Roque Tercero Aranda v. State of Texas ( 2006 )

Opinion filed February 2, 2006

Opinion filed February 2, 2006

                                                                        In The

    Eleventh Court of Appeals

                                                                   __________

                                                          No. 11-05-00246-CV

                                                    __________

                              ROQUE TERCERO ARANDA, Appellant

                                                             V.

                                        STATE OF TEXAS, Appellee

                                         On Appeal from the 106th District Court

                                                         Gaines County, Texas

                                              Trial Court Cause No. 05-04-14972

                                            M E M O R A N D U M    O P I N I O N

On July 18, 2005, the trial court signed an order finding that Roque Tercero Aranda was a vexatious litigant pursuant to Tex. Civ. Prac. & Rem. Code Ann. ' 11.101 (Vernon 2002).  We affirm.

The record before this court consists of the clerk=s record.  A reporter=s record was neither requested nor filed.

In three issues, Aranda challenges the trial court=s finding that he is a vexatious litigant.  Specifically, Aranda argues that the trial court erred by conducting a hearing in his absence; that he did not receive notice of the amended petition for a finding that he was a vexatious litigant; that the trial court erred in considering two of his state suits against the district attorney that were pending at the time of this action; that the district attorney was not an appropriate person to move for a finding that he was a vexatious litigant; and that the district attorney was the plaintiff in this action and could not move for a vexatious-litigant finding under the statute.  Aranda appears to contend that litigation currently pending at the time of the trial court=s finding could not be considered by the trial court.

Section 11.101 provides:

(a) A court may, on its own motion or the motion of any party, enter an order prohibiting a person from filing, in propria persona, a new litigation in a court in this state if the court finds, after notice and hearing as provided by [Tex. Civ. Prac. & rem. Code Ann. '' 11.051-.057 (Vernon 2002)] that:

(1) the person is a vexatious litigant;  and

(2) the local administrative judge of the court in which the person intends to file the litigation has not granted permission to the person under Section 11.102 to file the litigation.

(b) A person who disobeys an order under Subsection (a) is subject to contempt of court.

Section 11.101 does not limit a motion for a vexatious-litigant finding to only defendants in lawsuits. Section 11.101 provides that any party or even the trial court itself may make such a motion.  Aranda=s challenges that an inappropriate party brought the action are overruled.

Tex. Civ. Prac. & Rem. Code Ann. ' 11.053 (Vernon 2002) provides that the trial court shall conduct a hearing after giving notice to all parties. Section 11.053 further provides that the trial court may consider any evidence -- written or oral -- that is material to the motion.  In addition, Section 11.053 provides that evidence may be presented by witnesses or by affidavit.

 Nothing in the record before this court supports Aranda=s allegations that the trial court erred in finding that he was a vexatious litigant.  Notice is not a contested issue on appeal:  Aranda states in his brief not only that he received a request to file a response to the motion but also that he timely complied with the request. The record before this court does not reflect that any Aamended pleadings@ were filed.  The statute allows the trial court to consider oral testimony as well as written evidence provided that the evidence is material to the motion.  The statute does not require the presence of any particular party.  Further, the statute does not prohibit the consideration of pending litigation.

Aranda has not established that the trial court erred in entering the July 18, 2005 order. All of Aranda=s arguments have been considered by this court. Each is overruled.

The order of the trial court is affirmed.

PER CURIAM

February 2, 2006

Panel consists of:  Wright, C.J., and

McCall, J., and Strange, J.