Eric Drake v. Seana Willing ( 2015 )

August 13, 2015
CAUSE NO: 03-14-00665-CV
DRAKE § THIRD COURT OF APPEALS
§
Appellant §
VS §
§
KASTL ET AL § AUSTIN, TEXAS
Defendants
APPELLANT'S RESPONSE TO THE COURTS '
INQUIRY REGARDING JURISDICTION
\ "VHDCruiar
TO HONORABLE SAID JUSTICES:
COMES NOW, Appellant, Eric Drake and respectfully respond to the
Courts questioning jurisdiction in the above cause of action.
1. The above cause of action has been on the record for more than
a year, and the Court now questions its jurisdiction to hear the case.
Appellant wonder if a "judge" of this Court is attempting to assist the
Assistant Attorney General because Chapter 11 of the Texas Civ. Prac. &
Rem. Code Ann §11.101(c), answers that question. Restrepo v. Riggers, Ct.
Appeals, 2015 [8th Dist.]. Tex.Appeal Lexis 2101.
2. This is the reason why oral arguments are necessary, to answer
questions like this and other questions before any rulings are made for or
against the Appellant. If the Court is saying it don't need oral arguments and
asks questions about jurisdiction—the Court needs to have oral arguments.
1
3. Moreover, the Appellant filed a motion for nonsuit. It was
signed on August 14, 2014. Under the Tex. Civ. Prac. & Rem. Code Ann. §
11.101(c) (2002 & Supp. 2014), a pre-filing order is appealable under Tex.
Civ. Prac. & Rem. Code Ann. § 51.014 (2015).
4. Additionally, Appellant filed a mandamus in this Court and the
Court denied the mandamus. See Exhibit A. If the Court is saying there is no
adequate remedy by appeal, then mandamus was proper and the Appellant
believes that the Court's action of dismissal was on account of Drake's race:
black. If this Court dismisses the above appeal, which the Appellant has
filed his motions timely of recusal, Drake will file suit in federal court
against all justices in the Court in their official capacity and unofficial
capacity requesting damages. Appellant will also sue the spouses of each
justice or judge in State Court, because Texas is a state where spouses share
property and for other legal reasons. If the justice is "gay" and somehow
believes that God would allow such a marriage, even if the U.S. Supreme
Court deemed "gay marriages" legal, which it is an affront to the Almighty-
-Drake sues the gay partner. Appellant will even sue and serve the children
of the justices that have a social security number. Appellant will sue
grandmothers and grandfathers, any living person that the justices of the
Court may hide assess, land, money, or valuables under their names.
Factually, an appellate court has jurisdiction to issue a writ of mandamus
when necessary to enforce the jurisdiction of the appellate court § 22.221(a).
Appellant in his mandamus did show that the trial court abused its
discretion, however, the Appellant is black and state courts in Texas often
times treat nonwhite, especially nonwhite attorneys cruelly. Courts will grant
mandamus relief to correct a clear abuse of discretion or the violation of a
duty imposed by law when there is no other adequate remedy available by
appeal. In re Prudential Ins. Co. ofAmerica, 148 S.W.3d 124, 135-36 (Tex.
2004); (citing Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992)).
5. Appellant argues further, that when the nonsuit order was
signed in the trial court, it was an interlocutory order, and it merged into the
order declaring the Appellant a vexatious litigant and became a final
judgment for purposes of appeal. If other claims remain in the case, an order
determining the last claim is final. Crites v. Collins, Sup. Ct. Tx, 284 S.W.3d
839; 2009 Tex. Lexis 295; 52 Tex. Sup. J. 748.
6. Finally, appellate courts treat an order declaring a plaintiff as a
vexatious litigant as a permanent injunction. A permanent injunction that
disposes of all issues and parties is a final, appealable judgment. Kubala
Public Adjusters, Inc. v. Unauthorized Practice of Law Committee for
Supreme Court of Tex., 133 S.W.3d 790, 794 (Tex. App.-Texarkana 2004,
no pet.); Striedel v. Striedel, 15 S.W.3d 163, 164 (Tex. App.—Corpus Christi
2000, no pet.). Declaring a "plaintiff' as a vexatious litigant is a State
Injunction and unless the "plaintiff' takes timely action in the appeals court,
it becomes a permanent injunction. Since this Court does have the authority
and jurisdictions over orders such as injunctions, which are permanent, this
Court have jurisdiction over the above appeal.
