NO. 07-04-0265-CV IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL D SEPTEMBER 13, 2005

______________________________ CLARENCE D. BROW N, APPELLANT

V. LUBBOCK COU NTY COMM . COURT, ET AL., APPELLEES

_________________________________ FROM THE 99 TH DISTRIC T COURT O F LUBBOCK COUNTY; NO. 2004-525,430; HONORABLE M ACKEY HAN COCK, JUD GE

_______________________________ Before QUINN, C.J., and REAVIS an d CAMPBELL, JJ.
OPINION Appellant, Clarence D. Brown, appeals the dismissal of his suit pursuant to Ch apter 14 of the Texas Civil Practice and Remedies Cod e. W e affirm the dism issal.
Brown is an inmate confin ed in the Insti tutional Div ision of the Texa s Department of Criminal Justice as a result of a conv iction for sex ual assault i n 199 7 or 1998. In February2004 he br ough t suit again st th e Lub bock Coun ty Commissi oners Court, the commis sioners, the Lubbock Count y District Attorney

and the judge of the 72 nd Distri c t1 The Lubbock County defendants includethe Commissione rs Court, its members Kenny Maines, James Kitten, Gilbert Flores and Pa tti Jones, and Lubbock Cou nty District Attorney W illiam Sowder.

2 Tex. Civ. Prac. & Rem. Code Ann. Ch. 101 (Vernon 200 5). 2 Court, Blair Cherry, all eging they deprived h im of constituti onal righ ts by cr eating and applying procedures which denied him the ass ista nce of counsel pri or to his i ndictment. He also alleg ed the distri ct attorney engaged in malicious pr osecution. Appel lants ought recovery of $300,000. 00 in actual damages , plus puniti ve damages fro m each defendant. He attached an aff idavit of indigence and copy of his inmate trust account statem ent to his petition. An amended petitio n added 364 th District Judge Bradley Underwood and Lubbock County Magistrate Judge David Hazlewood as defendants.
The Lubbock County

defendants 1 filed an answer includin g a plea to th e jurisdic tion asserting sovereig n immunity and affirmative def enses including the failure to give notice of clai m under

the Texas Tort Claims Act, 2 failure to comply with Chapter 14 of the Civil Practice and Rem edies Co de, and limitati ons. In a separat e answer th e district judge defendants asserted defenses of absolute immunity , limitations , and the failure to comply with Chapter 14 of the C ivil Pr actice an d R emedies

Code. They a lso al leged the cl aims were friv olous and soug ht recover y of attorney ’s fees and costs

. The district

judge defendants fil ed a motion to dismi ss pursuant to Chapter 14. The motion sought dismissal without prejudice on the basis appellant failed to f ile an affidavit
or statement of prev ious suits (§14.004), the dispositio n of administrative grievance (§14.005), or certified copy of his i nmate trust acco unt (§14.00 6(f )). It soug ht dismissal3 The record does not show whether th e motion to dismi ss was pr esented to the trial court be fore it s ruling. 3 with prejudice und er sect ion 14.003 on the ba sis the suit was frivolous or malicious, arguing the suit had no p robability of success becaus e judges have absolute immunit y and the clai ms we re barred by the tw o-ye ar li mitati ons app licab le to a ction s under Ti t le 42, Section 1983 of the U nited States Co de.
The trial courtdismissed the claims against all defe ndants, with prejudice, on April 14, 2004. 3 The order rec ites appel lan t’s claims lack an arguable basis in law and were dismissed pursuant tosection 14.003. It also dis missed for failure to compl y wi th sections 14.004, 14.005, and 14.006(f). Appel lant perfected appeal from that order and filed a motion for

rehearing . The motion for rehearing detail ed the authority on which appel lant reliesto support hi s position the defendants illegal ly denied hi m the timely assistance of counsel. In the motion appellant also argued the trial court’s dismissal for failure to comp ly wi th th e procedural requirements ofChapter 14 should not have been with prejudice because any such defects can be cured. Appell ant attached a declarat ion of previously filed suits to his motion for rehearing. Tha t document listed ten suits, e ach of which were petitionsfor habeas corpusarising ou t of his sexual assault conviction. The trial court denied the motion by

express order on May

11, 2004. App ellantn ow presents five issues on appeal, asking (1) whether the trial court abused its discr

etion in dismiss ing his s uit with prejudice unde r sections 14.004 , 14.005, and 14.006(f) of the Ci vil Pr actice & Remedi es Code, (2) whether hi s claims la ck an
ar guable basis in l aw, (3) whether he w as denied the ass istance of counsel at a criti ca l4

