d 716, 718 (5th Cir. 1999) (internal

quotation and citation omitted). 

A complaint is factually frivolous when “the facts alleged are ‘fantastic or delusional

scenarios’ or the legal theory upon which a complaint relies is ‘indisputably meritless.’” Eason v.

Thaler, 14 F.3d 8, n.5 (5th Cir. 1994) (quoting Neitzke, 490 U.S. at 327–28). In evaluating whether

a complaint states a claim under sections 1915A(b)(1) and 1915(e)(2)(B), this Court applies the same

standards governing dismissals pursuant to Rule 12(b)(6). See DeMoss v. Crain, 636 F.3d 145, 152

(5th Cir. 2011); see also FED. R. CIV. P. 12(b)(6). To avoid dismissal under Rule 12(b)(6), “a

complaint must contain sufficient factual matter, accepted as true, ‘to state a claim to relief that is

plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555–56, 570 (2007)); see FED.R.CIV.P. 12(b)(6). These factual allegations

need not be detailed but “must be enough to raise a right to relief above the speculative level.”

Twombly, 550 U.S. at 555. A conclusory complaint—one that fails to state material facts or merely

recites the elements of a cause of action—may be dismissed for failure to state a claim. See id. at

555–56.

B. Statute of Limitations

There is no federal statute of limitations for § 1983 actions. Piotrowski v. City of Houston,

51 F.3d 512, 514 n.5 (5th Cir. 1995); Henson-El v. Rogers, 923 F.2d 51, 52 (5th Cir. 1991), cert.

denied, 501 U.S. 1235 (1991). Therefore, the Supreme Court has directed federal courts to borrow

the forum state’s general personal injury limitations period. Owens v. Okure, 488 U.S. 235, 249-50

(1989). In Texas, the applicable limitations period is two years. Moore v. McDonald, 30 F.3d 616,

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620 (5th Cir. 1994) (citing TEX. CIV. PRAC. & REM. CODE ANN. § 16.003(a) (Vernon 1986)). 

Nevertheless, federal law determines when a § 1983 cause of action accrues. Gartrell v. Gaylor, 981

F.2d 254, 257 (5th Cir . 1993). A cause of action under § 1983 accrues when the aggrieved party

knows, or has reason to know of, the injury or damages which form the basis of the action. 

Piotrowski, 51 F.3d at 516.

Plaintiff complains of actions that occurred in 2015 and 2016. Further, he was convicted in

2017. Plaintiff did not execute his complaint until March 15, 2020, well after the expiration of the

two-year limitations period. 

RECOMMENDATION

It is therefore recommended that Plaintiff’s complaint be dismissed as frivolous pursuant to

28 U.S.C. § 1915(e).

It is further recommended that the Court include within its judgment a provision expressly

and specifically warning Plaintiff that filing or pursuing any further frivolous lawsuits may result in

(a) the imposition of court costs pursuant to Section 1915(f); (b) the imposition of significant

monetary sanctions pursuant to Fed. R. Civ. P. 11; (c) the imposition of an order barring Plaintiff

from filing any lawsuits in this Court without first obtaining the permission from a District Judge

of this Court or a Circuit Judge of the Fifth Circuit; or (d) the imposition of an order imposing some

combination of these sanctions. 

It is further recommended that Plaintiff should be warned that for causes of action which

accrue after June 8, 1995, the Texas Department of Criminal Justice, upon receipt of a final order

of a state or federal court that dismisses as frivolous or malicious a lawsuit brought by an inmate

while the inmate was in the custody of the Department or confined in county jail awaiting transfer

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to the Department following conviction of a felony or revocation of community supervision, parole,

or mandatory supervision, is authorized to forfeit (1) 60 days of an inmate’s accrued good conduct

time, if the Department has previously received one final order; (2) 120 days of an inmate’s accrued

good conduct time, if the Department has previously received two final orders; or (3) 180 days of

an inmate’s accrued good conduct time, if the Department has previously received three or more

final orders. See, TEX. GOV’T CODE ANN. § 498.0045 (Vernon 1998). 

It is further recommended that Plaintiff be warned that if Plaintiff files more than three

actions or appeals while he is a prisoner which are dismissed as frivolous or malicious or for failure

to state a claim on which relief may be granted, then he will be prohibited from bringing any other

actions in forma pauperis unless he is in imminent danger of serious physical injury. See 28 U.S.C.

§ 1915(g).

In the event this Report and Recommendation is accepted, adopted or approved, it is 

recommended that the Court direct the Clerk to e-mail a copy of its order and judgment to the TDCJ

- Office of the General Counsel and the keeper of the three-strikes list.

OBJECTIONS

Within 14 days after receipt of the magistrate judge’s report, any party may serve and file

written objections to the findings and recommendations of the magistrate judge. 28 U.S.C. § 636

(b)(1)(c). Failure to file written objections to the proposed findings and recommendations contained

within this report within 14 days after service shall bar an aggrieved party from de novo review by

the district court of the proposed findings and recommendations and from appellate review of factual

findings accepted or adopted by the district court except on grounds of plain error or manifest

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injustice. Douglass v. United Servs. Auto. Assoc., 79 F.3d 1415 (5th Cir. 1996) (en banc); Thomas

v. Arn, 474 U.S. 140, 148 (1985); Rodriguez v. Bowen, 857 F.2d 275, 276-277 (5th Cir. 1988).

SIGNED this 13th day of April, 2020.

_____________________________________

ANDREW W. AUSTIN

UNITED STATES MAGISTRATE JUDGE

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