robert-t-clifton-raquel-gutierrez-bryson-richard-d-jordan-and-michael ( 2010 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-389-CV
ROBERT T. CLIFTON, RAQUEL APPELLANTS
GUTIERREZ BRYSON, RICHARD D.
JORDAN, AND MICHAEL SUTTON
V.
JENNIFER WALTERS IN HER APPELLEE
OFFICIAL CAPACITY AS CITY
SECRETARY FOR THE CITY OF
DENTON, TEXAS
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FROM THE 16TH DISTRICT COURT OF DENTON COUNTY
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OPINION
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I. INTRODUCTION
In six issues, Appellants Robert T. Clifton, Raquel Gutierrez Bryson,
Richard D. Jordan, and Michael Sutton, pro se, appeal the trial court’s judgment
dismissing their claims against Appellee Jennifer Walters in her official capacity
as City Secretary for the City of Denton, Texas, and declaring Clifton a
vexatious litigant. We will affirm.
II. F ACTUAL AND P ROCEDURAL B ACKGROUND
On March 31, 2008, Clifton delivered a letter to Walters, Denton’s City
Secretary, expressing that Mark Burroughs, Perry McNeill, and Mary Jo “Pete”
Kamp were ineligible for election to the Denton City Council in any municipal
general election. The following day, Clifton filed his original petition, seeking
a declaratory judgment clarifying article 2.01(c) of the Denton City Charter and
“finding” that Burroughs, McNeill, and Kamp were ineligible for election to the
city council. 1 Clifton also sought to enjoin Walters from placing the names of
Burroughs, McNeill, and Kamp on the ballot for the May 10, 2008 election and
to enjoin them from “forever filing for any elective office” on the city council
because each had “been previously elected to three consecutive two-year terms
on the Denton City Council.”
On April 11, 2008, Clifton filed a first amended petition, which named
Gutierrez Bryson, Jordan, Sutton, and Justin Bell as additional plaintiffs but did
not amend any of the allegations for declaratory and injunctive relief pleaded in
1
 According to the original petition, article 2.01(c) states that “[a]ll
members of the council and the mayor shall be elected for two-year terms and
shall not be eligible for election to more than three (3) consecutive two year
terms . . . .”
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the original petition. The amended petition alleged that all of the plaintiffs have
standing because they are citizens of Texas, residents of Denton County and
Denton, voters, and taxpayers. It further alleged that Sutton and Bell have
standing for the additional reason that they were candidates in the May 10,
2008 election. 2
Walters filed a motion to dismiss Appellants’ claims for want of
jurisdiction, arguing in part that Clifton, Gutierrez Bryson, and Jordan do not
have standing as citizens to seek declaratory relief. Walters also sought rule of
civil procedure 13 sanctions against Clifton, and she moved pursuant to civil
practice and remedies code section 11.051 to declare Clifton a vexatious
litigant. 3 On April 21, 2008, the trial court denied Appellants’ request for
injunctive relief. Thereafter, Walters filed her first supplemental motion to
dismiss Appellants’ claims for want of jurisdiction, arguing that Sutton and Bell
lacked standing to seek a declaratory judgment because neither prevailed in his
respective race and neither contested the election results. Appellants filed an
“Objection Without Waiver and Motion to Strike Defendant’s First Supplemental
2
 Sutton was a candidate for Place 5 on the city council, and Bell was
a candidate for Mayor of Denton.
3
 Appellants did not file a response to Walters’s motion to dismiss.
3
Motion to Dismiss for Want of Jurisdiction and Original Answer; and, for
Sanctions” in response to Walters’s supplemental motion to dismiss. 4
On September 5, 2008, the trial court conducted a hearing on Walters’s
motions to dismiss for want of jurisdiction. 5 With the exception of Sutton’s and
Bell’s claims seeking a declaratory judgment clarifying article 2.01(c) of the
Denton City Charter, the trial court granted Walters’s motions to dismiss for
want of jurisdiction. The trial court subsequently granted Bell’s notice of
nonsuit and, after reconsidering its earlier ruling on Walters’s motions to
dismiss, dismissed Sutton’s claims as moot. After a hearing, the trial court
denied Walters’s request for sanctions but declared Clifton a vexatious litigant.
