Ralph O. Douglas

Opinion issued August _____, 2010

Concurring and Dissenting opinion issued August 31, 2010

In The

Court of Appeals

For The

First District of Texas

    NO. 01-08-00542-CV

In RE Ralph o. Douglas, Appellant

On Appeal from the 127th District Court

Harris County, Texas

Trial Court Cause No. 2006-39052

Concurring and Dissenting Opinion

            I concur in the majority’s opinion as to the trial court’s dismissal of Mr. Douglas’ petition under Chapter 14, but find the majority’s holding on the vexatious litigant issue to be incorrect.  I would hold that the trial court abused its discretion when it declared Douglas a vexatious litigant because the governing statute, a rather explicit, specific, itemized, and particularized statute, does not authorize the trial court to raise the issue sua sponte.[1]  Accordingly, I would reverse the judgment of the trial court with respect to the vexatious litigant finding and related pre-filing order.  I would also overrule Douglas’ judicial misconduct claim, but on a different basis.

Vexatious Litigant Statute

In three subchapters, Chapter 11 of the Texas Civil Practice and Remedies Code sets forth the statutory scheme for dealing with vexatious litigants:

· “General Provisions” (Subchapter A, § 11.001);

· “Vexatious Litigants” (Subchapter B, §§ 11.051–.057); and

· “Prohibiting Filing of New Litigation” (Subchapter C, §§ 11.101–.104).

Subchapter B sets forth the exclusive provisions authorizing a trial court to declare a plaintiff a vexatious litigant, pursuant to which a defendant may move the court for an order declaring the plaintiff a vexatious litigant within ninety days of filing its original answer in the case.[2]  The court must then stay the proceeding, notice the parties, and hold an evidentiary hearing on the matter.[3]  After the hearing, if the court finds that “the defendant [has] show[n]…” certain expressly required facts, the court may then declare the plaintiff a vexatious litigant (and if so declared, must then order the plaintiff to furnish security for the benefit of the moving defendant, non-compliance with which, requires dismissal of the underlying litigation).[4]

Having declared the plaintiff a vexatious litigant pursuant to Subchapter B, the court may then, either on the motion of a party or acting sua sponte, enter a pre-filing order prohibiting the vexatious litigant from filing any new litigation without permission from the local administrative judge pursuant to Subchapter C.  Section 11.101 of Subchapter C states in its entirety:

§ 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, in propria persona, a new litigation in a court in this state if the court finds, after notice and hearing as provided by Subchapter B, 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.

Tex. Civ. Prac. & Rem. Code Ann. § 11.101 (Vernon 2002) (emphasis added).

Read in its entirety (rather than considering section 11.101 in isolation), Chapter 11 yields an understanding that it authorizes the trial court to issue a pre-filing order only after its vexatious litigant finding pursuant to Subchapter B.[5]  The only notice and hearing provisions in Subchapter B are set forth in section 11.053, and section 11.053 is contingent upon the defendant’s timely request for a vexatious litigant order pursuant to section 11.051.  Thus, under the plain language of section 11.051, the defendant’s request within ninety days of filing the original answer is a statutory prerequisite for any vexatious litigant declaration.[6] 

In the present case, Douglas’ petition for bill of review was dismissed prior to service of citation, thus the named defendants were never provided notice to enter an appearance in this suit, much less file a section 11.051 motion with the court.  Accordingly, I would hold that the trial court abused its discretion when it declared Douglas a vexatious litigant because the trial court did not comply with the mandatory statutory scheme.  For this reason, I would reverse the judgment of the trial court with respect to the vexatious litigant finding and related pre-filing order.  

The majority portrays my reading of the vexatious litigant statute as violative of statutory construction doctrines because, they purport, it fails to consider section 11.101, is “directly contrary” to that section’s plain language, and renders the language of that section “superfluous.”  Majority opinion, pp. 18-20.  On the contrary, that section’s authorization to issue a pre-filing order presupposes a vexatious litigant declaration by the court in that it merely authorizes the trial court to issue a pre-filing order once it has declared a litigant vexatious pursuant to Subchapter B.  It does not—as the majority and trial court contend—authorize the trial court to make the initial vexatious litigant declaration. Viewing Chapter 11 in its entirety, it is apparent that the trial court’s authority to make such a declaration is governed by Subchapter B, not Subchapter C.  My reading, which pertains exclusively to the trial court’s authority to declare a litigant vexatious under Subchapter B, does not conflict with the trial court’s authority to issue a pre-filing order under Subchapter C’s section 11.101, much less render section 11.101 superfluous or ineffective.[7]

