OPINION BY President Judge LEADBETTER.
Robert M. McCord, in his official capacity as Treasurer of the Commonwealth of Pennsylvania (Treasurer), filed a Petition for Review in the Nature of an Action for Declaratory and Injunctive Relief against the Pennsylvania Gaming Control Board (Board) in this court's original jurisdiction. The Board filed Preliminary Objections to the Petition for Review. For reasons set forth in this opinion, we overrule the Board's Preliminary Objections.
On May 11, 2010, the Treasurer filed his petition for review seeking to have this court declare, as a matter of law, that the Treasurer, or his designee, has the statutory right to fully participate in all public and executive sessions of the Board as a non-voting member of the Board. Further, the Treasurer asks this court to enjoin the Board from taking any action to prohibit, impede, discourage or otherwise prevent the Treasurer or his designee from fully participating in public and executive sessions of the Board.
On July 6, 2010, the Board filed preliminary objections to the petition for review in the nature of a demurrer and on the basis of lack of standing and ripeness, and seeks this court's exercise of discretion to decline jurisdiction under the Declaratory Judgments Act. The preliminary objections are currently before the court.
42 Pa.C.S. §§ 7531- 7541.
Preliminary objections to an original jurisdiction petition for review are permissible under Pa. R.A.P. 1516(b). Our review of matters before this court on preliminary objections is limited to the pleadings. Pennsylvania State Lodge, Fraternal Order of Police v. Dep't of Conservation Natural Res., 909 A.2d 413 (Pa.Cmwlth. 2006), aff'd, 592 Pa. 304, 924A.2d 1203 (2007).
[This court is] required to accept as true the well-pled averments set forth in the [petition for review], and all inferences reasonably deducible therefrom. Moreover, the court need not accept as true conclusions of law, unwarranted inferences from facts, argumentative allegations, or expressions of opinion. In order to sustain preliminary objections, it must appear with certainty that the law will not permit recovery, and, where any doubt exists as to whether the preliminary objections should be sustained, the doubt must be resolved in favor of overruling the preliminary objections.
Id. at 415-16 (citations omitted).
While the Sunshine Act generally states that meetings of Commonwealth agencies are to be open to the public, Section 707 of the Sunshine Act, 65 Pa.C.S.§ 707, provides that, as an exception to the general rule, agencies may hold executive sessions which are not open to the public. Executive sessions give agency board members opportunity to privately discuss confidential matters such as personnel actions, business and legal strategy or negotiations, and consultations with legal advisors, and the like. See 65 Pa.C.S. §§ 703, 707(a), 708(a). The Board argues that the Treasurer is not a member of the Board who may participate in an executive session, and that the Treasurer is not authorized to act on the purposes for which an executive session may be held under Section 708 of the Sunshine Act. 65 Pa.C.S. § 708. The Board further contends that the participation of the Treasurer or his designee in executive sessions would taint the Board with the appearance of corruption, erode public confidence in the over-sight of gaming, disrupt the intended structure of the Board, threaten the quasi-judicial function of the Board, and may result in the divulgence of confidential information, as well as the waiver of the Board's attorney-client privilege.
65 Pa.C.S. §§ 701- 716.
Notwithstanding the Board's concerns, Section 1201(e) of the Pennsylvania Race Horse Development and Gaming Act (Gaming Act), 4 Pa.C.S. § 1201(e), clearly provides that the Treasurer or his designee shall serve on the Board as a non-voting ex officio member of the Board. The Board notes, however, that Section 1103 of the Gaming Act, 4 Pa.C.S. § 1103, defines a "member" of the Board as being only the voting members designated under Section 1201(b) of the Gaming Act. With that, the Board argues that neither the Treasurer, nor his designee, is entitled to fully participate in executive sessions because they are not voting members of the Board. The Sunshine Act, however, does not limit executive sessions to "voting members." Further, Section 708 of the Sunshine Act limits the function of an executive session such that no official action takes place behind closed doors. Thus, the legal right to vote as a member of the Board is of no consequence with respect to participation in an executive session.