This appeal followed.
III. S TANDING
In their first issue, Appellants argue that the trial court erred by granting
Walters’s motions to dismiss for want of jurisdiction on the ground that they
each lack standing to sue Walters. Appellants argue that they have standing
because they are citizens of Texas, residents of Denton, registered voters, and
taxpayers and because “two of the plaintiffs were candidates for office for the
4
 Appellants sought sanctions on the ground that Walters’s
supplemental motion to dismiss was frivolous.
5
 The trial court allowed Appellants to introduce evidence at the hearing
in response to Walters’s motions.
4
May 10, 2008, general election for city council.” Appellants cite Williams v.
Lara, 52 S.W.3d 171 (Tex. 2001), in support of their taxpayer-standing
argument and argue that they have standing as taxpayers to sue “to stop and
prevent illegal spending by the City of Denton.”
Walters’s motions to dismiss for want of jurisdiction are pleas to the trial
court’s subject matter jurisdiction. A plea to the jurisdiction is a dilatory plea,
the purpose of which is to defeat a cause of action without regard to whether
the claims asserted have merit. Bland ISD v. Blue, 34 S.W.3d 547, 554 (Tex.
2000). Whether the trial court has subject matter jurisdiction is a question of
law that we review de novo. Tex. Dep’t of Parks & Wildlife v. Miranda, 133
S.W.3d 217, 226 (Tex. 2004). The plaintiff has the burden to plead facts
affirmatively showing that the trial court has jurisdiction. Tex. Ass’n of Bus.
v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). If a plea to the
jurisdiction challenges the existence of jurisdictional facts, as in this case, we
consider relevant evidence submitted by the parties when necessary to resolve
the jurisdictional issues raised. See Bland, 34 S.W.3d at 555; Cox v. Perry,
138 S.W.3d 515, 517 (Tex. App.—Fort Worth 2004, no pet.). We take as true
all evidence favorable to the nonmovant and indulge every reasonable inference
and resolve any doubts in the nonmovant’s favor. Miranda, 133 S.W.3d at
228. If the relevant evidence is undisputed or fails to raise a fact question on
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the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a
matter of law. Id.; Bland, 34 S.W.3d at 555.
Standing is a component of subject matter jurisdiction. Tex. Ass’n of
Bus., 852 S.W.2d at 445. If a party lacks standing to bring an action, the trial
court lacks subject matter jurisdiction to hear the case. Id. at 444–45; Town
of Fairview v. Lawler, 252 S.W.3d 853, 855 (Tex. App.—Dallas 2008, no pet.).
If a court lacks subject matter jurisdiction in a particular case, then it lacks
authority to decide that case. M.D. Anderson Cancer Ctr. v. Novak, 52 S.W.3d
704, 708 (Tex. 2001); Tex. Ass’n of Bus., 852 S.W.2d at 443 (reasoning that
subject matter jurisdiction is essential to the authority of a court to decide
case).
Generally, unless standing is conferred by statute, a plaintiff must
demonstrate that he possesses an interest in a conflict distinct from that of the
general public, such that the defendant’s actions have caused the plaintiff some
particular injury. Hunt v. Bass, 664 S.W.2d 323, 324 (Tex. 1984); SCI Tex.
Funeral Servs., Inc. v. Hijar, 214 S.W.3d 148, 153–54 (Tex. App.—El Paso
2007, pet. denied). Regarding a voter suing over an alleged ineligible
candidate, our case law has consistently held that a voter having no special
interest cannot bring a lawsuit seeking the removal of an ineligible candidate
from the ballot. See, e.g., Brimer v. Maxwell, 265 S.W.3d 926, 928 (Tex.
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App.—Dallas 2008, no pet.); In re Jones, 978 S.W.2d 648, 651 (Tex.
