Opinion by Justice Burgess.
Allen "F" Calton, an inmate at the Michael Unit of the Texas Department of Criminal Justice, appeals from the trial court's order dismissing his lawsuit with prejudice.
We find that the trial court properly determined that judicial immunity bars Calton's claims against members of the Texas judiciary. We further find no abuse of discretion in the trial court's determination that Calton's claims against the court reporter were frivolous under Chapter 14 of the Texas Civil Practice and Remedies Code. Our rulings on these issues are dispositive of this appeal. Accordingly, we affirm the trial court's judgment.
In 2004, Calton was convicted of attempted murder and was sentenced to life imprisonment. Calton appealed his conviction to the Second Court of Appeals. While his appeal was pending, Calton informed his appellate counsel that he had conducted several pretrial hearings pro se and requested that counsel obtain the transcripts from those hearings for him. Calton's counsel asked Steve Schiller, former official court reporter for the 213th Judicial District Court of Tarrant County, about those pretrial hearings. Schiller reported that the hearings pertained to other cases that the State had filed against Calton. Calton's conviction was affirmed by the Second Court of Appeals in November 2005. See Calton v. State, No. 2-04-228-CR, 2005 WL 3082202, at *1 (Tex.App.-Fort Worth Nov. 17, 2005, pet. withdrawn) (mem.op.). Although Calton's counsel filed a petition for discretionary review with the Texas Court of Criminal Appeals, Calton insisted that the petition be withdrawn.
Confident that Schiller failed to file a complete record on appeal, Calton filed a grievance against Schiller with the Court Reporter Certification Board. As a result
Arguing that the "inadequate record" impeded his ability to pursue his legal claims on appeal, Calton sued Schiller. Additionally, Calton named the following as defendants in his lawsuit (1) Sharon Keller, presiding judge of the Texas Court of Criminal Appeals, (2) Terrie Livingston, Chief Justice of the Second Court of Appeals, (3) John Cayce, a former justice on the Second Court of Appeals, (4) Louis Sturns, presiding judge of the 213th Judicial District Court, and (5) Bob Gill, the former presiding judge of the 213th Judicial District Court (collectively Judges). Specifically, Calton argued that the pretrial records were necessary to raise points of error asserting that a Brady
Calton raised claims under 42 U.S.C. Section 1983 and sued Schiller for, among other things, negligence, fraud, and breach of fiduciary duty. According to Calton's eighth amended complaint, which was the live pleading at issue, Schiller and the Judges were sued for (1) failing to prepare and file a complete and sufficient record on appeal, (2) delay in preparing relevant records "Resulting in the Excessive delay and retardation of Calton being Afforded an effective, Fair and meaningful Appeal,"
Although he admitted that all of the defendants, including Schiller, were government officials acting under the color of state law and sued the Judges in their official capacities, Calton sued Schiller both individually and in his official capacity. Calton sought over $1 million in monetary damages against Schiller. He also sought an injunction that authorized an out-of-time appeal and ordered Schiller to provide a complete record.
In support of his claims, Calton filed an affidavit from his court-appointed appellate attorney in the attempted murder case, Barry J. Alford. In his affidavit, Alford clarified that Calton represented himself at his attempted murder trial. Alford swore that he raised points of error in Calton's appellate brief after a careful review of the record and that Calton never objected to the points of error raised and never indicated that he wished to raise any additional issues. Alford stated, "I was never advised by applicant until I received his post conviction application for writ of habeas corpus that he wished to pursue several grounds for error, including ineffective
Asserting both judicial and sovereign immunity, the Judges filed a motion to dismiss for lack of subject matter jurisdiction. On May 21, 2014, the trial court granted the Judges' motion to dismiss. Then, Schiller moved to dismiss the complaint on the basis of qualified immunity
Subject-matter jurisdiction is essential to a court's authority to resolve a case. See Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638-39 (Tex.1999) (per curiam). Whether the trial court has subject-matter jurisdiction is a question of law that we review de novo. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004); Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex.2002). The determination of whether a trial court has subject-matter jurisdiction begins with the pleadings. Miranda, 133 S.W.3d at 226. While the plaintiff has the burden to plead facts affirmatively showing that the trial court has jurisdiction, we construe the pleadings liberally in favor of the pleader, look to the pleader's intent, and accept as true the pleader's factual allegations. See id.; City of Fort Worth v. Crockett, 142 S.W.3d 550, 552 (Tex.App.-Fort Worth 2004, pet. denied). If the pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiff an opportunity to amend. See Peek v. Equip. Serv. Co. of San Antonio, 779 S.W.2d 802, 804-05 (Tex.1989); Cty. of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.2002).
Immunity from suit deprives a trial court of subject-matter jurisdiction. Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex.2006). Calton argues that the trial court erred by dismissing his claims against the Judges. The Judges' motion to dismiss alleged both judicial immunity and sovereign immunity. The order granting dismissal did not specify the basis for dismissal. If dismissal was proper under either theory, the trial court's judgment will be affirmed. See Guar. Cty. Mut. Ins. Co. v. Reyna, 709 S.W.2d 647, 648 (Tex.1986) (per curiam); In re Estate of Hutchins, 391 S.W.3d 578, 585 (Tex. App.-Dallas 2012, no pet.). Because we conclude that dismissal based on judicial immunity was proper, we do not reach the issue of sovereign immunity.
Calton acknowledges the rule of judicial immunity. Yet, citing to Pulliam v. Allen, he argues that his Section 1983 claims are not barred because "judicial immunity is not a bar to prospective injunctive relief against a judicial officer acting in her judicial capacity." Pulliam v. Allen, 466 U.S. 522, 541-44, 104 S.Ct. 1970, 80 L.Ed.2d 565 (1984); see Hailey v. Glaser, No. 06-12-00065-CV, 2012 WL 5872869, at *2 (Tex. App.-Texarkana Nov. 21, 2012, no. pet.) (mem.op.). We do not find that Calton sought prospective injunctive relief.
