Anthony v. Owens (Tex. App. - Houston [14th Dist.] Jul. 7, 2009)(Brown)   
(
prisoners pro se IFP suit complaining of denial of parole dismissal without opportunity to amend,
dismissal with prejudice, dismissal without evidentiary hearing)
AFFIRMED: Opinion by
Justice Brown     
Before Justices Frost, Brown and Boyce   
14-07-01077-CV Milton James Anthony v. Rissie Owens, Linda Garcia, Charles Aycock, Juanita
Gonzales, Jose Aliseda, Jane/John Doe (1   , Jane/John Doe (2      
Appeal from 412th District Court of Brazoria County
Trial Court Cause No. 44550

M E M O R A N D U M   O P I N I O N

Milton James Anthony, an inmate in the Institutional Division of the Texas Department of Criminal Justice,
appeals the dismissal of his pro se, in forma pauperis action for declaratory relief.  In his petition in the
trial court, Anthony asserted that the members of the Texas Board of Pardons and Paroles (“the Board")
violated his constitutional rights by (1) refusing his requests for parole, (2) refusing him tentative parole
under a 1987 statute, and (3) applying a statute to him when the legislature did not intend the statute to
be applied to defendants convicted under the law of parties.  

The trial court dismissed Anthony's petition with prejudice because it concluded that Anthony “has failed
to state a cause of action as a matter of law."  Liberally construing Anthony's three appellate issues and
argument thereunder, Anthony contends the trial court abused its discretion by concluding that these
claims have no arguable basis in law and by dismissing these claims with prejudice under Chapter 14 of
the Texas Civil Practice and Remedies Code.  

Concluding the trial court did not abuse its discretion in determining that Anthony's claims have no
arguable basis in law and in dismissing them with prejudice, we affirm.

Anthony filed suit in the trial court seeking a declaratory judgment declaring that the Board has
improperly applied certain statutes against him and failed to grant him parole, thus allegedly violating
Anthony's due process rights.  State prisoners, however, cannot challenge parole procedures under the
due process clause.  Nabelek v. Garrett, 14-01-01007-CV, 2003 WL 1738392, at *1 (Tex. App.- Houston
[14th Dist.] Apr. 3, 2003, pet. dism'd w.o.j.) (mem. op.) (citing Johnson v. Rodriguez, 110 F.3d 299, 308
(5th Cir. 1997) and Martin v. Tex. Bd. of Criminal Justice, 60 S.W.3d 226, 230 (Tex. App.- Corpus Christi
2001, no writ)).  Without conducting a hearing, the trial court dismissed Anthony's petition with prejudice
to refiling for failure “to state a cause of action as a matter of law."  The trial court did not mention
Chapter 14 in its order of dismissal, and it did not state any basis for dismissal found in Chapter 14.  See
Tex. Civ. Prac. & Rem. Code Ann. §  14.003 (Vernon 2002); Cooper v. Tex. Dep't of Criminal Justice, 14-
07-00741-CV, 2009 WL 1312944, at *1 (Tex. App.- Houston [14th Dist.] May 12, 2009, no pet. h.) (mem.
op.) (involving dismissal order with the same language).  

Nonetheless, on appeal, Anthony treats the trial court's dismissal as a Chapter 14 dismissal and does not
argue that the trial court erred by dismissing his claims without a hearing and for a basis not stated in
Chapter 14.  Rather, liberally construing Anthony's three appellate issues and argument thereunder,
Anthony contends the trial court abused its discretion by concluding that his claims have no arguable
basis in law and by dismissing these claims with prejudice under Chapter 14 of the Texas Civil Practice
and Remedies Code.  Because the trial court, in an unambiguous order, did not dismiss Anthony's claims
under Chapter 14, and because Anthony does not attack the trial court's dismissal order on this basis, his
challenge necessarily fails and we can affirm on this basis alone. See Cooper, 14-07-00741-CV, 2009
WL 1312944, at *1.  

II

Even if the trial court had dismissed Anthony's claims under Chapter 14, the trial court would not have
erred in concluding that Anthony's claims have no arguable basis in the law.[1]  See id.  Anthony argues
that the Board violated his constitutional rights by denying his requests for parole.  According to
Anthony's complaint in the trial court, he was convicted as a party of capital murder on May 4, 1979.  He
has been denied parole five times and asserts that the only reason the Board listed for denial was
“Nature of the Offense."  Because the nature of his offense is beyond his control, Anthony argues that
the Board has effectively changed his sentence to “life without parole."  There is no constitutional or
inherent right of a convicted person to be conditionally released before the expiration of a valid
sentence.  Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1, 7 (1979).  
Once a person has been convicted of an offense, he has no constitutional right to be released on parole
before completion of his sentence.  Clark v. State, 754 S.W.2d 499, 501 (Tex. App.- Fort Worth 1988, no
pet.).  The decision to release or not release an inmate, even though he is eligible for parole, remains
within the sound discretion of the Board of Pardons and Paroles and is not the basis for a due process
challenge.  See Nabelek, 2003 WL 1738392, at *1; see also Ex parte Geiken, 28 S.W.3d 553, 556 (Tex.
Crim. App. 2000).