App.—Amarillo 1998, orig. proceeding [mand. denied]); see also Allen v. Fisher,
118 Tex. 38, 41, 9 S.W.2d 731, 732 (1928). “No Texas court has ever
recognized that a plaintiff’s status as a voter, without more, confers standing
to challenge the lawfulness of governmental acts.” Brown v. Todd, 53 S.W.3d
297, 302 (Tex. 2001); Yett v. Cook, 115 Tex. 205, 218, 281 S.W. 837, 841
(1926) (reasoning that in the absence of a statute authorizing the suit, “there
can be no doubt that in Texas an action relating to elections or other matters
of law enforcement, not involving questions of taxation or unlawful expenditure
of public funds, cannot be maintained by a relator or plaintiff whose interest is
only that of the public generally”).
In this case, as voters, citizens of Texas, and residents of Denton,
Appellants lacked standing to challenge Burroughs’s, McNeill’s, and Kamp’s
eligibility for election to the city council. See Brimer, 265 S.W.3d at 928;
Jones, 978 S.W.2d 648, 651; see also Allen, 9 S.W.2d at 732. As for their
argument that they each have standing because two of the plaintiffs (Sutton
and Bell) were candidates in the May 2008 election, Appellants set forth no
argument, analysis, or citation to relevant authorities to support this contention.
The single-sentence argument is therefore inadequately briefed and,
accordingly, waived. See Tex. R. App. P. 38.1(i) (requiring brief to contain a
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clear and concise argument for the contentions made with appropriate citations
to authorities); Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279,
284 (Tex. 1994) (discussing “long-standing rule” that issue may be waived due
to inadequate briefing). To the extent Appellants mean to argue by this single
sentence that Sutton—as opposed to the other Appellants—has standing to sue
because he—unlike the other Appellants—was a candidate in the May 10, 2008
election, this argument is also waived because Appellants provide no supporting
analysis or argument. See Tex. R. App. P. 38.1(i).
Regarding Appellants’ taxpayer-standing argument, through a judicially-
created exception to the particularized injury requirement, a taxpayer has
standing “to sue in equity to enjoin the illegal expenditure of public funds, even
without showing a distinct injury.” Bland, 34 S.W.3d at 556. Taxpayers in
Texas thus generally have standing to enjoin the illegal expenditure of public
funds and need not demonstrate a particularized injury. Williams, 52 S.W.3d
at 179. Implicit in this rule are two requirements: (1) that the plaintiff is a
taxpayer and (2) that public funds are expended on the allegedly illegal activity.
Id. Underpinning these limitations is the realization that governments cannot
operate if every citizen who concludes that a public official has abused his
discretion is granted the right to come into court and bring such official’s public
acts under judicial review. Id. at 180 (citing Bland, 34 S.W.3d at 555).
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Here, Walters introduced and the trial court admitted a copy of Ordinance
No. 2008-103, the ordinance canvassing the returns and declaring the results
of the May 10, 2008 election. It states in relevant part as follows:
The City Council finds and declares that the May 10, 2008 regular
municipal election was duly ordered for the purpose of electing two
council members to Places 5 and 6, and a Mayor to Place 7; that
proper notice of said election was duly given and election officials
appointed; that the election was duly held and the returns of the
election officials have been delivered to the Council, all in
accordance with the laws of the State of Texas and the Charter
and ordinances of the City of Denton. [Emphasis added.]