Calton asked for an injunction that would require the Judges to allow him an out-of-time appeal. To the extent that he "seeks injunctive relief as a `post-conviction remedy,' such relief is unavailable." Hailey, 2012 WL 5872869, at *3. Calton's conviction is final, and he is serving a term of life imprisonment. The exclusive post-conviction remedy in final felony convictions in Texas is through a writ of habeas corpus pursuant to Texas Code of Criminal Procedure Article 11.07. Id.; see TEX. CODE CRIM. PROC. ANN. art. 11.07 (West 2015); Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex.Crim.App.1991) ("We are the only court with jurisdiction in final post-conviction felony proceedings."); see also Parr v. State, 206 S.W.3d 143, 144 (Tex.App.-Waco 2006, no pet.). The post-conviction application for writ of habeas corpus must be filed with the Texas Court of Criminal Appeals. Therefore, the trial court did not have jurisdiction to grant the injunction that Calton sought.
Calton also asked for injunctive relief that would require Schiller to, among other things, provide the missing records and execute an affidavit stating that the omission of the pretrial records from the previous appellate record was not Calton's fault. We also find that such an injunction was not available. "An injunction is not available to `prevent commission of wrongs not imminently threatened.'" Hailey, 2012 WL 5872869, at *3 (quoting Webb v. Glenbrook Owners Ass'n, 298 S.W.3d 374, 384 (Tex.App.-Dallas 2009, no pet.)); see TEX.R.CIV. P. 683. Because Calton did not seek to enjoin the Judges from any wrongdoing or prevent imminent harm, he did not seek prospective relief from the Judges.
We find that the trial court properly determined that it did not have subject-matter jurisdiction over Calton's claims against the Judges because judicial immunity barred these claims. We overrule Calton's first point of error.
"The legislature enacted chapter 14 of the Texas Civil Practice and Remedies Code to control the flood of frivolous lawsuits being filed in Texas courts by prison inmates because these suits consume many valuable judicial resources with little offsetting benefits." Hamilton v. Pechacek, 319 S.W.3d 801, 809 (Tex. App.-Fort Worth 2010, no pet.) (citing Bishop v. Lawson, 131 S.W.3d 571, 574 (Tex.App.-Fort Worth 2004, pet. denied); Thomas v. Knight, 52 S.W.3d 292, 294 (Tex.App.-Corpus Christi 2001, pet. denied)). "[T]he trial court may dismiss an inmate's claim if it finds the claim to be frivolous or malicious." Id. (citing TEX. CIV. PRAC. & REM.CODE ANN. § 14.003; Comeaux v. Tex. Dep't of Criminal Justice, 193 S.W.3d 83, 86 (Tex.App.-Houston [1st Dist.] 2006, pet. denied)). "A claim is frivolous or malicious if it has no basis in law or fact or if its realistic chance of ultimate success is slight." Id. A claim may also be dismissed if "the claim is substantially similar to a previous claim filed by the inmate because the claim arises from the same operative facts." TEX. CIV. PRAC. & REM. CODE ANN. § 14.003(b)(4) (West 2002). Section 1983 claims are also subject to dismissal under Chapter 14.
"We review a dismissal under chapter 14 for an abuse of discretion." Id. "When, as in this case, an inmate's lawsuit is dismissed as frivolous for having no basis in law or in fact but no fact hearing is held, our review focuses on whether the inmate's lawsuit has an arguable basis in law." Id. "While a chapter 14 dismissal is reviewed under an abuse of discretion, the issue as to whether a claim has an arguable basis in law is a legal question that we review de novo." Id. "We will affirm the dismissal if it was proper under any legal theory." Id. (citing Johnson v. Lynaugh, 796 S.W.2d 705, 706-07 (Tex.1990) (per curiam)). "In conducting our review, we take as true the factual allegations in an inmate's petition and review the types of relief and causes of action set out therein to determine whether, as a matter of law, the petition stated a cause of action that would authorize relief. Id. "A claim has no arguable basis in law if it relies upon an indisputably meritless legal theory." Id.
Calton is a prolific filer. Since 2004, Calton has filed at least seven applications for writs of habeas corpus with the Texas Court of Criminal Appeals and seven federal petitions challenging his conviction. See Ex parte Calton, No. WR-65590-13, 2008 WL 2223894, at *1 (Tex. Crim.App. May 28, 2008) (orig.proceeding) (per curiam order) (not designated for publication); Calton v. Stephens, No. 4:14-CV-139-A, 2014 WL 818904, at *1 (N.D.Tex. Mar. 3, 2014) (orig.proceeding) (order) (mem.op.). In 2008, Calton was barred from filing applications for the writ of habeas corpus with the Texas Court of Criminal Appeals unless he could show that he was presenting claims that had not been previously raised. Calton, 2008 WL 2223894, at *1. As established by his affidavit of previous filings, some of Calton's filings raised claims similar or identical to the ones raised against Schiller in this case. Stephens, 2014 WL 818904, at *1 (rejecting the following claim raised by
Specifically, Calton filed suit in Tarrant and Harris Counties raising identical claims against Schiller in 2014, which were dismissed under Chapter 14 or disposed of by summary judgment. All of Calton's prior challenges, including ones raising complaints similar to the ones raised against Schiller, have been rejected. Thus, the trial court reasonably could have found Calton's claims against Schiller frivolous under Section 14.003(b)(4).
Further, although he sought monetary damages against Schiller, Calton also prayed that the trial court grant an out-of-time appeal, which it had no authority to do.
We affirm the trial court's judgment.