The voting membership of the Board consists of: (1) Three members appointed by the Governor, (2) One member appointed by each of the following: (i) The President pro tempore of the Senate, (ii) The Minority Leader of the Senate, (iii) The Speaker of the House of Representatives, and (iv) The Minority Leader of the House of Representatives. 4 Pa.C.S. § 1201(b).
Moreover, concerning the appearance of impropriety, the court notes that the Treasurer is a Commonwealth official acting on behalf of the Commonwealth, not on the behalf of gaming companies, their principal investors or other interested parties. We do not see how the involvement of the Treasurer pursuant to statute creates any appearance of impropriety.
"For preliminary objections to be sustained, it must appear with certainty that the law will permit no recovery, and any doubt must be resolved in favor of the non-moving party by refusing to sustain the objections." Smith v. Pa. Emps. Benefit Trust Fund, 894 A.2d 874, 881 (Pa. Cmwlth. 2006). Here, despite the Board's concerns or reservations, the General Assembly has spoken with respect to the Treasurer's serving as an ex officio member of the Board. It cannot be said with any certainty that under the statutory scheme at issue, the Treasurer is not a member of the Board who may participate in an executive session. In fact, it appears that the opposite may be true. Accordingly, preliminary objections based on the Board's statutory interpretation cannot be sustained.
The Board also objects to the portion of the Treasurer's petition which requests that this court ensure his ability to fully participate in the Board's public meetings. The Treasurer has pled that, among other things, his designees have been discouraged from fully participating in public meetings, and that a member of the Board asserted that the Treasurer or his designees are limited in their participation to the scope of their official agency duties.
In the extensive briefing of this case, as well as at oral argument, this aspect of the case has received very little attention, and there is a need for more factual development before this court can make a judgment on this claim. In light of the disposition of the rest of the case, and because it is not certain that the law will permit no recovery on this aspect of the claim, we overrule the objections to this aspect of the petition.
Next, the Board argues that the Treasurer does not have standing to bring the petition for review. We disagree.
The core concept of standing is that `a party who is not negatively affected by the matter he seeks to challenge is not aggrieved, and thus, has no right to obtain judicial resolution of his challenge.' A litigant is aggrieved when he can show a substantial, direct, and immediate interest in the outcome of the litigation. A litigant possesses a substantial interest if there is a discernible adverse effect to an interest other than that of the general citizenry. It is direct if there is harm to that interest. It is immediate if it is not a remote consequence of a judgment.
In re Milton Hershey Sch., 590 Pa. 35, 42, 911 A.2d 1258, 1261-62 (2006) (citations omitted).
Simply on the basis that the Board seeks to preclude the Treasurer from participating in deliberative sessions, the Treasurer has a substantial, direct and immediate interest in the outcome of the litigation. If this court does not grant the relief sought by the Treasurer, it appears that he will not be permitted to participate in deliberative sessions. Accordingly, we hold that the Treasurer does have standing to bring the petition for review in this matter.
The Board further argues that the Treasurer is barred by the doctrine of ripeness from bringing the petition for review. We disagree.
If differences between the parties concerned, as to their legal rights, have reached the state of antagonistic claims, which are being actively pressed on one side and opposed on the other, an actual controversy appears; where, however, the claims of the several parties in interest, while not having reached the active stage, are nevertheless present, and indicative of threatened litigation in the immediate future, which seems unavoidable, the ripening seeds of a controversy appear.
Mid-Centre Cnty. Auth. v. Boggs Twp., 34 Pa.Cmwlth. 494,
384 A.2d 1008, 1011 (1978) [quoting
Lakeland Joint Sch. Dist. Auth. v. Scott Twp. Sch. Dist, 414 Pa. 451, 456-57, 200 A.2d 748, 751 (1964)]. Here, there is clearly a present controversy over whether the Treasurer or his designee may attend and participate in executive sessions. Accordingly, this controversy is ripe for review.
Next, the Board argues that this court should exercise its discretion under the Declaratory Judgments Act to decline jurisdiction over the petition for review. We disagree.
