NO. 12-08-00060-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

MANDELL RHODES, JR., § APPEAL FROM THE 349TH

APPELLANT

V.

JAMES POLAND, CHARLES SHIPMAN, § JUDICIAL DISTRICT COURT OF

PAMELA FREEMAN, LYNN RUZICKA,

ELVIS HIGHTOWER, GERALD GARRETT,

THOMAS FORDYCE, PAUL KIEL,

R. GARCIA, CHARLES SPEIR, AND

HOWARD THRASHER,

APPELLEES § ANDERSON COUNTY, TEXAS

 

MEMORANDUM OPINION

Mandell Rhodes, Jr., an inmate in the Texas Department of Criminal Justice-Institutional

Division (“TDCJ”), proceeding pro se, filed an in forma pauperissuit against Parole Commissioners

James Poland, Charles Shipman, Pamela Freeman, Lynn Ruzicka, Elvis Hightower, Gerald Garrett,

Thomas Fordyce, Paul Kiel, R. Garcia, Charles Speir, and Howard Thrasher (collectively

“Appellees”). In two issues, Rhodes argues that the trial court abused its discretion by dismissing

his suit. We affirm.

BACKGROUND

Rhodes is an inmate. While incarcerated, Rhodes filed an in forma pauperis civil suit against

Appellees seeking a declaratory judgment that Texas Government Code, section 508.0441 is

unconstitutional and that Appellees are, therefore, divested of their authority to determine his parole
See Acts 1983, 68th Leg., p. 6681, S.J.R. No. 13. 1

In his petition for declaratory judgment, Rhodes states that he has standing to bring this suit because his 2

parole was revoked on July 21, 2006 by certain parole commissioners. Rhodes further alleges that he was

subsequently denied a “new parole” by other parole commissioners. 

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eligibility or revoke his parole. In his petition, Rhodes alleged that section 508.0441 is

unconstitutional because it conflicts with the 1983 amendment to article IV, section 11 of the Texas 1

Constitution, which, according to Rhodes, “[vests] the power to determine paroles ‘exclusively’ to

‘Board members[.]’” Thus, Rhodes contends that section 508.0441 conflicts with article IV, section 2

11 because section 508.0441 vests “parole commissioners” with “the clemency power to determine

paroles[.]” In conjunction with his original petition, Rhodes filed a declaration of previous lawsuits,

in which he designated three previously filed actions. 

On January 25, 2008, without conducting a hearing, the trial court found that Rhodes’s suit

was frivolous or malicious and dismissed it. In its order, the trial court found that from Rhodes’s

affidavit of previous filings, “the claim is substantially similar to previous claims” brought by

Rhodes and that the “realistic chance of ultimate success is slight.” This appeal followed.

CONSTITUTIONALITY OF TEXAS GOVERNMENT CODE, SECTION 508.0441

In his first and second issues, Rhodes argues that the trial court erred in dismissing his

lawsuit pursuant to Texas Civil Practice and Remedies Code, section 14.003. We review the trial

court’s dismissal of an in forma pauperis suit under an abuse of discretion standard. Hickson v.

Moya, 926 S.W.2d 397, 398 (Tex. App.–Waco 1996, no writ). A trial court abuses its discretion if

it acts arbitrarily, capriciously, and without reference to any guiding rules or principles. Lentworth

v. Trahan, 981 S.W.2d 720, 722 (Tex. App.–Houston [1st Dist.] 1998, no pet.). The trial courts are

given broad discretion to determine whether a case 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 accrues to the benefit of

state officials, courts, and meritorious claimants. See Montana v. Patterson, 894 S.W.2d 812,

814–15 (Tex. App.–Tyler 1994, no writ). 

In the instant case, the trial court made a finding in its order of dismissal that “the claim is
 We have interpreted the allegations in Rhodes’s petition for declaratory judgment liberally in the interest 3

of justice.

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substantially similar to previous claims” brought byRhodes and that the “realistic chance of ultimate

success is slight.” However, we will affirm a dismissal if it was proper under any legal theory. See

Johnson v. Lynaugh, 796 S.W.2d 705, 706–07 (Tex. 1990); Birdo v. Ament, 814 S.W.2d 808, 810

(Tex. App.–Waco 1991, writ denied).

Rhodes sought a declaratory judgment that Texas Government Code, section 508.0441 is

unconstitutional in light of the 1983 amendment to article IV, section 11 of the Texas Constitution.

Compare TEX.CONST. art. IV, § 11 with TEX.GOVT.CODE ANN.§ 508.0441 (Vernon 2004). Article

IV, section 11 states, in pertinent part, as follows:

(b) In all criminal cases, except treason and impeachment, the Governor shall have power,

after conviction, on the written signed recommendation and advice of the Board of Pardons and

Paroles, or a majority thereof, to grant reprieves and commutations of punishment and pardons; and

under such rules as the Legislature may prescribe, and upon the written recommendation and advice

of a majority of the Board of Pardons and Paroles, he shall have the power to remit fines and

forfeitures. The Governor shall have the power to grant one reprieve in any capital case for a period

not to exceed thirty (30) days; and he shall have power to revoke conditional pardons. With the advice

and consent of the Legislature, he may grant reprieves, commutations of punishment and pardons in

cases of treason.

TEX. CONST. art IV, § 11. Section 508.0441 provides, in pertinent part, that “[b]oard members and

parole commissioners” shall determine which inmates are to be released on parole or mandatory

supervision as well as determinations regarding the continuation, modification, and revocation of

parole or mandatory supervision. See TEX.GOVT.CODE ANN. § 508.0041(a)(1), (4) (Vernon 2004).

In his petition for declaratory judgment, Rhodes argues that since section 508.0041 grants

certain authority to “parole commissioners,” it conflicts with article IV, section 11, which provides

that the governor acts upon the advice of the “Board of Pardons and Paroles, or a majority thereof,”

to grant reprieves and commutations of punishment and pardons. However, “parole” means “the 3

discretionary and conditional release of an eligible inmate sentenced to the institutional division so

that the inmate may serve the remainder of the inmate’s sentence under the supervision of the

pardons and paroles division.” TEX. GOVT.CODE ANN. § 508.001(6) (Vernon 2004). A “reprieve”

is a “[t]emporary relief from or postponement of execution of criminal punishment or sentence.”
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BLACK’S LAW DICTIONARY 1302 (6th ed. 1990). It does no more than stay the execution of a

sentence for a time, and it is ordinarily an act of clemency extended to a prisoner to afford him an

opportunity to procure some amelioration of the sentence imposed. Id. It differs from a

commutation, which is a reduction of a sentence, and from a pardon, which is a permanent

cancellation of a sentence. Id.; see also BLACK’S LAW DICTIONARY 280 (6th ed. 1990) (defining

“commutation”). Neither parole nor mandatory supervision is a commutation of sentence or any

other form of clemency. TEX. GOVT. CODE ANN. § 508.002 (Vernon 2004). As such, Rhodes’s

argument is without merit because article IV, section 11 makes no provision pertaining to the grant

or revocation of parole. Consequently, section 508.0441 is not in conflict with article IV, section

11. Therefore, we hold that the trial court did not abuse its discretion in dismissing Rhodes’s suit.

See TEX.CIV. PRAC. &REM.CODE ANN. § 14.003(a)(2), (b) (Vernon 2002); Johnson, 796 S.W.2d

at 706–07. Rhodes’s first and second issues are overruled.

DISPOSITION

Having overruled Rhodes’s first and second issues, we affirm the trial court’s order of

dismissal.

 SAM GRIFFITH 

 Justice

Opinion delivered October 8, 2008.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(PUBLISH)