Opinion issued June 7, 2012

In The

Court of Appeals

For The

First District of Texas

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NO. 01-11-00890-CV

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victor cruz Gonzales, Appellant

V.

maritza antu, Appellee

On Appeal from the 151st District Court

Harris County, Texas

MEMORANDUM OPINION

          Appellant, Victor Cruz Gonzales,[1] an inmate in the Texas Department of Criminal Justice-Institutional Division (the “Department”), challenges the trial court’s order dismissing, under Chapter 14 of the Texas Civil Practice and Remedies Code,[2] his lawsuit against appellee, Maritza Antu, for wrongfully accusing him of criminal conduct, “incarcerating him,” “taking” his liberty and real property, violating the Texas Tort Claims Act[3] through various “acts or omissions,” and breaching her duty as a public servant.[4]  In four issues, Gonzales contends that the “criminal prosecution against [him] was devoid of evidentiary support”; “exculpatory evidence proves his innocence”; he is entitled to “compensatory and punitive damages stemming” from his “wrongful imprisonment” and “deprivation of civil rights”; there was a “conspiracy” relating to his criminal conviction; Antu and Judge Mary Bacon “misuse[d] state property and abuse[d] their offices”; he has been “deprived of property, [and] loss of liberty without due process”; and he is entitled to “actual and exemplary damages for unlawful action.”     

          We affirm.         

Background

Gonzales was convicted of the offense of aggravated assault[5] in the 183rd district court of Harris County, and, on May 8, 2008, the Fourteenth Court of Appeals affirmed his conviction.  Gonzales v. State, No. 14-07-00277-CR, 2008 WL 1991776, at *1 (Tex. App.—Houston [14th Dist.] May 8, 2008, pet. ref’d) (mem. op.).  The Honorable Mary Bacon presided over the trial in which Gonzales was convicted, and Antu was the assistant district attorney who prosecuted the aggravated assault case against him.  On August 8, 2011, Gonzales filed in the underlying court his “Civil Action for Damages for Wrongful Acts in Deprivation of a Right Secured by the Constitution and Laws of this State.”  In this petition, Cruz alleged that Antu and Bacon had, among other things, misused governmental property, committed official misconduct, violated the Texas Tort Claims Act, and wrongfully incarcerated him for a period of 20 years.  Cruz further alleged that Antu had committed her conduct while acting as a public servant. 

Antu filed an answer in which she asserted the affirmative defenses of prosecutorial immunity, qualified immunity, and official immunity.  The trial court, citing section 14.003 of Chapter 14,[6] dismissed Gonzales’s claims.  In its dismissal order, the trial court found that Gonzales’s claims had “no realistic chance of ultimate success” and “no arguable basis in law or in fact”; Gonzales could not “prove facts in support of the claim[s]”; Gonzales had failed to serve Judge Bacon with his suit; even if Gonzales had served Judge Bacon with the suit there was nothing “in his pleadings that would suggest she [] waived her absolute judicial immunity”; and “[t]here [was] nothing in the record or [] Gonzales’s pleadings that would negate any of Maritza Antu’s affirmative defenses.”    

Standard of Review

We generally review a trial court’s dismissal of an inmate’s suit under Chapter 14 for abuse of discretion.  See Thompson v. Tex. Dep’t of Criminal Justice-Inst. Div., 33 S.W.3d 412, 414 (Tex. App .—Houston [1st Dist.] 2000, pet. denied); Wilson v. TDCJ-ID, 268 S.W.3d 756, 758 (Tex. App.—Waco 2008, no pet.).  When a lawsuit is dismissed as frivolous for having no basis in law or in fact, and no fact hearing was held, our review focuses on whether the inmate’s lawsuit has an arguable basis in law, which we review de novo.  Scott v. Gallagher, 209 S.W.3d 262, 266 (Tex. App.—Houston [1st Dist.] 2006, no pet.).  A claim has no arguable basis in law if it is based on an indisputably meritless legal theory.  Id. In conducting our de novo review, we take as true the allegations of the inmate’s petition.  Id.