stage, (4) whe ther the polic y and procedure used by the District Courts of Lubbock County violateArticle V, Section 12( b) of the Texas C onstitution and the U.S. Constitutio n, and (5) whether the defendants’ appli cation of Artic les 32.001 and 28.061 of the Code of Criminal Procedure v iolated his feder al due processrights.
The district

judge defendants r

espond wit h a brief argu ing dismis sal was proper under sec tion s 14. 005 a nd 14 .006 (f)because appellant failed to file affidavits that he exhausted administrati ve remediesand of his previoussuits. They also arguethe suit was properlydismissed asfrivo lous. The Lubbock County defendants’ brief adopts the argument

of the distric

t judge defendants, adding that di smissal was proper based on appella nt’s failure to compl y wi th section 14.004, requiri ng a separate affidavit lis ting previous suits.
We address appell ant’s issues and supporting arguments i n the order he pr esents them. Texas cour

ts have cons istently

held the affidavi t of previousfilings r equired by
sec tion 14 .004 is a procedural matter w hich can be cur ed by amendment. See, e.g. , Thomas v. Skinner

, 54 S.W.3d 845, 847 (Tex.App.–Corpus Christi 2001, pe t. deni ed); Hickm an v. Ad ams , 35 S.W.3d 120, 125 (Tex.App.–Hous ton [14 th Dist.] 2000, no pet

. ). The record show

s app ell ant d id corr

ect the d efe ct by filin g a declaration of his previ ous suits as an attachment to his motion for r ehearing. We agree dismissal w ith prejudice w as not proper under

section 14.004.
Section 14.005 applies to suits arising out of a claim “subject to the grievance system established und er Section 501.0 08 [of the] GovernmentCode.” When applicable,5

itrequires

the inm a te to provi de the date the grievance w as filed, the date of the written decision and a copy of that decision. S ection 501.008 of the Government C ode directs t he Department of Crimina l Justice to create a grievance system for inmates. The system is the exclu sive administrati ve remedy for “a claim for

relief agai nst the department t hat arises while the inmate is housed in a facil ity operated by [or for] the departme nt[.]” Tex. Gov’t Code Ann. § 501.008(a) (Vernon 2004). Appe llan t’s claims are not subject to the grievance system under Section 501.008 because they are not against the Department or its employees and did not arise during his confinement. Consequently, section 14.005 is inapplicable to appellant’s suit and it does not sup port the tri al court’s dismissal of that suit.
On appeal the dist rict judg e defendants concede appel lanthad filed a certified copy of his inmate trust account statement as required by section 14.006(f). We agree and find the dismissal was not supported on that basis. We sustain appell ant’s first i ssue. That holding does not require reversal of the trial court’s order unless no other basis supports the dismissal.
In his second issue appellant challen ges dism issal of his suit as frivolous un der secti on 14.003(a)(2) . The statute sets forth factors a trial court may cons ider i n determining whether a claim is frivolous. They incl ude whether (1) the claim’s realistic chances of success are slight, (2) the claim has no arguable ba sis in law or in fact, (3) it is clear the par

ty cannot pr

ove facts suppor

ting the claim, and (4 ) the claim is substantially simi lar to a pre vious claim beca use i t aris es f rom t he sa me o pera tive facts. Id. The trial court’s or

der of dismissal recited its finding the c laims lack an arguable bas is in law

.6

Appellant’s argument suppor ting his second and third issues focuses on the merits of his claim t hatthe period betw een his arres t and indictment was a “c ritical s tage” of the proceeding against hi m at which the right to counsel attach ed, and the failure to appoint counsel deprived h im of a right s ecured by t he constitutio n. He conclude s this depri vation supports a cl aim under Title 4 2, Section 1983 of the United States C ode. Judges acting in their judi cial capaci ty have immunity from l iability and suit for judicial acts performed within the scope of their j urisdicti on. See Dallas County v. Hal sey , 87 S.W.3d 552, 554 (Tex. 2002). This immuni ty exten ds to actions thatare done in error, mali ciou sly, and e ve n in excess of the judge's au thority. See Stump v. Sparkman , 435 U.S. 349, 356-57, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978). Itis over come only for ac

tions thatare: (1) nonjudicial, that is, not take n in t he ju dge's off icial capa city; or (2) ta ken in the complete absence of al l jurisdi ction. Mireles v. Waco , 502 U.S. 9, 11- 12, 112 S.Ct. 286, 116 L.Ed.2d 9 (1991) . Appellant’s pet ition clea rly alleges the judicial defendants were acting in their judicial capacities. It does not allege they acted in the complet e absence of jurisdict ion. Appellant did not address app ellees’ claims of immunity in the trial court or

his initial brief on appeal. In a reply brief, appellant argues judicial immun ity does not apply to claims for declaratory relief. Such an exception would be inapplicable here because the onlyrelief sought in appellant’s petition was recovery of money damages. The trial court did no t abuse its di scretion in finding the cl aims against district judges Bla ir Cherr

y and4 See Tex. Gov’ t Code Ann. § 54.874 (Ve rnon 2005) (providing magistrate in

