in Re Patricia Ann Potts and A.M.W. (A Child) ( 2013 )

Petition for Writ of Mandamus Denied and Opinion filed April 18, 2013.
In The
Fourteenth Court of Appeals
NO. 14-13-00177-CV
NO. 14-13-00179-CV
IN RE PATRICIA POTTS, Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
257th &334th District Court
Harris County, Texas
Trial Court Cause No. 1996-50567
OPINION
On March 7, 2013, relator Patricia Potts filed two petitions for writ of
mandamus in this court. See Tex. Gov’t Code Ann. §22.221; see also Tex. R. App.
P. 52. In the petitions, relator asks this court to compel the Honorable Ken Wise,
Local Administrative Judge of Harris County, to grant her permission to file
litigation and an application for protective order. We deny the petitions for writ of
mandamus.
BACKGROUND
The 11th District Court of Harris County issued an order on February 16,
2010, adjudicating relator as a vexatious litigant. On January 3, 2013, relator
requested permission from Judge Wise to file a motion for child support
enforcement. On January 5, 2013, relator requested permission from Judge Wise
to file an application for protective order against her mother. On February 5, 2013,
Judge Wise issued orders in both cases denying permission to file the motion for
child support enforcement and denying permission to file the application for
protective order. Relator now seeks relief from both court orders against Judge
Wise.
MANDAMUS STANDARD
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. of America, 148 S.W.3d 124, 135–
36 (Tex. 2004) (orig. proceeding). The relator generally must bring forward all
that is necessary to establish a claim for relief. See Tex. R. App. P. 52.7; Dallas
Morning News v. Fifth Court of Appeals, 842 S.W.2d 655, 658 (Tex. 1992). A
litigant wishing to appeal a decision of a local administrative judge denying a
litigant permission to file litigation under section 11.102 of the Texas Civil
Practice and Remedies Code may apply for a writ of mandamus with the court of
appeals. Tex. Civ. Prac. & Rem. Code Ann. § 11.102(c) (Vernon Supp. 2012).
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ANALYSIS
Chapter 11 of the Texas Civil Practice and Remedies Code addresses
vexatious litigants—persons who abuse the legal system by filing numerous,
frivolous lawsuits. Tex. Civ. Prac. & Rem. Code Ann. §§ 11.001–11.056. Section
11.101 of the statute, under which relator was declared a vexatious litigant,
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 of this state if the court finds, after notice and
hearing as provided by Subchapter B [sections 11.051–.057] 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.
Tex. Civ. Prac. & Rem. Code Ann. § 11.101(a).
The purpose of the statute is to make it possible for courts to control their
dockets rather than permitting courts to be burdened with repeated filings of
frivolous and malicious litigation by litigants without hope of success while, at the
same time, providing protections for litigants’ constitutional rights to open courts
when they have genuine claims that can survive the scrutiny of the administrative
judge and the posting of security to protect defendants. In re Potts, 357 S.W.3d
766, 768 (Tex. App.—Houston [14th Dist.] 2011, orig. proceeding). In that regard,
section 11.102 of the Texas Civil Practice and Remedies Code, entitled ―
“Permission by Local Administrative Judge,” provides:
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(a) A local administrative judge may grant permission to a person
found to be a vexatious litigant 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.
(b) The local administrative judge may condition permission on the
furnishing of security for the benefit of the defendant as provided in
Subchapter B.
Tex. Civ. Prac. & Rem. Code Ann. § 11.102 (Vernon Supp. 2012).
Due Process
In cause no. 14-13-00177-CV, relator contends she attempted to file a
“Verified Motion for Child Support Enforcement and Joinder of Claims and
Remedy.” This document is not part of the mandamus record. In denying her
permission to file the motion, Judge Wise noted that relator alleges that her former
husband has participated in a “conspiracy” to:
1) subject Ms. Potts and her daughter “to continuous free speech
retaliation, from 1998 to the present”;
2) “obstruct justice of all civil litigation” regarding Ms. Potts’s “report
of law violations committed by public employees of the state of
Texas”; and
3) deprive A.M.W. “of ordered [c]hild [s]upport ([h]ealth [i]nsurance)
and needed treatment for ongoing [c]hid [a]buse perpetrated upon her
from 1998 to the present.”