Dismissal

Within the substantive argument portion of his appellate brief, Gonzales asserts that the “alleged victim” of the aggravated assault “did not direct [his] arrest,” Antu and the “grand jury exercised sole discretion in deciding to prosecute,” “the jury should not have concluded that the prosecution ended in the State’s favor,” there was no “probable cause to commence the criminal proceeding,” there was a conspiracy between Antu and Judge Bacon in “allowing grand jury proceedings,” Antu and Bacon “cannot successfully maintain the defense of immunity,” “malice can  be inferred from the initiation of a prosecution without probable cause,” Antu and Bacon have misused State property and “prevented” a fair proceeding to determine his “actual innocence,” he was deprived of property and liberty without due process, and the “illegal conviction reflected negatively on [his] character.”

Chapter 14 of the Texas Civil Practice and Remedies Code governs inmate litigation.  See Tex. Civ.  Prac. & Rem. Code Ann. §§ 14.001–.014 (Vernon 2002 & Supp. 2011).  Under Chapter 14, a trial court may dismiss an inmate suit brought in forma pauperis, either before or after service of process, by finding that it is frivolous or malicious.  Id. § 14.003(a)(2). In determining whether a claim is frivolous or malicious, the trial court may consider whether: (1) the claim’s realistic chance of ultimate success is slight; (2) the claim has no arguable basis in law or in fact; (3) it is clear that the party cannot prove facts in support of the claim; or (4) the claim is substantially similar to a previous claim filed by the inmate because the claim arises from the same operative facts.  Id . § 14.003(b)(1)–(4).  In finding that a claim is frivolous or malicious, the court “may” hold a hearing “before or after service of process” and “it may be held on motion of the court, a party, or the clerk of the court.”  Id. § 14.003(c).

First, to the extent that Gonzales appears to be challenging matters that could have been or were raised in his direct appeal, we note that our sister court has previously affirmed Gonzales’s conviction following his direct appeal.  Gonzales, 2008 WL 1991776, at *1.  Second, we note that many of the issues raised by Gonzales in his appellate brief, which are not entirely consistent with those matters that he raised in his petition, would more appropriately be brought in an application for writ of habeas corpus rather than in a civil lawsuit brought against the prosecutor and trial judge of the convicting court.  See Blakeney v. State, No. 06-07-00064-CV, 2007 WL 2947576, at *2 (Tex. App.—Texarkana Oct. 11, 2007, pet. denied) (mem. op.) (dismissing inmate civil suit pursuant to chapter 14 and noting that “relief ultimately sought . . . [was] more properly the subject of an application for writ of habeas corpus”). 

Third, we conclude that to the extent that Gonzales has alleged any facts that relate to any possible claim against Antu, in either his petition or his appellate briefing, Gonzales’s claims, as alleged, are barred by prosecutorial immunity.  See Charleston v. Pate, 194 S.W.3d 89, 90 (Tex. App.—Texarkana 2006, no pet.) (“District attorneys and other prosecutors are absolutely immune from liability when performing their prosecutorial functions.”); Bradt v. West, 892 S.W.2d 56, 69–70 (Tex. App.—Houston [1st Dist.] 1994, writ denied) (“Under the functional approach, a prosecutor’s acts that are intimately associated with the judicial phase of the criminal process are protected by absolute immunity.”) (citation omitted); see also Blakeney, 2007 WL 2947576, at *1 (stating that district attorneys and prosecutors are “absolutely immune from liability when performing their prosecutorial functions,” and holding that trial court correctly dismissed inmate litigation brought against prosecutors because alleged acts “were all performed in representing the State in prosecuting the multiple criminal cases” and were “intimately connected with the judicial process”). 

Additionally, to the extent that Gonzales has alleged any facts that relate to any possible claim against Judge Bacon, Gonzales’s claims, as alleged, are barred by judicial immunity.  See Bradt, 892 S.W.2d at 66 (citation omitted) (“The judges of Texas courts have absolute immunity for their judicial acts unless such acts fall clearly outside the judge’s subject-matter jurisdiction.”). 

Accordingly, we hold that the trial court did not abuse its discretion in dismissing Gonzales’s claims.

We overrule Gonzales’s four issues.

Conclusion

We affirm the order of the trial court.

                                                                   Terry Jennings

                                                                   Justice

Panel consists of Chief Justice Radack and Justices Jennings and Keyes.