Under the Declaratory Judgments Act: "The court may refuse to render or enter a declaratory judgment or decree where such judgment or decree, if rendered or entered, would not terminate the uncertainty or controversy giving rise to the proceeding. . . ." 42 Pa.C.S. § 7537. As the Treasurer has standing to bring the petition for review, and the matter is ripe, this court concludes that a decree rendered by this court would terminate the uncertainty and controversy giving rise to this proceeding. Accordingly, we will not decline jurisdiction.
Finally, the Board argues that this court should refuse to enter a declaratory judgment where the relief in question would not resolve how the Treasurer may "fully participate" in such meetings. We disagree. If this court confirms that the Treasurer has a statutory right to fully participate in all public and executive sessions of the Board as a non-voting member, and enjoins the chairman and members of the Board from taking any action to prohibit, impede, discourage or otherwise prevent the Treasurer or his designee from participating, the Treasurer will be able to exercise the statutory right by participating as fully as any other member of the Board, with the exception of voting. Clearly then, granting the relief requested would, in fact, resolve the present controversy.
For all of the above reasons, the Board's preliminary objections are overruled.
Judge BUTLER did not participate in the decision in this case.
ORDER
AND NOW, this 10th day of December, 2010, the preliminary objections filed by the Pennsylvania Gaming Control Board in the above-captioned matter are hereby OVERRULED. The Respondent shall file an answer to the petition for review within thirty days of this order.
quent appeals in the 2004 suit are reported, but Douglas has acknowledged that the 2004 suit was dismissed pursuant to Chapter 14 of the "Civil Practice and Remedies Code."
See TEX. CIV. PRAC. REM. CODE ANN. § 14.003 (Vernon 2002) (permitting dismissal of an inmate's claim if the court finds the claim is frivolous or malicious). An appeal in the 2004 suit is pending at the First Court of Appeals under case number 01-07-00358-CV.
In 2007, Douglas filed this new suit against ATC seeking mortgage documents on the same properties named in the 2004 suit. On March 13, 2008, the trial court issued a "Notice of Intent to Dismiss — No Answer Filed." . . . Douglas filed a motion to retain on April 2, 2008. On April 30, 2008, the trial court signed an order dismissing the case for want of prosecution, stating Douglas failed to comply with the court's dismissal notice. Douglas then filed a motion to reinstate on June 2, 2008, which was timely mailed on May 30, 2008.
See TEX.R. CIV. P. 5, 165a(3). The motion was overruled by operation of law.
See TEX.R. CIV. P. 165a(3). Douglas then brought this appeal.
Douglas v. Amer. Title Co., No. 14-08-00676-CV,
2009 WL 3851674, at *1-2 (Tex.App.-Houston [14th Dist.] Nov. 19, 2009, no pet.) (memo. op.). The court considered and overruled Douglas's three issues complaining of the trial court's failure to conduct a dismissal hearing, to consider his motion to retain, or to conduct a hearing on his motion to reinstate, and it affirmed the trial court's order dismissing Douglas's 2007 suit against American Title as frivolous or malicious.
Id. at *5.
Meanwhile, Douglas had filed in this Court, in appeal number 01-07-0358-CV — alluded to by the Fourteenth Court of Appeals in its November 19, 2009 opinion in Douglas v. American Title Co. as "pending" — an appeal from the judgment entered on remand of his 2004 suit against ATC. This Court's per curiam dismissal of Douglas's earlier 2004 suit against ATC for Douglas's failure to file the record issued on the same day as the Fourteenth Court of Appeals' dismissal of his 2007 suit against ATC — November 19, 2009 — but not before Douglas had accumulated a docket sheet eleven pages long in his appeal of that 2004 case on remand in this Court alone, consisting of 84 recorded "events," including filings by Douglas, filing deadlines, notices sent to Douglas by the Court, and correspondence from Douglas to the Court.
The trial courts order in this case satisfies all the statutory requirements for the courts finding Douglas to be a vexatious litigant on its own motion. Thus, we hold that the trial court did not abuse its discretion in finding him to be a vexatious litigant. See Douglas, 196 S.W.3d at 879. Douglas has not contested the pre-filing order pursuant to section 11.101. We overrule Douglas's first and second issues, and we affirm that part of the trial courts judgment finding Douglas to be a vexatious litigant and requiring him to comply with statutory requirements in filing future cases as provided in Chapter 11 of the Civil Practice and Remedies Code.