Lubbock County

has the same immunit y as a dis trict judg e.) 7 Bradley Underwood, and magistr ate judge Dav id Hazlewood 4 lack an arguable basis in l aw and dismissin g the clai ms against th ose defendants. Prosecuting attorneys also enjoy immunity w hen performing i n their rol e as prosecutors. Imbler v

. Pachtman , 4 24 U.S. 409, 96 S.Ct. 984, 4 7 L.Ed.2d 128 (1976 ). Texas courts have followed federal courts and consistently held as a matter of law that absolute imm un ity extends to quasi-judicial officers, including prosecutors perf orming such typical prosecutori al functions as i nitiating criminal pr osecution and presenting the State's
c ase. Oden v. Reader , 935 S.W.2d 470, 474-75 (Tex.App.- -Tyler 1996 , no pet.). Eve n allegations a prosecutor’ s decisions were the r esult of bribes are insufficient to destroy immunity. Clawson v. Wharton C ounty , 941 S.W.2d 267, 271 (Tex.App.-- Corpus Christi 1996, writ denied). The record supports a conclusion by the tria l cour t that the Lubbock County District At torney was ac ting in a qu asi-ju dicial capac ity and is immune from appellant’s clai ms. The trial court did no t abuseits d iscr etion i n dismi ssing the cl aims against District Attorney W illiam Sowder.
Individuals acting in a legislative capacity are also immune from liability for their legis lati ve actions. In re Perry , 60 S.W.3d 857, 8 59 ( Tex. 2001). Leg islative immunity applies to legisl ators at the federal , state, and local levels of government. Joe v. Two Thirty Nine Joint Venture , 145 S.W.3d 150, 157 (Tex. 2004), citing Bogan v. Scott-Harris , 523 U.S. 44, 53, 118 S.Ct. 9 66, 140 L.Ed.2d 79 ( 1998). Commiss ioners court duties include legisla tive, executive and judicial functions. Ector County v. Stringer , 843 S.W.2d8

477, 478 (Tex. 1992). The adop tion of a policy by a commissioner’s court is legislative in nature bec ause it reflects a dis cretionary , policy making decis ion of general application. See In re Perry , 60 S.W.3d at 860. Appellant’s c lai ms against th e members of the commissioners court arise from their performa nce of legislat ive functions and are barred by those defenda nts’ legislative immunity. The trial court did not abuse its discretion in dismissing appellant’s c laims again st the members of the commissioners’ court.
To any extent appellant’snaming the Lubboc k County Commissioner’s Court as a defendantimplicates L ubbock County , we note that the county

is protec ted by sover eign immunity as a subdiv ision of the state. Catalina Development, Inc. v. County of El Paso , 121 S.W .3d 704, 705 (Tex. 2003 ). Unle ss wai ved, sovereign immuni ty deprives a trial courtof subject matter

jurisdic tion. Texas Dept. of Parks & Wil dlife v. Mi

randa , 133 S.W.3d 217, 224 (Tex. 2004) . Appellant di d not plead any waiver of sovereign immunity applicable to the Lubbock Count

y Commissi oners Court and dismissal of his claims agai nst tha t defendant was proper.
We find the trial court did not err in dis missing appel lant’s suit as frivol ous pursuant to section 14.003 of the T exas Civil Practice & Remedies Code. W e overrule his second issue. Appellant ’s remaini ng issues seek, in effect, decl arations that t he policies and proceduresused for appointment of counsel in criminal cases in Lubb ockCounty deprived him of a constitution al right. Such determina tions would not affect th e outcome of th is procee ding, and our addressing the issues would resultmerely in advisory opinions which
we may not issue. See Valley Bapti st Medical Ctr. v. Gonz

alez , 33 S.W.3d 821, 822 ( Tex.9

2000). See also T ex. R. App. P. 47.1 (opi nion must address those issues necessary to final disposit ion of the appeal). We aff irm the tri al court’s order.

James T. Campbell Justice