7. Appellant filed a timely notice of appeal to the August 19, 2014
order declaring him a vexatious litigant. Thus, the Court has jurisdiction in
the above appeal. Again, if the Court has to ask simple questions as to
jurisdiction when the statute allows appeals of an order declaring a
"plaintiff' vexatious, the Appellant would again strongly recommend oral
arguments. In closing, several of the Appellant's pleadings has disappeared
that he filed with the district court in the above case, which when the
Appellant files suit against Appellee and her attorney, the Appellant will
also file suit against every person in the Travis County clerk's office, the
clerk of court herself, and others who may have destroyed or assisted in
destroying the Appellant pleadings—which is a felony crime.
Respectfully submitted,
Eric Drake
PO Box 833688
Richardson, Texas 75083
214-477-9288
CERTIFICATION OF SERVICE
I HEREBY certify that a true and correct copy of the foregoing
document has been delivered to the opposing attorneys of record via US
Mail or Hand Delivered on this the (<•*- day of August 2015.
Eric Drake
Exhibit A
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-14-00583-CV
In re Eric Drake
ORIGINAL PROCEEDING FROM TRAVIS COUNTY
MEMORANDUM OPINION
The petition for writ of mandamus and the emergency motion to stay are denied.
See Tex. R. App. P. 52.8(a).
Scott K. Field, Justice
Before Justice Puryear, Pemberton and Field
Filed: September 17,2014
Exhibit B
CIVIL PRACTICE AND REMEDIES CODE
TITLE 2. TRIAL, JUDGMENT, AND APPEAL
SUBTITLE A. GENERAL PROVISIONS
CHAPTER 11. VEXATIOUS LITIGANTS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 11.001. DEFINITIONS. In this chapter:
(1) "Defendant" means a person or governmental entity against whom a plaintiff commences or maintains or
seeks to commence or maintain a litigation.
(2) "Litigation" means a civil action commenced, maintained, or pending in any state or federal court.
(3) Repealed by Acts 2013, 83rd Leg., R.S., Ch. 1224, Sec. 10, eff. September 1, 2013.
(4) "Moving defendant" means a defendant who moves for an order under Section 11.051 determining that a
plaintiff is a vexatious litigant and requesting security.
(5) "Plaintiff" means an individual who commences or maintains a litigation pro se.
Added by Act3 1997, 75th Leg., ch. 806, Sec. 1, eff. Sept. 1, 1997.
Amended by:
Acts 2011, 82nd Leg., 1st C.S., Ch. 3 (H.B. 79), Sec. 9.01, eff. January 1, 2012.
Acts 2013, 83rd Leg., R.S., Ch. 1224 (S.B. 1630), Sec. 1, eff. September 1, 2013.
Acts 2013, 83rd Leg., R.S., Ch. 1224 (S.B. 1630), Sec. 10, eff. September 1, 2013.
Sec. 11.002. APPLICABILITY. (a) This chapter does not apply to an attorney licensed to practice law in this
state unless the attorney proceeds pro se.
(b) This chapter does not apply to a municipal court.
Added by Acts 2013, B3rd Leg., R.S., Ch. 1224 (S.B. 1630), Sec. 2, eff. September I, 2013.
SUBCHAPTER B. VEXATIOUS LITIGANT::
Sec. 11.051. MOTION FOR ORDER DETERMINING PLAINTIFF A VEXATIOUS LITIGANT AND RF.QUESTING SECURITY. In a
litigation in this state, the defendant may, on or before the 90th day after the date the defendant files the original
answer or makes a special appearance, move the court for an order:
(1) determining that the plaintiff is a vexatious litigant; and
(2) requiring the plaintiff to furnish security.
Added by Acts 1997, 75th Leg., ch. 806, Sec. 1, eff. Sept. 1, 1997.
Sec. 11.052. STAY OF PROCEEDINGS ON FILING OF MOTION. (a) On the filing of a motion under Section 11.051, the
litigation is stayed and the moving defendant is not required to plead:
(1) if the motion is denied, before the 10th day after the date it is denied; or
(2) if the motion is granted, before the 10th day after the date the moving defendant receives written
notice that the plaintiff has furnished the required security.
(b) On the filing of a motion under Section 11.051 on or after the date the trial starts, the litigation is
stayed for a period the court determines.
Added by Acts 1997, 75th Leg., ch. 806, Sec. 1, eff. Sept. 1, 1997.
Sec. 11.053. HEARING. (a) On receipt of a motion under Section 11.051, the court shall, after notice to all
parties, conduct a hearing to determine whether to grant the motion.
(b) The court may consider any evidence material to the ground of the motion, including:
(1) written or oral evidence; • and
(2) evidence presented by witnesses or by affidavit.
Added by Acts 1997, 75th Leg., ch. 806, Sec. 1, eff. Sept. 1, 1997.
Sec. 11.054. CRITERIA FOR FINDING PLAINTIFF A VEXATIOUS LITIGANT. 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 at least five litigations as a pro se litigant other
than in a small claims court that have been:
(A) finally determined adversely to the plaintiff;
(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, pro se, 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.