Appellants alleged in their amended petition that they seek declaratory relief to
stop “unconstitutional and illegal activities by” Walters. The alleged illegal
activity referred to is Walters’s “allowance and inclusion of ineligible candidates
on a general election ballot.” Aside from this allegation, which is based on
Appellants’ position that the City Charter prohibited Burroughs, McNeill, and
Kamp from seeking election to the city council in the May 10, 2008 election,
Appellants made no showing in response to Walters’s plea that they were suing
to enjoin the illegal expenditure of public funds. Appellants did not appeal the
trial court’s denial of their request for injunctive relief, and their remaining
claims seeking declaratory relief involve a dispute over the interpretation of part
of the Denton City Charter. Appellants’ opinion that Burroughs, McNeill, and
Kamp were ineligible for election does not mean that the election itself or
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Walters’s ministerial duty of reviewing candidate applications for inclusion on
the ballot were activities on which public funds were illegally expended; these
activities, which were “all [conducted] in accordance with the laws of the State
of Texas,” according to Ordinance No. 2008-103, would have taken place
regardless of the dispute over the provision in the City Charter—the lawsuit was
not filed until April 1, 2008, approximately forty days before the May 10, 2008
election, and the case was not set for trial until September 2008, months after
the May 10, 2008 election. See Tex. Elec. Code Ann. § 145.004 (Vernon
2003) (stating that a candidate’s entitlement to a place on the ballot or to a
certificate of election is not affected by a judicial determination that the
candidate is ineligible until a judgment declaring the candidate to be ineligible
becomes final), § 145.094(a) (Vernon Supp. 2009) (stating that the name of
a candidate shall be omitted from the ballot if the candidate is declared ineligible
before 5 p.m. of the second day before the beginning of early voting by
personal appearance, before 5 p.m. of the 53rd day before election day, or
before 5 p.m. of the 67th day before election day, depending on the
applicability of sections 145.092(a), 145.092(b), or 145.092(f)). Accordingly,
Appellants do not have standing as taxpayers. See Williams, 52 S.W.3d at
179–80.
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We hold that the trial court did not err by granting Walters’s motions to
dismiss for want of jurisdiction. We overrule Appellants’ first issue. Having
overruled Appellants’ first issue, we need not address their second, third,
fourth, and fifth issues, which are issues subsumed by the first issue. 6 See
Tex. R. App. P. 47.1.
IV. V EXATIOUS L ITIGANT
In their sixth issue, Appellants challenge the trial court’s order declaring
Clifton a vexatious litigant. 7 Clifton does not argue that the evidence is legally
and factually insufficient to support the trial court’s order. Instead, he asserts
numerous arguments complaining of alleged constitutional violations resulting
from the trial court’s order declaring him a vexatious litigant. Specifically, he
contends that the vexatious litigant statute is unconstitutional because it denies
him due process under the Fourteenth Amendment to the United States
6
 Appellants argue in these issues that “[t]his case is a suit for office;
not an election contest”; that “[t]he City Charter for the City of Denton limits
the number of consecutive elections an individual may be elected to the city
council”; that “[t]he City Secretary’s actions pertaining to the applications of
three individuals for a place on the May 10, 2008, general election ballot for
city council was an abuse of discretion”; and that “[t]he District Court’s action,
or inaction, in this case was a result of the court’s confusion as to whether or
not this case was a civil suit or an election contest.”
7
 The order declares only Clifton a vexatious litigant, not all of the
Appellants. We therefore construe this issue as a challenge by Clifton, not all
of the Appellants, to the order declaring him a vexatious litigant.
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Constitution, denies him equal protection, denies him access to court, does not
“further any compelling state interest,” violates the First and Eighth
Amendments to the United States Constitution, is a bill of attainder, is
“unconstitutionally overbroad,” and is an “invitation to ‘invidious
discrimination.’”
Chapter 11 of the civil practice and remedies code contains the
legislature’s plan for dealing with vexatious litigants—persons who abuse the
legal system by filing numerous, frivolous lawsuits. Tex. Civ. Prac. & Rem.
Code Ann. §§ 11.001–.104 (Vernon 2002). The statute provides in part that
on or before the ninetieth day after the date the defendant files an original
answer or makes a special appearance, the defendant may move for an order
declaring the plaintiff a vexatious litigant and requiring the plaintiff to furnish
security. Id. § 11.051. Section 11.054 provides as follows:
A court may find a plaintiff a vexatious litigant if the
defendant shows that there is not a reasonable probability that the
plaintiff will prevail in the litigation against the defendant and that:
(1) the plaintiff, in the seven-year period immediately
preceding the date the defendant makes the motion under Section
11.051, has commenced, prosecuted, or maintained in propria
persona at least five litigations other than in a small claims court
that have been:
(A) finally determined adversely to the plaintiff;
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(B) permitted to remain pending at least two years
without having been brought to trial or hearing; or
(C) determined by a trial or appellate court to be
frivolous or groundless under state or federal laws or
rules of procedure;
(2) after a litigation has been finally determined against the
plaintiff, the plaintiff repeatedly relitigates or attempts to relitigate,
in propria persona, either:
(A) the validity of the determination against the same
defendant as to whom the litigation was finally
determined; or
(B) the cause of action, claim, controversy, or any of
the issues of fact or law determined or concluded by
the final determination against the same defendant as
to whom the litigation was finally determined; or
(3) the plaintiff has previously been declared to be a
vexatious litigant by a state or federal court in an action or
proceeding based on the same or substantially similar facts,
transition, or occurrence.
