JAMES T. CAMPBELL, Justice.
Appellant has presented a motion for rehearing challenging the holdings in our original opinion concerning his asserted claims for declaratory relief, and his claims against Lubbock County and its commissioners court. With these comments, we will overrule the motion for rehearing.
Appellant's motion seeks rehearing of our determination that his claims against the judicial defendants were barred by the doctrine of absolute immunity. In our original opinion we noted that appellant had argued in a reply brief that judicial immunity would not bar his claims for declaratory relief. In response to that argument, we found that appellant's pleadings did not seek declaratory relief. On rehearing, appellant concedes the prayer in his amended petition did not seek declaratory relief, but points out the paragraphs asserting claims against each defendant did. Even assuming, arguendo, the amended petition was sufficient to give fair notice of claims for declaratory relief, and assuming, arguendo, that a claim for declaratory relief only might not be barred by absolute judicial immunity, that would not alter our conclusion the trial court did not abuse its discretion in dismissing the claims against district judges Cherry and Underwood, and magistrate judge Hazlewood, because they lack an arguable basis in law.
See Mireles v. Waco, 502 U.S. 9, 10 n. 1, 112 S.Ct. 286, 116 L.Ed.2d 9 (1991); Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 n. 10, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989).
Neither appellant's original petition nor his appellate brief identify the specific declaration he seeks. He appears to seek a declaration that each of the judges deprived him of his constitutional right to counsel, but does not indicate how such a declaration would settle any uncertainty or controversy. See Tex. Civ. Prac. Rem. Code Ann. § 37.008 (Vernon 1997) (authorizing denial of relief when declaration would not resolve controversy). In a reply brief on rehearing, and in response to appellees' contention his exclusive remedy is through a habeas corpus proceeding, appellant denies he is attempting to invalidate his conviction, but observes "should [he] decide to file a habeas [corpus] application, the [declarations] will assist the habeas court in deciding whether [he] was denied the effective assistance of counsel[.]"
As our original opinion noted, the record indicates appellant has filed several petitions in state court for habeas corpus seeking relief from his sexual assault conviction. None have been acted on favorably. The record also reflects that his habeas corpus petition filed in federal court was dismissed with prejudice.
The United States Supreme Court discussed the relationship between claims under section 1983 and habeas corpus in Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). The Court concluded:
[I]in order to recover damages for . . . harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus,
28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983.
Id. at 486-87. In
Young v. Dretke, 356 F.3d 616 (5th Cir. 2004), on which appellant relies, the Fifth Circuit held that an appointed counsel's failure to seek pre-indictment dismissal, on the same grounds appellant now asserts would have precluded his prosecution, established the denial of the right to counsel and entitlement to habeas corpus relief.
Id. at 629.
Application of the holding in Young to the standard established in Heck compels the conclusion that appellant's section 1983 claims are so related to his conviction that they may not be asserted before the granting of the writ of habeas corpus, or other post-conviction relief "invalidating" his conviction. See Heck, 512 U.S. at 487. Restated, he may not prosecute a claim under section 1983 to support a future habeas corpus petition, but must obtain relief by habeas corpus to assert a section 1983 claim. Therefore the trial court could have found his assertion of the 1983 claim against the judicial defendants without the prerequisite "invalidation" of his conviction has no arguable basis in law.
Appellant's motion for rehearing also challenges the statement in our original opinion that to any extent Lubbock County is implicated by his suit naming the members of its commissioner's court, the county is immune from suit as a subdivision of the state. He contends his petition properly can be read as asserting a section 1983 claim against Lubbock County, and that counties are not protected by state-law sovereign immunity from suits under section 1983. Appellant's asserted claims against the commissioners similarly are based on the alleged denial of appellant's right to counsel at what he contends is a critical stage of his prosecution. The trial court thus could have concluded those claims, like his claims against the judicial defendants, are not cognizable under section 1983 absent a grant of habeas corpus or similar relief to appellant. Heck, 512 U.S. at 486-87. Even were we to agree with his contentions on rehearing, we therefore could not agree the trial court's dismissal of appellant's claims reflects an abuse of discretion.
Appellant's argument on rehearing refers to the commissioners court and Lubbock County interchangeably. Lubbock County offers authority indicating the commissioners court is not an entity capable of being sued separate from the county and contends appellant failed to name the county as a defendant. See Darby v. Pasadena Police Dept., 939 F.2d 311, 313 (5th Cir. 1991). Appellant's petition named the members of the commissioners court, other than the county judge, in their individual and official capacities. A suit against a governmental official in his official capacity is a suit against the governmental entity. Will, 491 U.S. at 71; Ware v. Miller, 82 S.W.3d 795, 800 (Tex.App.-Amarillo 2002, pet. denied). We agree with appellant his suit asserted claims against the county.
Appellant cites, among other cases, Howlett v. Rose, 496 U.S. 356, 110 S.Ct. 2430, 110 L.Ed.2d 332 (1990). See also Leatherman v. Tarrant County Narcotics Intelligence Coordination Unit, 507 U.S. 163, 166, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993). Disposition of appellant's motion for rehearing does not require us to assess the application of the holdings of those cases to Lubbock County.
Appellant's motion for rehearing is overruled.