B. Dismissal Under Chapter 14, Texas Civil Practice Remedies Code
In his third issue, Douglas contends the trial court abused its discretion when it dismissed his petition as frivolous, i.e., as having no arguable basis in law, because, he contends, he properly stated a claim for bill of review.
Chapter 14 of the Texas Civil Practice and Remedies Code applies to an inmate's in propria persona claim in a suit in which an affidavit or unsworn declaration of inability to pay costs is filed by the inmate. See TEX. CIV. PRAC. REM. CODE ANN. § 14.002. Among several grounds on which a court may dismiss the suit are findings that the suit is frivolous or malicious, i.e., the claims raised in the suit have no arguable basis in law or fact. See id. § 14.003(a)(2), (b)(2). Specifically, section 14.003 provides, in part:
(a) A court may dismiss a claim, either before or after service of process, if the court finds that:
(1) the allegation of poverty in the affidavit or unsworn declaration is false;
(2) the claim is frivolous or malicious; or
(3) the inmate filed an affidavit or unsworn declaration required by this chapter that the inmate knew was false.
(b) In determining whether a claim is frivolous or malicious, the court may consider whether:
(1) the claim's realistic chance of ultimate success is slight;
(2) the claim has no arguable basis in law or in fact;
(3) it is clear that the party cannot prove facts in support of the claim; or
(4) the claim is substantially similar to a previous claim filed by the inmate because the claim arises from the same operative facts.
Id. § 14.003(a), (b).
Section 14.003 further provides that, in determining whether subsection 14.003(a) applies, the court "may" hold a hearing and, if it dismisses a claim brought by a person housed in a TDCJ facility, it "may notify [TDCJ] of the dismissal." Id. § 14.003(c)-(d). The trial court's failure to conduct a hearing on whether an inmate's suit is frivolous is not an abuse of discretion when the inmate has failed to demonstrate that there is evidence he would have presented had a hearing been held. Hall, 39 S.W.3d at 724. When the trial court does not hold a hearing, the issue before the appellate court is whether the trial court properly determined that the lawsuit had no arguable basis in law. Presiado v. Sheffield, 230 S.W.3d 272, 274 (Tex.App.-Beaumont 2007, no pet.).
In addition, section 14.004 of the Code provides:
(a) An inmate who files an affidavit or unsworn declaration of inability to pay costs shall file a separate affidavit or declaration:
(1) identifying each suit . . . previously brought by the person and in which the person was not represented by an attorney, without regard to whether the person was an inmate at the time the suit was brought; and
(2) describing each suit that was previously brought by:
(A) stating the operative facts for which relief was sought;
(B) listing the case name, cause number, and the court in which the suit was brought;
(C) identifying each party named in the suit; and
(D) stating the result of the suit, including whether the suit was dismissed as frivolous or malicious under Section 14.001 or Section 14.003 or otherwise.
(b) If the affidavit or unsworn declaration filed under this section states that a previous suit was dismissed as frivolous or malicious, the affidavit or unsworn declaration must state the date of the final order affirming the dismissal.
(c) The affidavit or unsworn declaration must be accompanied by the certified copy of the trust account statement required by Section 14.006(f).
TEX. CIV. PRAC. REM. CODE ANN. § 14.004.
Finally, section 14.006(f), referenced in section 14.004(c), provides:
(f) The inmate shall file a certified copy of the inmate's trust account statement with the court. The statement must reflect the balance of the account at the time the claim is filed and activity in the account during the six months preceding the date on which the claim is filed.
The court may request the department or jail to furnish the information required under this subsection.
Id. § 14.006(f). Section 14.006 also provides that a court may order an inmate who has filed a claim to pay court fees, court costs, and other costs, and it prescribes a method for assuring payment.
Id. § 14.006(a)-(e). The court may dismiss the claim if the inmate fails to pay fees and costs assessed under the section.