Anthony also argues that the Board violated his constitutional rights “by refusing him his tentative parole
month which the 1987 Statute entitled him to have unless he did not meet the requirements set out in the
statute."  In his complaint, Anthony referred to article 42.18 section 8(a) of the Texas Code of Criminal
Procedure, which was amended in 1987.  In 1997, article 42.18 was repealed and replaced by chapter
508 of the Government Code.  Act of May 8, 1997, 75th Leg., R.S., ch. 165, §  12.01, 1997 Tex. Gen.
Laws 327, 415B438, 443.  Although he does not specify exactly which statute gives him the right to a
“tentative parole month," it appears Anthony is referring to section 508.141(g) of the Government Code,
which provides for five-year review intervals for an inmate serving a sentence listed in section 508.149(a).
[2]  See Tex. Gov't Code Ann. §  508.141(g) & 508.149(a) (Vernon 2004 & Supp. 2008).  To bring a due
process claim, the plaintiff must assert a liberty or property interest that is protected by the Fourteenth
Amendment to the United States Constitution.  Board of Regents of State Colleges v. Roth, 408 U.S. 564,
569B70 (1972); Concerned Cmty. Involved Dev., Inc. v. City of Houston, 209 S.W.3d 666, 671 (Tex. App.-
Houston [14th Dist.] 2006, pet. denied).  The Court of Criminal Appeals has determined that there is a
protectable liberty interest in mandatory supervision release under section 508.149 of the Government
Code.  Geiken, 38 S.W.3d at 559.  However, inmates convicted of certain offenses, including capital
murder, are not eligible for mandatory supervision release.  Tex. Gov't Code Ann. §  508.149(a) (Vernon
Supp. 2008).  Therefore, Anthony has no established interest in a “tentative parole date."

Anthony asserts the Board violated his constitutional rights by applying sections of the Government Code
to those convicted under the law of parties because the Legislature did not intend for those statutes to be
applied to those convicted under the law of parties.  Specifically, Anthony claims that sections 508.046,
508.141, 508.145, and 508.149 should not apply to an individual who was not convicted as a principal.  
Section 508.046 provides that a decision to release on parole an inmate who was convicted of a capital
felony must be made by all members of the Board.  Tex. Gov't Code Ann. §  508.046 (Vernon Supp.
2008).  Section 508.141 describes the Board's authority to consider and order release on parole.  Tex.
Gov't Code Ann. §  508.141 (Vernon 2004).  Section 508.145 provides computation of parole eligibility
dates, and section 508.146 provides for medically recommended intensive supervision.  Tex. Gov't Code
Ann. § §  508.145 & 508.146 (Vernon Supp. 2008).  None of the Government Code sections cited by
Anthony state that they do not apply to an inmate  convicted as a party.  Nor has Anthony cited any
authority requiring those convicted under the law of parties to be treated differently than those convicted
as principals.  Section 7.01 of the Texas Penal Code specifically abolished all traditional distinctions
between accomplices and principals.  See Tex. Penal Code Ann. §  7.01(c) (Vernon 2003).  As reflected
by the language of the applicable statutes, the Legislature intended the parole laws in question to apply
equally to one convicted as a party or one convicted as a principal.

For the reasons stated above, the trial court would not have erred in concluding that Anthony's claims
have no arguable basis in law.

III

On appeal, Anthony also complains that the trial court dismissed his petition with prejudice to refiling,
without giving Anthony an opportunity to remedy the problems with his claims by amending his pleadings.  
When reviewing whether a trial court abused its discretion in dismissing an inmate's suit, an appellate
court should consider whether the suit was dismissed with prejudice and, if so, determine whether the
inmate's error could be remedied through more specific pleading.  See Hickman v. Adams, 35 S.W.3d
120, 124 (Tex. App.- Houston [14th Dist.] 2000, no pet.).  The trial court dismissed Anthony's claims on
with prejudice; however, Anthony's claims' lack of an arguable basis in law could not be remedied through
additional pleading.  Therefore, the trial court would not have erred in dismissing Anthony's claims with
prejudice under Chapter 14.  See id.

Accordingly, we overrule Anthony's issues and affirm the trial court's with-prejudice dismissal of Anthony's
petition.

/s/      Jeffrey V. Brown

Justice

Panel consists of Justices Frost, Brown, and Boyce.

[1]  A trial court's dismissal of a claim without conducting a fact hearing can be affirmed on appeal only if
the claim has no arguable basis in law.  Retzlaff v. Texas Dep't of Criminal Justice, 94 S.W.3d 650, 653
(Tex. App.- Houston [14th Dist.] 2002, pet denied).

[2]  Capital murder is one of the offenses included in section 508.149(a).