Added by Acts 1997, 75th Leg., ch. 806, Sec. 1, eff. Sept. 1, 1997.
Amended by:
Acts 2013, 83rd Leg., R.S., Ch. 1224 (S.B. 1630), Sec. 3, eff. September 1, 2013.
Sec. 11.055. SECURITY. (a) A court shall order the plaintiff to furnish security for the benefit of the moving
defendant if the court, after hearing the evidence on the motion, determines that the plaintiff is a vexatious
litigant.
(b) The court in its discretion shall determine the date by which the security must be furnished.
(c) The court shall provide that the security is an undertaking by the plaintiff to assure payment to the moving
defendant of the moving defendant's reasonable expenses incurred in or in connection with a litigation commenced,
caused to be commenced, maintained, or caused to be maintained by the plaintiff, including costs and attorney's fees.
Added by Acts 1997, 75th Leg., ch. 806, Sec. 1, eff. Sept. 1, 1997.
Sec. 11.056. DISMISSAL FOR FAILURE TO FURNISH SECURITY. The court shall dismiss a litigation as to a moving
defendant if a plaintiff ordered to furnish security does not furnish the security within the time set by the order.
Added by Acts 1997, 75th Leg., ch. 806, Sec. 1, eff. Sept. 1, 1997.
Sec. 11.057. DISMISSAL ON THE MERITS. If the litigation is dismissed on its merits, the moving defendant has
recourse to the security furnished by the plaintiff in an amount determined by the court.
Added by Acts 1997, 75th Leg., ch. 906, Sec. 1, eff. Sept. 1, 1997.
SUBCHAPTER C. PROHIBITING FILING OF NEW LITIGATION
Sec. 11.101. PREFILING ORDER; CONTEMPT. (a) A court may, on its own motion or the motion of any party, enter
an order prohibiting a person from filing, pro se, a new litigation in a court to which the order applies under this
section without permission of the appropriate local administrative judge described by Section 11.102(a) to file the
litigation if the court finds, after notice and hearing as provided by Subchapter B, that the person is a vexatious
litigant.
(b) A person who disobeys an order under Subsection (a) is subject to contempt of court.
(c) A litigant may appeal from a prefiling order entered under Subsection (a) designating the person a vexatious
litigant.
(d) A prefiling order entered under Subsection (a) by a justice or constitutional county court applies only to
the court that entered the order.
(e) A prefiling order entered under Subsection (a) by a district or statutory county court applies to each court
in this state.
Added by Acts 1997, 75th Leg., ch. 806, Sec. 1, eff. Sept. 1, 1997.
Amended by:
Acts 2011, 82nd Leg., 1st C.S., Ch. 3 (H.B. 79), Sec. 9.02, eff. January 1, 2012.
Acts 2013, 83rd Leg., R.S., Ch. 1224 (S.B. 1630), Sec. 4, eff. September 1, 2013.
Sec. 11.102. PERMISSION BY LOCAL ADMINISTRATIVE JUDGE. (a) A vexatious litigant subject to a prefiling order
under Section 11.101 is prohibited from filing, pro se, new litigation in a court to which the order applies without
seeking the permission of:
(1) the local administrative judge of the type of court in which the vexatious litigant intends to file,
except as provided by Subdivision (2); or
(2) the local administrative district judge of the county in which the vexatious litigant intends to file
if the litigant intends to file in a justice or constitutional county court.
(b) A vexatious litigant subject to a prefiling order under Section 11.101 who files a request seeking
permission to file a litigation shall provide a copy of the request to all defendants named in the proposed litigation.
(c) The appropriate local administrative judge described by Subsection (a) may make a determination on the
request with or without a hearing. If the judge determines that a hearing is necessary, the judge may require that
the-vexatious litigant filing a request under Subsection (b) provide notice of the hearing to all defendants named in
the proposed litigation.
(d) The appropriate local administrative judge described by Subsection (a) may grant permission to a vexatious
litigant subject to a prefiling order under Section 11.101 to file a litigation only if it appears to the judge that
the litigation:
(1) has merit; and
(2) has not been filed for the purposes of harassment or delay.
(e) The appropriate local administrative judge described by Subsection (a) may condition permission on the
furnishing of security for the benefit of the defendant as provided in Subchapter B.
(f) A decision of the appropriate local administrative judge described by Subsection (a) denying a litigant
permission to file a litigation under Subsection (d), or conditioning permission to file a litigation on the
furnishing of security under Subsection (e), is not grounds for appeal, except that the litigant may apply for a writ
of mandamus with the court of appeals not later than the 30th day after the date of the decision. The denial of a
writ of mandamus by the court of appeals is not grounds for appeal to the supreme court or court of criminal appeals.