Relator further requested that her former husband be found in contempt of
the court’s orders and punished by incarceration. She also asks that her former
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husband be subjected to criminal prosecution for “his participation in unlawful
assault and conspiracy.” Judge Wise found that the only portion of Ms. Potts’s
petition that deals with her entitlement to allegedly past due child support is as
follows:
33. From 1998 to the present. [Mr. William] deceived [Ms. Potts and
her daughter] and failed to provide health insurance for minor
A.M.W. as ordered. [Mr. William] appeared to attempt to provide
health insurance benefits from a policy subscribed to by his current
wife. But POTTS was unable to submit any claim against policy,
because POTTS was prevented from having access to or information
regarding account or policy. [Mr. William] seemed to open and
cancel insurance policies for Minor A.M.W. because POTTS was
informed that policy was canceled when POTTS made attempts to
submit claims. And [Mr. William] failed to provide Insurance ID
Card, information, or documents necessary to submit healthcare
claim. And [Mr. William] refused to be contacted, or to provide his
contact information to [Ms. Potts and her daughter], for participation
of claim submittal or payment of un-reimbursed healthcare charges as
ordered.
34. [Mr. William] refused to pay 50% of [un-reimbursed health care
expenses in the amount of $433. When [Ms. Potts and her daughter]
mailed receipts and statements for un-reimbursed expenses to [Mr.
William], [he] sent them back marked “Unclaimed.” (SEE Exhibit B)
[Mr. William] refused to comply with order to provide his contact
information so that [Ms. Potts and her daughter] could discuss
healthcare claims and un-reimbursed expenses (sic).
35. [Mr. William] refused to pay $350 in full on the first of each
month as ordered. Instead, [Mr. William] made partial payments
throughout the month.
Judge Wise determined that relator’s pleadings did comply with the
requirements of the Texas Family Code, but “(1) nothing in the submitted
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pleadings and documents . . . demonstrates that Ms. Potts’ claims have merit; and
(2) that the litigation has been filed for purposes of harassment.”
Relator argues that Judge Wise violated the Fourteenth Amendment to the
United States Constitution by depriving her and her daughter of enforcing their
rights to child support without due process of law. Relator contends she has been
denied due process because “(1) the Fourteenth Amendment prohibits the making
or enforcement of any law which deprives me and my daughter of our child
support rights, plus (2) my minor daughter is not subject to any pre-filing order.”
This court and three sister courts of appeals have concluded that the
vexatious litigant statute does not violate the vexatious litigant’s constitutional due
process rights. See Potts, 357 S.W.3d at 769; Johnson v. Sloan, 320 S.W.3d 388,
389–90 (Tex. App.—El Paso 2010, pet. denied); Clifton v. Walters, 308 S.W.3d
94, 101–02 (Tex. App.—Fort Worth 2010, pet. denied); In re Johnson, No. 07-07-
0245-CV, 2008 WL 2681314, at *2 (Tex. App.—Amarillo Jul. 9, 2008, orig.
proceeding) (mem. op.). Relator has not shown that the restrictions in the
vexatious litigant statute are unreasonable or arbitrary when balanced against the
purpose and basis of the statute. The statute does not authorize courts to act
arbitrarily, but permits them to restrict a plaintiff’s access to the courts only after
first making specific findings that the plaintiff is a vexatious litigant based on
factors that are closely tied to the likelihood that the litigation is frivolous. See
Potts, 357 S.W.3d at 769; Tex. Civ. Prac. & Rem. Code Ann. § 11.054.
Although relator was found to be a vexatious litigant, chapter 11 and the trial
court’s order do not categorically bar her from prosecuting a lawsuit, but require
her to seek permission from the local administrative judge before filing. See Tex.
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Civ. Prac. & Rem. Code Ann. § 11.102. Therefore, relator has not been deprived
of her access to appellate courts or her ability to seek a meaningful appeal.
In addition to asserting her due process argument, relator challenges Judge
Wise’s findings that her claims do not have merit and that the litigation has been
filed for purposes of harassment. However, relator did not include the motion
seeking child support, nor did she file a record showing she is not receiving child
support. Based on the record before us, we cannot conclude Judge Wise’s failure
to grant relator permission to file the motion for enforcement of child support was
an abuse of discretion. See In re Goad, No. 04-11-00894-CV, 2012 WL 138609
(Tex. App.—San Antonio Jan. 18, 2012, orig. proceeding) (mem. op.).