Id. § 11.054.
Clifton’s arguments that chapter 11 denies him equal protection and
access to court are unpersuasive. See Leonard v. Abbott, 171 S.W.3d 451,
457–58 (Tex. App.—Austin 2005, pet. denied) (reasoning that chapter 11 did
not implicate appellant’s right to equal protection and did not violate the Texas
constitution’s open courts provision). We overrule this part of Clifton’s sixth
issue.
13
A bill of attainder is “a law that legislatively determines guilt and inflicts
punishment upon an identifiable individual without provision of the protections
of a judicial trial.” Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 468, 97
S. Ct. 2777, 2803 (1977). Chapter 11 does not involve punishment. Thus,
it is not a bill of attainder. See, e.g., Johnson v. Davis, 178 S.W.3d 230, 240
(Tex. App.—Houston [14th Dist.] 2005, pet. denied). We overrule this part of
Clifton’s sixth issue.
The Eighth Amendment to the United States Constitution forbids, among
other things, extreme sentences that are grossly disproportionate to the crime.
Ewing v. California, 538 U.S. 11, 23, 123 S. Ct. 1179, 1187 (2003). Chapter
11 does not involve punishment. We overrule this part of Clifton’s sixth issue.
The Fourteenth Amendment to the United States Constitution provides
that “[no] State shall . . . deprive any person of life, liberty, or property, without
due process of law.” U.S. Const. amend. XIV, § 1. This “require[s] that
deprivation of life, liberty or property by adjudication be preceded by notice and
opportunity for hearing appropriate to the nature of the case.” Logan v.
Zimmerman Brush Co., 455 U.S. 422, 428, 102 S. Ct. 1148, 1153 (1982);
Boddie v. Connecticut, 401 U.S. 371, 380, 91 S. Ct. 780, 787 (1971)
(concluding that “restriction on litigants’ use of established adjudicatory
procedures denies due process when such restriction is “the equivalent of
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denying them an opportunity to be heard upon their claimed right[s]”). A cause
of action is a species of property protected by the due process clause of the
Fourteenth Amendment. Logan, 455 U.S. at 428, 102 S. Ct. at 1154. Here,
Clifton complains of chapter 11’s requirement that a vexatious litigant obtain
permission by a local administrative judge to file litigation if a prefiling order has
previously been entered, see Tex. Civ. Prac. & Rem. Code Ann. § 11.102, but
the record does not show that he has been denied permission from a local
administrative judge to file a claim. Also, courts have described the
legislature’s intent in enacting chapter 11 as a balancing of individual Texans’
rights to access their court system against the public’s interest in protecting
defendants from individuals who abuse that system. Drake v. Andrews, 294
S.W.3d 370, 373 (Tex. App.—Dallas 2009, pet. filed). In light of this, Clifton
has not met his burden of demonstrating that obtaining permission to file
litigation is “the equivalent of denying [him] an opportunity to be heard,” thus
violating due process. See Boddie, 401 U.S. at 380, 91 S. Ct. at 787. We
overrule this part of Clifton’s sixth issue.
We overrule the remainder of Clifton’s arguments about the First
Amendment, “compelling state interest,” “unconstitutionally overbroad,” and
“invidious discrimination” because they are inadequately briefed. See Tex. R.
App. P. 38.1(i). We overrule the remainder of Clifton’s sixth issue.
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Va. C ONCLUSION
Having overruled Appellants’ first and sixth issues and having determined
that we need not reach Appellants’ second, third, fourth, and fifth issues, we
affirm the trial court’s judgment.
BILL MEIER
JUSTICE
PANEL: LIVINGSTON, MCCOY, and MEIER, JJ.
DELIVERED: January 14, 2010
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