Russell Eugene Galer, II v. Freestone County District Attorney and Assistant Warden Caskey ( 2001 )

Russell Eugene Galer, II v. Freestone County District Attorney and Asst. Warden Caskey

  IN THE

TENTH COURT OF APPEALS

No. 10-01-111-CV

     RUSSELL EUGENE GALER, II,

                                                                              Appellant

     v.

     FREESTONE COUNTY DISTRICT ATTORNEY

     AND ASSISTANT WARDEN CASKEY,

                                                                              Appellees

From the 87th District Court

Freestone County, Texas

Trial Court # 01-039-B

MEMORANDUM OPINION ON REHEARING

      Russell Eugene Galer filed what has been construed as a notice of appeal from an order dismissing his cause of action as frivolous under Chapter Fourteen of the Texas Civil Practice and Remedies Code. The clerk’s record was filed in April of 2001. The time for filing Galer’s brief passed, and we notified him that this appeal would be dismissed for want of prosecution unless he filed a brief or otherwise showed grounds to continue the appeal. Tex. R. App. P. 38.8(a)(1). We did not receive a timely response.

      On October 31, 2001, we dismissed the appeal for want of prosecution. Tex. R. App. P. 38.8(a)(1). We stated that we had received no communication from Galer. This statement was not accurate. On October 3, 2001, we received a document entitled “Unsworn Declaration of Fact” from Galer. In the declaration he explained why he had not responded earlier to the letter regarding his failure to file a brief. Galer has now filed a Motion for Rehearing of our opinion dismissing his appeal. Galer’s Motion for Rehearing is granted, and our October 31, 2001, opinion dismissing his appeal for want of prosecution is hereby withdrawn.

      In the Declaration of Fact, Galer has informed the court that what he sent to Freestone County was a complaint regarding what he believes to constitute the criminal offense of official misconduct. Accordingly, Galer concludes that we have erred in characterizing this as a civil appeal. After a review of Galer’s “complaint,” which is in the clerk’s record, we agree.

      While the complaint is not free from contradiction, it does not appear to be a petition to invoke the trial court’s jurisdiction in a civil proceeding. There is not a “prayer for relief” in the traditional sense, and it only “ask[s] the court to caution the district attorney regarding retaliation and explain to such defendant what retaliation is.” The complaint is in the form of an affidavit, as a complaint in a criminal case is sometimes prepared. It attempts to allege facts necessary to establish the criminal violation of official misconduct and asserts that the District Court has jurisdiction under Section 4.05 of the Code of Criminal Procedure. The affidavit also contains language that is traditionally used in the prosecution of criminal offenses such as “the defendant on or about the 2^nd day of February, 2001, did then there, unlawfully, knowingly, and intentionally violate Texas law set out in this compliant against the peace and dignity of the state.” [All punctuation, spelling and emphasis as in the original.]

      Galer’s “complaint” did not invoke the District Court’s jurisdiction, either as a civil case—Galer has expressly repudiated that he was filing a civil case—or as a criminal case to consider the offense of official misconduct. The trial court should have dismissed the case for want of jurisdiction. Because the trial court never had jurisdiction of this cause he erred in dismissing the case as frivolous. Accordingly, we reverse the trial court’s judgment and dismiss the case for want of jurisdiction.

                                                                   PER CURIAM

Before Chief Justice Davis,

      Justice Vance, and

      Justice Gray

Reversed and dismissed for want of jurisdiction

Opinion delivered and filed December 12, 2001

Do not publish

[CV06]