Indeed, the majority’s reading could render other portions of Chapter 11, e.g., section 11.051, superfluous.  Such an interpretation is also logically inconsistent with the law of at least three of our sister courts.[8]  Section 11.051 requires a defendant to move the court for an order declaring the plaintiff a vexatious litigant within ninety days of filing its original answer.  Why would the Legislature impose a time limit on a defendant’s ability to request a vexatious litigant order, if the court were able issue such a declaration, on its own initiative, at any time?  Given that a court of appeals must affirm a judgment on any legal basis supported by the record, how could a trial court have erred or abused its discretion when it declared a party a vexatious litigant simply because the issue was raised outside section 11.051’s ninety-day period, if the court was able to raise the issue sua sponte at any time?[9]  If the trial court may, as the majority contends, declare a litigant vexatious sua sponte at any time, then section 11.051’s ninety-day deadline is effectively superfluous.

In addition to these published opinions, both the Corpus Christi and Fourteenth Courts of Appeals have reached similar results in Scott v. Texas Department of Criminal Justice[10] and Akinwamide v. Transportation Insurance Company.[11]  The majority’s criticism of Scott and Akinwamide on the grounds that neither opinion “mentioned or even considered section 11.101” is not just inapposite but ironic as those opinions addressed the trial court’s authority to declare a litigant vexatious under Subchapter B not the trial court’s authority to issue a pre-filing order under Subchapter C (§§ 11.101    –.104).  Majority opinion, p. 17.  Thus, Scott’s or Akinwamide’s silence as to section 11.101 was dictated by its inapplicability.

The majority also asserts that the Akinwamide court’s discussion of a trial court’s “inherent power” to prevent vexatious litigation is dictum because the court did not need to reach that question in order to resolve the issues presented to it.  In Akinwamide, the trial court declared the appellant/plaintiff a vexatious litigant after the appellees/defendants filed a section 11.051 motion.[12]  On appeal, the appellant argued that the trial court abused its discretion when it declared him a vexatious litigant because the appellees’ motion was untimely.[13]  Citing to University of Texas v. Morris[14] and Birdo v. Holbrook,[15] the appellees countered that even if the motion did not comply with the statutory time limit, the court’s declaration was nonetheless proper in light of the court’s “inherent power” to protect judicial resources and prevent vexatious litigation.[16]  Noting that both Morris and Birdo pre-dated the vexatious litigant statute, and that although both cases “stand for the proposition the courts have the inherent power to apply certain restrictions on pro se plaintiffs in order to protect judicial resources, but they do not stand for the proposition the courts can inherently declare a plaintiff a vexatious litigant,” the court of appeals rejected the appellees’ “inherent power” argument and held that the trial court abused its discretion when it declared appellant a vexatious litigant because defendants’ motion was untimely.[17] 

The Akinwamide court’s discussion of a trial court’s “inherent power” to prevent vexatious litigation in that case can hardly be described as dictum.  The court’s rejection of the appellees’ “inherent power” argument was a necessary step in light of the fact that a court of appeals must affirm the judgment of a trial court if it can be upheld on any legal theory that finds support in the evidence.  See In re W.E.R., 669 S.W.2d 716, 717 (Tex. 1984).  If the appellees’ “inherent power” argument had been correct, the court of appeals would have had no choice but to affirm the trial court’s order declaring the appellant a vexatious litigant.

According to the majority, my interpretation not only denies courts their “inherent right to protect judicial resources from waste in frivolous and vexatious litigation,” but also results in an unreasonable construction of the statute that goes against the Legislature’s intent.  In support of this claim, the majority cites to Morris[18] and Birdo,[19] two pre-Chapter 11 cases that held that courts have equitable power to prevent vexatious litigation.  As previously discussed, this argument has already been rejected by one of our sister courts in Akinwamide.[20]  As the Akinwamide court correctly pointed out, both Morris and Birdo pre-date the Legislature’s enactment of Chapter 11.   

