McElhinny v. Collier et al

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
DEMIAN MCELHINNY,
Plaintiff,
VS.
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CIVIL ACTION NO. 2:25-CV-00216
BRYAN COLLIER, et al.,
Defendants.
ORDER ADOPTING MEMORANDUM AND RECOMMENDATION
Plaintiff Demian McElhinny, proceeding pro se, brings this prisoner civil rights suit
complaining that he was denied due process in the review of his parole application. On
December 2, 2025, United States Magistrate Judge Julie K. Hampton issued her
Memorandum and Recommendation (M&R), recommending that the Court dismiss
Plaintiff’s complaint. D.E. 12. Plaintiff was provided proper notice of, and opportunity to
object to, the Magistrate Judge’s M&R. Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1).
Plaintiff filed his objections on December 22, 2025.1 D.E. 15.
1 Parties usually have fourteen days to file objections to an M&R. See Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1).
However, the M&R was served on Plaintiff via certified mail, so Plaintiff had an additional three days to object. See
Rangel v. ASLM II, No. EP-24-CV-00436-DCG, 2025 WL 2731841, at *2 (W.D. Tex. Sept. 25, 2025) (citing Fed. R.
Civ. P. 6(d)). Additionally, under the prison mailbox rule, a pro se prisoner’s objections to an M&R are “deemed filed
and served at the moment they are forwarded to prison officials for delivery to the district court.” See Thompson v.
Rasberry, 993 F.2d 513, 515 (5th Cir. 1993) (applying the prison mailbox rule to filing objections to an M&R). The
envelope containing Plaintiff’s objections was postmarked on December 18, 2025. The objections are thus deemed
timely filed within seventeen days from the day the M&R was mailed to Plaintiff. See Fed. R. Civ. P. 5(b)(2)(C); D.E.
13.
United States District Court
Southern District of Texas
ENTERED
April 27, 2026
Nathan Ochsner, Clerk
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STANDARD OF REVIEW
A district court must review de novo any portions of a magistrate judge’s proposed
findings and recommendations on dispositive matters to which the parties have filed
specific, written objections. Fed. R. Civ. P. 72(b). Objections must point out with sufficient
particularity any alleged error in the magistrate judge’s analysis; otherwise, they do not
constitute proper objections and will not be considered. Id.; see Battle v. U.S. Parole
Comm'n, 834 F.2d 419, 421 (5th Cir. 1987) (“[P]arties filing objections must specifically
identify those findings objected to.”); Edmonds v. Collins, 8 F.3d 290, 293 n.7 (5th Cir.
1993) (finding that right to de novo review not invoked when petitioner merely re-urges
arguments contained in original petition). After considering proper objections, the district
court may accept, reject, or modify, in whole or in part, those portions of the proposed
findings and recommendations. Fed. R. Civ. P. 72(b). As to any portion for which no
objection is filed, a district court reviews for clearly erroneous factual findings and
conclusions of law. United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989) (per
curiam).
PLAINTIFF’S OBJECTIONS
Plaintiff raises several objections related to his argument about Texas Code of
Criminal Procedure Article 37.07, § 4(a) and Article IV, § 11 of the Texas Constitution.
He objects that the Magistrate Judge did not address his argument that these two provisions
place exclusive authority and discretion over parole decisions in the hands of Texas trial
courts, not the Texas Board of Pardons and Paroles (TBPP). D.E. 15, pp. 4, 7-8. He also
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objects that the Magistrate Judge improperly rejected or failed to address his argument that
these provisions create a liberty interest in parole. Id. Specifically, he challenges several
cases that the M&R relies on for its conclusions. Id. at pp. 9-10.
Plaintiff also objects that the Magistrate Judge incorrectly characterized the claims
he has raised in this lawsuit. Id. at pp. 4-5. He argues that he is not challenging the
calculation of his sentence or eligibility for early release. Id. Plaintiff objects to the
Magistrate Judge’s recommendation that the dismissal of Plaintiff’s complaint count as a
“strike” for the purposes of 28 U.S.C. § 1915(g). Id. at pp. 11-12. And finally, he objects
to the recommendation to decline to exercise supplemental jurisdiction over Plaintiff’s state
law claims. Id. at 11.
DISCUSSION2
Most of Plaintiff’s arguments center around the impact he claims Article 37.07,
§ 4(a) and the Texas Constitution have on early release in Texas. Contrary to Plaintiff’s
contention, the M&R sufficiently addressed Article 37.07, § 4(a). In doing so, it explains
that Article 37.07, § 4(a) concerns a jury instruction, not a substantive parole law. See D.E.
12, pp. 15-16. The instruction alerts juries about the potential of early release and is careful
to emphasize that parole is not guaranteed or predictable. Id.
Versions of Article 37.07, § 4(a) have existed for decades. In Rose v. State, the
Texas Court of Criminal Appeals held that the instruction violated the Texas Constitution.
2 Plaintiff states in his objections that he is voluntarily dismissing from his complaint two defendants: Texas Board
of Pardons and Paroles Institutional Parole Officer Steve Quinones and McConnell Unit Warden Amonette. D.E. 15,
pp. 1-2. All claims against those defendants are therefore DISMISSED.
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752 S.W.2d 529, 535 (Tex. Crim. App. 1987), abrogated by, Karenev v. State, 281 S.W.3d
428 (Tex. Crim. App. 2009). In response to that holding, a constitutional amendment was
passed, Article IV, § 11, in 1989 to allow the Legislature to mandate an instruction like
Article 37.07, § 4(a). See Luquis v. State, 72 S.W.3d 355, 361 (Tex. Crim. App. 2002).