Id., § 14.006(h).
The standard of review of the dismissal of a lawsuit brought by an inmate who had filed an affidavit or declaration of inability to pay costs is abuse of discretion. Thomas v. Knight, 52 S.W.3d 292, 294 (Tex.App.-Corpus Christi 2001, pet. denied). To establish an abuse of discretion, the inmate must show that the trial court's action was arbitrary or unreasonable in light of all the circumstances in the case. Id. While dismissals of inmate litigation under chapter 14 are generally reviewed for an abuse of discretion, the question whether there was an arguable basis in law for an inmate's claims is reviewed de novo. Scott v. Gallagher, 209 S.W.3d 262, 266 (Tex.App.-Houston [1st Dist.] 2006, no pet.); Sawyer v. Tex. Dep't of Crim. Justice, 983 S.W.2d 310, 311 (Tex.App.-Houston [1st Dist.] 1998, pet. denied).
When an inmate does not comply with the affidavit requirements in filing an affidavit or unsworn declaration of inability to pay costs, the trial court is entitled to assume the suit is substantially similar to one previously filed by the inmate and, therefore, frivolous. Thomas, 52 S.W.3d at 295; Hall, 39 S.W.3d at 724; Bell v. TDCJ-Inst. Div., 962 S.W.2d 156, 158 (Tex.App.-Houston [14th Dist.] 1998, pet. denied). This is so even when the inmate contends that defects in his affidavit could be cured with copies of his previous lawsuits, filed as exhibits. Clark v. Unit, 23 S.W.3d 420, 422 (Tex.App.-Houston [1st Dist.] 2000, pet. denied). The description of previous suits must be contained a separate affidavit or declaration, and the court is not required to sift through numerous documents filed by the inmate to find the information specified by the statute. Id. An inmate's unsworn allegation in his petition for declaratory relief that he has not filed any previous lawsuit concerning the subject matter of the cause of action and has not previously filed any other civil actions in any court does not qualify as either an affidavit or an unsworn declaration satisfying the procedural requirements for civil inmate litigation, and thus, in such a case, the suit may be dismissed as frivolous. Jackson v. TDCJ-Inst. Div., 28 S.W.3d 811, 814 (Tex.App.-Corpus Christi 2000, pet. denied).
An inmate's failure to file the affidavit or unsworn declaration relating to previous filings is mandatory in inmate litigation, and the failure to file the affidavit is grounds alone to dismiss the suit. Amir-Sharif v. Mason, 243 S.W.3d 854, 858 (Tex.App.-Dallas 2008, no pet.). The dismissal of a state prisoner's suit merely for failure to comply with the conditions set out in section 14.004 is not, however, a dismissal on the merits and is, therefore, generally a dismissal without prejudice. Thomas, 52 S.W.3d at 295.
To determine whether the trial court properly decided that there was no arguable basis in law for an inmate's suit filed with an affidavit or declaration of inability to pay costs, the court of appeals must examine the types of relief and causes of action the inmate pleaded in his petition to determine whether, as a matter of law, the petition stated a cause of action that would authorize relief. Spurlock v. Schroedter, 88 S.W.3d 733, 736 (Tex.App.-Corpus Christi 2002, no pet.); Jackson, 28 S.W.3d at 813. In reviewing a dismissal of a suit filed by an inmate for inability to pay costs, the appellate court is bound to take as true the allegations in the inmate's original petition. Brewer v. Simental, 268 S.W.3d 763, 770 (Tex.App.-Waco 2008, no pet.); Jackson, 28 S.W.3d at 813. The court should consider whether the suit was dismissed with prejudice, and, if it was, it should determine whether the prisoner's error could be remedied through more specific pleading; if it could, dismissal with prejudice was improper. Thomas, 52 S.W.3d at 296.
