JOYNER v. DeFRIEND (2008)

OPINION

Paul and Sandy Joyner, individually and on behalf of the estate of Brandon Joyner, appeal from an order granting Appellee Roy DeFriend's plea to the jurisdiction.   In one issue, the Joyners complain that the trial court erred in dismissing their suit because the pleading set forth a cause of action over which the trial court had jurisdiction.   We will affirm.

Background

Paul and Sandy Joyner filed a lawsuit against Mack and Diana Jones and Roy DeFriend.   The lawsuit alleged that the Joyners' son Brandon was killed during a “pasture party” held on land belonging to DeFriend's relatives.   The petition alleges that the Joneses and DeFriend, the Limestone County Attorney, acted together to conceal evidence following the death.   DeFriend filed a plea to jurisdiction on the grounds that (1) the Joyners failed to assert a justiciable controversy against him;  (2) the Joyners lacked standing, and (3) he was entitled to prosecutorial immunity.   The trial court granted the plea to the jurisdiction and dismissed the lawsuit for lack of subject matter jurisdiction.   The Joyners filed an appeal that we dismissed for want of jurisdiction because it was interlocutory.   The Joyners then filed a motion to sever the claims against DeFriend, and because of the severance, the order granting the plea to the jurisdiction is final.

Standard of Review

In their sole issue, the Joyners claim that the trial court erred when it granted DeFriend's plea to the jurisdiction.   They say the pleading set forth a cause of action over which the trial court had jurisdiction.   DeFriend argues that the trial court does not have jurisdiction over this claim because the Joyners have failed to assert a justiciable issue against him that the trial court can resolve.   Specifically, DeFriend argues that the Joyners have no cognizable right of action under Texas law based on alleged interference with a criminal investigation or prosecution because there is no cause of action for failure to prosecute.

 A plea to the jurisdiction is a dilatory plea by which a party contests the trial court's authority to determine the subject matter of the cause of action.  State v. Benavides, 772 S.W.2d 271, 273 (Tex.App.-Corpus Christi 1989, writ denied).   The plaintiff has the burden to allege facts affirmatively demonstrating that the trial court has subject-matter jurisdiction.  Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993).

 We review a ruling on a plea to the jurisdiction de novo.   Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998).   If the pleadings alone are determinative of the issue, then in our review we rely on them alone, construing them in the plaintiff's favor.  Tex. Ass'n of Business, 852 S.W.2d at 446;  Jansen v. Fitzpatrick, 14 S.W.3d 426, 431 (Tex.App.-Houston [14th Dist.] 2000, no pet.).   However, the trial court may hear evidence if necessary to determine the jurisdictional facts;  in that event, we also review the evidence.  Bland Indep. School Dist. v. Blue, 34 S.W.3d 547, 554-56 (Tex.2000);  Jansen, 14 S.W.3d at 431.

Analysis

 The Joyners alleged in their pleadings that DeFriend committed civil conspiracy and fraud.   The Joyners base these claims on a violation of Rule 4.01 of the Texas Disciplinary Rules of Professional Conduct.   For the reasons stated below, we conclude that the Joyners cannot assert a violation of Rule 4.01 as a basis for liability of their fraud and civil conspiracy claims.   The Texas Disciplinary Rules expressly state that a violation of the Code of Professional Responsibility does not give rise to a private cause of action.   See Tex. Disciplinary R. Prof'l Conduct 1.05 preamble ¶ 15;  Judwin Properties, Inc. v. Griggs & Harrison, P.C., 981 S.W.2d 868, 869-70 (Tex.App.-Houston [1st Dist.] 1998), pet. denied, 11 S.W.3d 188, 43 Tex. Sup.Ct. J. 289 (Tex.2000).   Thus, the State Bar Rules are not enforceable through the Joyners' fraud and civil conspiracy claims.   See Judwin, 981 S.W.2d at 870.

 The Joyners also assert that several penal code criminal charges should have been brought against DeFriend, including tampering with physical evidence and tampering with a witness.   However, Texas does not recognize private causes of action for penal code violations.   See Trevino v. Ortega, 969 S.W.2d 950, 953 (Tex.1998);  see also Spurlock v. Johnson, 94 S.W.3d 655, 658 (Tex.App.-San Antonio 2002, no pet.) (“the Texas Penal Code does not create private causes of action”);  Long v. Tanner, 170 S.W.3d 752, 755 (Tex.App.-Waco 2005, pet. denied) (same).

Because the Joyners cannot recover for violations of the penal code and the State Bar disciplinary rules, we hold as a matter of law that the Joyners have not alleged arguable claims over which the trial court had jurisdiction.   Therefore, dismissal was proper.   See Burke Ctr. for MHMR v. Carr, No. 09-04-00138-CV, 2004 WL 2955225 at *4, 2004 Tex.App. LEXIS 11499 at *11 (Tex.App.-Beaumont Dec. 22, 2004, pet. denied) (mem. op.) (per curiam).   We overrule the Joyner's sole issue and affirm the judgment of the trial court.

BILL VANCE, Justice.

Chief Justice GRAY dissents.   A separate opinion will not issue but he provides the following note.*