According to the majority, Chapter 11 was intended to “make it possible for courts to control their dockets . . . while, at the same time, providing protections for litigants’ constitutional rights to an open court when they have genuine claims that can survive the scrutiny of the administrative judge and the posting of security to protect defendants.”[21]  Majority opinion, p. 20-21.  On the contrary, there is no indication that the Legislature enacted Chapter 11 in order to “make it possible for courts to control their dockets.”  The vexatious litigant statute was enacted in order to give the courts an additional tool to use as a deterrent to the filing of vexatious litigation; it was not intended to give the courts the type of unbridled authority advocated by the majority.[22]  Had the Legislature wanted to expand upon or incorporate the “inherent powers” principle previously espoused by both Morris and Birdo, it certainly could have done so.  Instead the Legislature chose to enact a scheme in which a party’s request for a vexatious litigant declaration is a statutory prerequisite for any such declaration.[23]  Further, such a request triggers the trial court’s obligation to order the plaintiff to furnish security for the benefit of the moving defendant—assuming the court finds the plaintiff to be a vexatious litigant after notice and hearing.[24]

Although I share the majority’s frustration with the potential for judicial inefficiencies attendant to inmate litigation that may be considered frivolous, the statute speaks for itself and it is the Legislature’s function to amend it, not this Court’s to gloss over it or write around it.

Judicial Misconduct

Although I agree with the majority’s disposition of Douglas’ judicial misconduct claim, I disagree with the­­­­ reasoning.

In his final issue on appeal, Douglas contends that the trial court judge was biased against him, thus depriving him of his constitutional right to have his suit decided by a fair and impartial judge.  Specifically, Douglas contends that the trial court’s repeated use of the terms “retaliate” and “harassing the defendants” to describe his conduct in its May 23, 2008 order, coupled with the fact that the trial court directed the clerk to send a copy of the order to the Texas Board of Pardons and Paroles, evidenced the trial court judge’s intent to “poison and influence the board’s decision” regarding his parole eligibility.

To reverse a judgment on the ground of judicial misconduct, we must find judicial impropriety coupled with probable prejudice to the complaining party.[25]  We examine the entire record to determine whether these factors are present.[26]

Although the inflammatory language of the trial court’s order and the extra-judicial action of sending a copy to the Board of Pardons and Paroles were unwarranted, we need not reach the issue of whether the court’s statements or actions constituted judicial impropriety because the record does not reflect that Douglas was prejudiced by the alleged bias of the trial court.  The trial court’s dismissal of Douglas’ petition pursuant to Chapter 14 was proper, and, to the extent that Douglas may have been harmed by copy of the order being sent to the Board of Pardons and Paroles, this would not, in and of itself, warrant reversal of the court’s otherwise proper judgment.[27]  Accordingly, I would overrule Douglas’ final issue on this basis.

                                                                   Jim Sharp

                                                                   Justice

 Panel consists of Justices Keyes, Sharp, and Massengale.

Justice Sharp, concurring and dissenting.

---

[1]           See Tex. Civ. Prac. & Rem. Code Ann. §§ 11.001–.056 (Vernon 2002).

[2]           Id. at § 11.051.

[3]           See id. at §§ 11.052 (staying proceeding) and 11.053 (notice and hearing).

[4]           Id. at §§ 11.054-.056.

[5]           Id. at § 11.101 (stating court may issue pre-filing order “if the court finds, after notice and hearing as provided in Subchapter B [sections 11.051-.057], that . . . the person is a vexatious litigant”) (emphasis added); see generally id. at § 11.054 (“Criteria for Finding Plaintiff a Vexatious Litigant”).

[6]           See Dishner v. Huitt-Zollars, Inc., 162 S.W.3d 370, 377 (Tex. App.—Dallas 2005, no pet.) (holding trial court abused its discretion in declaring appellant vexatious litigant because section 11.051 motion filed outside ninety-day time period); In re Marriage of Grossnickle, 115 S.W.3d 238, 252 (Tex. App.—Texarkana 2003, no pet.) (stating that “the ‘vexatious litigant’ statute applies only when [a section 11.051 motion is] filed within ninety days after date on which a defendant files his or her original answer”); Spiller v. Spiller, 21 S.W.3d 451, 454 (Tex. App.—San Antonio 2000, no pet.) (holding section 11.051 motion filed outside ninety-day period was untimely); cf. Scott v. TDCJ, No. 13-07-00718-CV, 2008 WL 4938265, at *3, 5 (Tex. App.—Corpus Christi Nov. 20, 2008, no pet.) (holding trial court abused its discretion by declaring inmate vexatious litigant because statute did not authorize court to raise issue sua sponte).  The majority regards Dishner, Spiller, and Grossnickle as inapplicable because they are factually distinguishable from the instant case since the defendants in these cases all appeared and sought vexatious litigant declarations. As discussed later, the underlying reasoning and analysis in these cases is nonetheless pertinent to this appeal. See infra pp. 6–7 & n9.