Here, Douglas filed a petition for a bill of review in the trial court and an unsworn declaration of inability to pay. There is no indication in the record that Douglas filed the affidavit required by section 14.004 of the Civil Practice and Remedies Code identifying and describing the suits he had filed in propria persona or the certified copy of his trust account statement required by sections 14.004(c) and 14.006(f) of the Code. See TEX. CIV. PRAC. REM. CODE ANN. §§ 14.004(c), 14.006(f). Therefore, the suit was, for that reason alone, subject to dismissal. See Amir-Sharif, 243 S.W.3d at 858; Thomas, 52 S.W.3d at 295; Hall, 39 S.W.3d at 724; Clark, 23 S.W.3d at 422; Bell, 962 S.W.2d at 158.
In considering the merits of Douglas's contentions, nevertheless, we reach the same conclusion as the trial court, namely that his suit was properly dismissed as frivolous and malicious.
In this case, Douglas has filed a bill of review seeking further review of the consolidated cases he filed in 2001 against the Joneses arising out of the matters that were the subject of his criminal conviction for theft and the bankruptcy court's subsequent finding that he defrauded the Joneses. A bill of review is an independent, equitable proceeding to set aside a judgment that, while not void on the face of the record, is no longer appealable or subject to a motion for new trial. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). Generally, a petitioner seeking to set aside a prior judgment by bill of review must plead and prove (1) a meritorious claim or defense, (2) that was not asserted due to fraud, accident, or wrongful act of an opponent or official mistake, (3) unmixed with any fault or negligence by the petitioner. See id. at 752. However, when the bill-of-review petitioner participates in the underlying suit, but was prevented from pursuing a motion for new trial or appeal because the district clerk failed to give notice of the judgment, the bill-of-review petitioner must establish a "meritorious ground of appeal" in lieu of a meritorious claim or defense. Petro-Chem. Transp., Inc. v. Carroll, 514 S.W.2d 240, 245-46 (Tex. 1974); Thompson v. Ballard, 149 S.W.3d 161, 164 (Tex.App.-Tyler 2004, no pet.). A "meritorious ground of appeal" is one that might, and probably would, result in a reversal of the trial court's judgment. Petro-Chem., 514 S.W.2d at 245; Thompson, 149 S.W.3d at 164.
Douglas had his appeal of his consolidated suits against the Joneses in the Fourteenth Court of Appeals in 2004 and allowed it to be dismissed for want of prosecution. The litigation history of Douglas's claims related to the Joneses and to his theft of their property that resulted in his conviction and sentence to life in prison, as well as numerous related claims, have been litigated by Jones in at least 22 directly and indirectly related causes of action to date. The trial court made the requisite findings to support dismissal of this suit under section 14.003(a) as a frivolous or malicious suit. See id. § 14.003(a)-(b) (listing factors to consider in determining frivolousness, namely, slight realistic chance of ultimate success of the claim, lack of arguable basis in law or in fact, inability of party to prove facts in support of claim, or claim's substantial similarity to previous claim filed by inmate because arising from same operative facts).
Our review of the record substantiates the trial court's findings that Douglas's suit is frivolous and malicious. Douglas has prosecuted his petition for a bill of review in the trial court and this Court since 2006, despite repeated prior rulings adverse to him in the consolidated cases against the Joneses and integrally related cases, despite his allowing his first appeal of the consolidated cases to languish for two years in the Fourteenth Court of Appeals without prosecution, despite never serving the Joneses with his 2006 petition for bill of review, despite the trial court's 2008 ruling finding him to be a vexatious litigant (as he had previously been found to be a vexatious litigant in other, related litigation), despite failing to serve the Joneses with his notice of appeal of the dismissal of his bill of review, and despite his failing to file the affidavit of previous filings and statement of his trust account required of all inmates who have filed an affidavit or unsworn declaration of inability to pay, as he has.
On this record, we can discern no basis on which Douglas could establish a meritorious ground of appeal. See Petro-Chem., 514 S.W.2d at 245. We, therefore, affirm the trial court's judgment dismissing Douglas's petition for bill of review as frivolous and malicious.
Judicial Misconduct
In his fourth and 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. Douglas contends that trial court's bias against him is shown by its order that the Executive Director of TDCJ and to the Chair of the Texas Board of Pardons and Paroles be sent certified copies of its order dismissing his suit as frivolous, malicious, and without basis in law or fact.