Equal Protection
In cause no. 14-13-00179-CV, relator requested permission from Judge Wise
to file a motion for protective orders against relator’s mother, Helen Leonard.
Relator did not include the request for permission or the motion for protective
orders in the mandamus record. Judge Wise’s order reflects that relator claimed
Leonard:
1) “has engaged in conduct that constitutes family violence as defined
in Section 71.004 of the Texas Family Code”;
2) “committed acts that were intended ... to result in physical harm,
bodily injury, assault, or sexual assault against [Ms. Potts and her
daughter] OR (sic) that reasonably placed [Ms. Potts and her
daughter] in fear of imminent physical harm, bodily injury, assault, or
sexual assault”;
3) “for the past two decades” has participated in a “conspiracy to
subject [Ms. Potts and her daughter] to ongoing [m]ental [a]ssault,
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[c]hild [a]buse, and [a]ssault of [s]leep [d]eprivation for the purpose
of defrauding (sic)” Ms. Potts of her “inheritance rights”(sic);
4) “published false defamation” that Ms. Potts was and continues to
be a) mentally ill and/or mentally incompetent, b) diagnosed with
schizophrenia; and c) threatened harm to herself and others;
5) conspired to “subject [Ms. Potts] to [m]ental [a]nguish (sic)”;
6) participated in a conspiracy to injure Ms. Potts and her daughter
“with [f]orced [s]leep [d]eprivation for the purpose of causing [Ms.
Potts] to become MENTALLY ILL” (sic); and
7) subjected Ms. Potts and her daughter to “daily and ongoing
harassment and noise disturbance” whenever she “attempted to have
uninterrupted [s]leep” (sic).
Judge Wise noted that the Texas Family Code requires that an application
for a temporary ex parte protective order must contain a detailed description of the
facts and circumstances concerning the alleged family violence and the need for
the immediate protective order. Tex. Fam. Code Ann. § 82.009. Judge Wise
determined that relator’s pleadings and attached documents were “comprised of
broad, disjointed, and often rambling allegations.” By not providing the requisite
detailed description of the facts and circumstances concerning alleged family
violence in her pleadings, relator “has not shown the need for the issuance of a
protective order against Ms. Leonard.” Judge Wise further found “1) nothing in
the submitted pleadings and documents . . . demonstrates that Ms. Potts’ claims
have merit; and 2) that the litigation has been filed for purposes of harassment.”
Relator argues that Judge Wise deprived her and her daughter of equal
protection by denying permission to file the motion for protective order. We
construe relator’s challenge as a facial challenge to the vexatious litigant statute.
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We conclude that, on its face, the vexatious litigant statute does not violate the
constitutional right to equal protection. See Leonard v. Abbott, 171 S.W.3d 451,
457–58 (Tex. App.—Austin 2005, pet. denied).
In addition to her equal protection claim, relator appears to challenge Judge
Wise’s findings that her claims do not have merit and that the litigation has been
filed for purposes of harassment. However, relator did not include the motion she
sought to file in the mandamus record. Therefore, we cannot review Judge Wise’s
finding that she did not meet the requirements of the Texas Family Code or his
findings that the pleadings do not demonstrate a meritorious claim. See Tex. Fam.
Code § 82.009; Tex. R. App. P. 52.8(a).
Based on the record before us, we cannot conclude Judge Wise’s failure to
grant relator permission to file either the motion to enforce or the motion for
protective order was an abuse of discretion. See Walker v. Packer, 827 S.W.2d
833, 839–40 (Tex. 1992) (orig. proceeding); In re Goad, No. 04-11-00894-CV,
2012 WL 138609 at *1.
Minor Child
Relator further claims the trial court abused its discretion because her minor
child is not subject to a pre-filing order and cannot be deprived of her rights.
Relator has not presented a record showing what she attempted to file on behalf of
her daughter. Further, she has not shown a right to file motions on behalf of her
minor child. On the record before us, we cannot conclude Judge Wise abused his
discretion in denying relator permission to file motions on behalf of her child. See
Tex. R. App P. 52.8(a).
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Accordingly, the petition for writ of mandamus is denied
/s/ Jeffrey V. Brown
Justice
Panel consists of Justices Frost, Brown, and Busby.
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