[7]           See Tex. Gov’t Code Ann. § 311.021(2) (Vernon 2005) (requiring courts construe statutes based on presumption that Legislature intended entire statute to be effective); City of Marshall v. City of Uncertain, 206 S.W.3d 97, 105 (Tex. 2006) (citing City of San Antonio v. City of Boerne, 111 S.W.3d 22, 29 (Tex. 2003)) (stating courts should avoid construing statutes in manner that renders any part of statute meaningless or superfluous). 

[8]           See Dishner, 162 S.W.3d at 377; Spiller, 21 S.W.3d at 454; Grossnickle, 115 S.W.3d at 252.

[9]           Compare Majority opinion, p. 33 (affirming trial court order declaring appellant vexatious litigant, despite lack of timely section 11.051 motion) with Dishner, 162 S.W.3d at 377 (reversing trial court order declaring appellant vexatious litigant because court failed to comply with Chapter 11’s statutory scheme), Spiller, 21 S.W.3d at 454 (same), and Grossnickle, 115 S.W.3d at 252 (holding trial court did not err in failing to find party vexatious litigant because defendant did not file section 11.051 motion within ninety-day period).

[10]             No. 13-07-00718-CV, 2008 WL 4938265, at *3, 5 (Tex. App.—Corpus Christi Nov. 20, 2008, no pet.) (mem. op.) (holding trial court abused its discretion by declaring inmate vexatious litigant because statute did not authorize court to raise issue sua sponte).

[11]          No. 14-06-01054-CV, 2008 WL 660303, at *4 (Tex. App.—Houston [14th Dist.] Mar. 11, 2008, pet. denied) (mem. op.) (holding trial court abused its discretion by declaring plaintiff vexatious litigant because defendants’ section 11.051 motion was untimely and court did not have “inherent power” to issue such a declaration).

[12]          Id. at *1. 

[13]          Id. at *3. 

[14]          162 Tex. 60, 344 S.W.2d 426, 428 (1961).

[15]          775 S.W.2d 411, 412–13 (Tex. App.—Fort Worth 1989, writ denied).

[16]          2008 WL 660303, at *4. 

[17]          Id.

[18]          162 Tex. at 62, 344 S.W.2d at 428.

[19]          775 S.W.2d at 412–13.

[20]          2008 WL 660303, at *4.

[21]          Ironically, the majority’s interpretation would nonetheless, effectively strip away these very constitutional protections by allowing trial courts to declare a litigant vexatious without regard to the statutory scheme enacted by the Legislature.

[22]          See generally House Comm. On Civil Practices, Bill Analysis, Tex. H.B. 3087, 75th Leg., R.S. (1997) (stating purpose of Chapter 11 to “curb vexatious litigation by requiring plaintiffs found by a court to be ‘vexatious’ to post security for costs before proceeding with a lawsuit”).

[23]          Tex. Civ. Prac. & Rem. Code Ann. § 11.05l; see Dishner, 162 S.W.3d at 377; Spiller, 21 S.W.3d at 454.

[24]          See Tex. Civ. Prac. & Rem. Code Ann. § 11.05l.

[25]          Silcott v. Oglesby, 721 S.W.2d 290, 293 (Tex. 1986); Erskine v. Baker, 22 S.W.3d 537, 539 (Tex. App.—El Paso 2000, pet. denied); Metzger v. Sebek, 892 S.W.2d 20, 39 (Tex. App.—Houston [1st Dist.] 1994, writ denied).

[26]          Metzger, 892 S.W.2d at 39.

[27]          See Erskine, 22 S.W.3d at 540 (stating reversal of judgment should not be ordered unless there is showing of impropriety which resulted in rendition of improper judgment).