Subsequently, the Legislature reenacted Article 37.07, § 4(a). Id. Neither the constitutional
amendment nor Article 37.07, § 4(a) impacts substantive law on early release in Texas.
They were created for the purpose of providing juries with information about possible early
release, not to provide prisoners with any additional rights.
On its face, Article 37.07, § 4(a) contains no liberty-interest-creating language, and
neither does Article IV, § 11 of the Texas Constitution. Likewise, neither says anything at
all about trial courts having discretion to make parole decisions for those who are eligible.
On the contrary, Article IV, § 11 provides the TBPP with “sole discretion on whether to
grant parole.” Thoele v. Hinojosa, No. 15-24-00008-CV, 2025 WL 2348070, at *2 (Tex.
App. [15th Dist.] Aug. 14, 2025) (citing Tex. Const. art. IV, § 11). Accordingly, Plaintiff’s
objections claiming that the Magistrate Judge failed to properly address his arguments
regarding Article 37.07, § 4(a) and the Texas Constitution are OVERRULED.
In rejecting Plaintiff’s argument, the Magistrate Judge relied on several cases where
other courts have concluded that Texas prisoners do not have a liberty interest in parole or
in their good-time credits. D.E. 12, p. 16. Each of these cases discussed Article 37.07,
§ 4(a), and none found that it granted a liberty interest. Gordon v. Perry, No. CIV.A.
5:06CV242, 2007 WL 438253, at *5 (E.D. Tex. Feb. 6, 2007), aff'd, 259 F. App’x 651 (5th
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Cir. 2007) (“The instructions given to juries in criminal cases regarding good time plainly
do not create any sort of liberty interest for inmates to receive such good time.”); Parks v.
Perry, No. CIV.A. 5:06CV255, 2007 WL 438251, at *5 (E.D. Tex. Feb. 6, 2007), aff'd,
273 F. Appx. 366 (5th Cir. 2008) (“Parks has not shown that this instruction entitles him
to any relief; it simply alerts jurors to the possibility that awards of good time could shorten
the time which the defendant is actually incarcerated”); Pohl v. Livingston, No. CIV.A.
9:06CV4, 2006 WL 1050649, at *6 (E.D. Tex. Apr. 18, 2006) (referencing Article 37.07,
§ 4(a) and concluding that the plaintiff there “had no constitutional right to nor any liberty
interest in release on parole once he became eligible.”). Plaintiff’s objection to the
Magistrate Judge’s reliance on these cases is therefore OVERRULED.
Plaintiff’s only argument is that the existence of the two provisions discussed
creates a liberty interest, which is not the case. Therefore, Plaintiff’s arguments regarding
Article 37.07, § 4(a) and the Texas Constitution fail, and his objections that these
provisions conflict with or control over other laws are OVERRULED.
Beyond the arguments discussed above, Plaintiff does not challenge the Magistrate
Judge’s conclusion that Plaintiff must show a liberty interest in early release to state a claim
under 42 U.S.C. § 1983 and the Due Process Clause. The M&R explained that (1) under
the Due Process Clause and Texas law, only those eligible for mandatory supervision have
a liberty interest in early release from prison, and (2) Plaintiff is not eligible for mandatory
supervision. See D.E. 12, p. 13. This is a correct statement of law. See Gill v. Lumpkin, No.
4:21-CV-02747, 2024 WL 1185118, at *4 (S.D. Tex. Mar. 19, 2024). Accordingly,
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Plaintiff’s objection that the Magistrate Judge erroneously applied Greenholtz v. Inmates
of Nebraska Penal & Correctional Complex, 442 U.S. 1 (1979), is OVERRULED. See
442 U.S. at 7 (“There is no constitutional or inherent right of a convicted person to be
conditionally released before the expiration of a valid sentence.”).
Because Plaintiff has failed to show that he has a liberty interest in early release, the
M&R correctly concludes that Plaintiff has failed to state a claim. The Magistrate Judge
did not mischaracterize his claims. The objection is OVERRULED.
Because Plaintiff failed to state a claim upon which relief may be granted, this
dismissal counts as a strike for the purposes of 28 U.S.C. § 1915(g). Plaintiff’s objection
to that recommendation is thus OVERRULED.
And finally, the Magistrate Judge was correct in stating that generally a district court
should decline to exercise supplemental jurisdiction over state law claims once all federal
claims have been dismissed. D.E. 12, p. 17. Plaintiff’s objection to the recommendation to
decline supplemental jurisdiction is OVERRULED.
CONCLUSION
Having reviewed the findings of fact, conclusions of law, and recommendations set
forth in the Magistrate Judge’s M&R, as well as Plaintiff’s objections and all other relevant
documents in the record, and having made a de novo review of the portions of the
Magistrate Judge’s M&R to which objections were specifically directed, the Court
OVERRULES Plaintiff’s objections and ADOPTS as its own the conclusions of the
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Magistrate Judge (D.E. 12). Accordingly, the Court DISMISSES with prejudice
Plaintiff’s federal claims and DISMISSES without prejudice his state law claims.
The Court ORDERS that this dismissal counts as a “strike” for purposes of 28
U.S.C. § 1915(g) and INSTRUCTS the Clerk of Court to send notice of this dismissal to
the Manager of the Three Strikes List for the Southern District of Texas at
Three_Strikes@txs.uscourts.gov.
ORDERED on April 27, 2026.
_______________________________
NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE
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