Added by Acts 1997, 75th Leg., ch. 806, Sec. 1, eff. Sept. 1, 1997.
Amended by:
Acts 2011, 82nd Leg., 1st C.S., Ch. 3 (H.B. 79), Sec. 9.03, eff. January 1, 2012.
Acts 2013, 83rd Leg., R.S., Ch. 1224 (S.B. 1630), Sec. 5, eff. September 1, 2013.
Sec. 11.103. DUTIES OF CLERK. (a) Except as provided by Subsection (d), a clerk of a court may not file a
litigation, original proceeding, appeal, or other claim presented, pro se, by a vexatious litigant subject to a
prefiling order under Section 11.101 unless the litigant obtains an order from the appropriate local administrative
judge described by Section 11.102(a) permitting the filing.
(b) Repealed by Acts 2013, 83rd Leg., R.S., Ch. 1224, Sec. 10, eff. September 1, 2013.
(c) If the appropriate local administrative judge described by Section 11.102(a) issues an order permitting the
filing of the litigation, the litigation remains stayed and the defendant need not plead until the 10th day after the
date the defendant is served with a copy of the order.
(d) A clerk of a court of appeals may file an appeal from a prefiling order entered under Section 11.101
designating a person a vexatious litigant or a timely filed writ of mandamus under Section 11.102.
Added by Acts 1997, 75th Leg., ch. 806, Sec. 1, elf. Sept. 1, 1997.
Amended by:
Acts 2011, 82nd Leg., 1st C.S., Ch. 3 (H.B. 79), Sec. 9.04, eff. January 1, 2012.
Acts 2013, 83rd Leg., R.S., Ch. 1224 (S.B. 1630), Sec. 6, eff. September 1, 2013.
Acts 2013, 83rd Leg., R.S., Ch. 1224 (S.B. 1630), Sec. 7, eff. September I, 2013.
Acts 2013, 83rd Leg., R.S., Ch. 1224 (S.B. 1630), Sec. 10, eff. September 1, 2013.
Sec. 11.1035. MISTAKEN FILING. (a) If the clerk mistakenly files litigation presented, pro se, by a vexatious
litigant subject to a prefiling order under Section 11.101 without an order from the appropriate local administrative
judge described by Section 11.102(a), any party may file with the clerk and serve on the plaintiff and the other
parties to the litigation a notice stating that the plaintiff is a vexatious litigant required to obtain permission
under Section 11.102 to file litigation.
(b) Not later than the next business day after the date the clerk receives notice that a vexatious litigant
subject to a prefiling order under Section 11.101 has filed, pro se, litigation without obtaining an order from the
appropriate local administrative judge described by Section 11.102(a), the clerk shall notify the court that the
litigation was mistakenly filed. On receiving notice from the clerk, the court shall immediately stay the litigation
and shall dismiss the litigation unless the plaintiff, not later than the 10th day after the date the notice is filed,
obtains an order from the appropriate local administrative judge described by Section 11.102(a) permitting the filing
of the litigation.
(c) An order dismissing litigation that was mistakenly filed by a clerk may not be appealed.
Added by Acts 2013, 83rd Leg., R.S., Ch. 1224 (S.B. 1630), Sec. 8, eff. September 1, 2013.
Sec. 11.104. NOTICE TO OFFICE OF COURT ADMINISTRATION; DISSEMINATION OF LIST. (a) A clerk of a court shall
provide the Office of Court Administration of the Texas Judicial System a copy of any prefiling order issued under
Section 11.101 not later than the 30th day after the date the prefiling order is signed.
(b) The Office of Court Administration of the Texas Judicial System shall post on the agency's Internet website
a list of vexatious litigants subject to prefiling orders under Section 11.101. On request of a person designated a
vexatious litigant, the list shall indicate whether the person designated a vexatious litigant has filed an appeal of
that designation.
t (c) The Office of Court Administration of the Texas Judicial System may not remove the name of a vexatious
litigant subject to a prefiling order under Section 11.101 from the agency's Internet website unless the office
receives a written order from the court that entered the prefiling order or from an appellate court. An order of
removal affects only a prefiling order entered under Section 11.101 by the same court. A court of appeals decision
reversing a prefiling order entered under Section 11.101 affects only the validity of an order entered by the reversed
court.
Added by Acts 1997, 75th Leg., ch. 806, Sec. 1, eff. Sept. 1, 1997.
Amended by:
Acts 2011, 82nd Leg., 1st C.S., Ch. 3 (H.B. 79), Sec. 9.05, eff. January 1, 2012.
Acts 2013, 83rd Leg., R.S., Ch. 1224 (S.B. 1630), Sec. 9, eff. September 1, 2013.