To reverse a judgment on the ground of judicial misconduct, we must find judicial impropriety coupled with probable prejudice to the complaining party. 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). We examine the entire record to determine whether these factors are present. Metzger, 892 S.W.2d at 39.
Section 14.003(e) of the Civil Practice and Remedies Code expressly provides that "[a] court that dismisses a claim brought by a person housed in a facility operated by or under contract with [TDCJ] may notify [TDCJ] of the dismissal." TEX. CIV. PRAC. REM. CODE ANN. § 14.003(e). The record, does not indicate why the trial court also directed that the Texas Board of Pardons and Paroles be notified of the dismissal, and we will not speculate as to the trial court's actions in the absence of any indication that Douglas could have brought forth evidence to establish the trial court's bias against him or the harm caused him by this notice. Rather, Douglas's "blizzard of unsuccessful state and federal civil litigation brought . . . against the complainants, prosecutors, defense attorneys, witnesses, judges, and other individuals and companies directly or indirectly involved in his criminal convictions, spanning seven years and, as evinced by the instant lawsuit, continuing into the present," argue against Douglas's ability to show judicial bias against him. See Douglas v. Haynes, No. H-09-0598, 2009 WL 1871964, at *1 (S.D.Tex. June 26, 2009). Finding no evidence to support Douglas's contention of judicial impropriety, we overrule his final issue.
CONCLUSION
We affirm the trial court's order finding appellant Ralph O. Douglas to be a vexatious litigant under Chapter 11 of the Texas Civil Practice and Remedies Code and requiring that he satisfy the statutory filing requirements for vexatious litigant prescribed by Chapter 11 in all future cases. We likewise affirm the trial court's order dismissing Douglas's suit under Chapter 14 of the Code as frivolous and malicious.
Justice SHARP, concurring and dissenting.
JIM SHARP, Justice, concurring and dissenting.
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. 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.
See TEX. CIV. PRAC. REM. CODE ANN. §§ 11.001-.056 (Vernon 2002).
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. The court must then stay the proceeding, notice the parties, and hold an evidentiary hearing on the matter. 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).
Id. at § 11.051.
See id. at §§ 11.052 (staying proceeding) and 11.053 (notice and hearing).
Id. at §§ 11.054-.056.
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. 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 defendants request within ninety days of filing the original answer is a statutory prerequisite for any vexatious litigant declaration.
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").
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. 298-99 n. 9.
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. 284-85. 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.
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).
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. 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? 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.
See Dishner, 162 S.W.3d at 377; Spiller, 21 S.W.3d at 454; Grossnickle, 115 S.W.3d at 252.
Compare Majority opinion, p. 291 (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).
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 and Akinwamide v. Transportation Insurance Company. 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. 284. Thus, Scott's or Akinwamide's silence as to section 11.101 was dictated by its inapplicability.
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).
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).
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. 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. Citing to University of Texas v. Morris and Birdo v. Holbrook, 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. Noting that both Morris and Birdo predated 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.
Id. at *1.
Id. at *3.
162 Tex. 60, 344 S.W.2d 426, 428 (1961).
775 S.W.2d 411, 412-13 (Tex.App.-Fort Worth 1989, writ denied).
2008 WL 660303, at *4.
Id.
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 and Birdo, 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. As the Akinwamide court correctly pointed out, both Morris and Birdo pre-date the Legislature's enactment of Chapter 11.
162 Tex. at 62, 344 S.W.2d at 428.
775 S.W.2d at 412-13.
2008 WL 660303, at *4.
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." Majority opinion, p. 284. 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. 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. 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.
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.
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").
TEX. CIC. PRAC. REM. CODE ANN. § 11.051; see Dishner, 162 S.W.3d at 377; Spiller, 21 S.W.3d at 454.
See TEX. CIV. PRAC REM. CODE ANN. § 11.051.
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. We examine the entire record to determine whether these factors are present.
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).
Metzger, 892 S.W.2d at 39.
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. Accordingly, I would overrule Douglas' final issue on this basis.
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).