Cabal v. State of Texas

* Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-50504
Summary Calendar
JESUS ALBERTO CABAL,
Plaintiff-Appellant,
versus
STATE OF TEXAS,
Defendant-Appellee.
________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
(SA-02-CV-255)
________________________________________________________________
October 10, 2002
Before BARKSDALE, DEMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Jesus Alberto Cabal appeals from the district court's
dismissal of his action seeking declaratory and injunctive relief
while challenging the constitutionality of TEX. PENAL CODE § 22.021.
Cabal alleged he was indicted under the statute for aggravated
sexual assault of a child. Because those Texas criminal
proceedings were still pending, the district court determined it
should abstain from hearing the case, pursuant to Younger v.

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2
Harris, 401 U.S. 37 (1971). Cabal contends this federal action
falls within the bad-faith exception to the Younger doctrine
because the state prosecution is part of a conspiracy against him
by federal and state officials.
The district court did not abuse its discretion in abstaining.
See Nationwide Mut. Ins. Co. v. Unauthorized Practice of Law Comm.,
283 F.3d 650, 652 (5th Cir. 2002)(decision to abstain is reviewed
for abuse of discretion, but whether elements of particular
abstention doctrine are met is reviewed de novo). Cabal has not
shown that the state prosecution was undertaken in bad faith or
with an intent to harass him. See Younger, 401 U.S. at 56; Perez
v. Ledesma, 401 U.S. 82, 85 (1971).
AFFIRMED

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