                                  In The
                             Court of Appeals
                    Seventh District of Texas at Amarillo
                            ________________________

                   Nos. 07-12-0095-CV, 07-12-0139-CV, 07-12-0509-CV
                            ________________________


                         R. WAYNE JOHNSON, APPELLANT

                                           V.

                              APRIL RIGGS, APPELLEE
                            ________________________

                       IN RE R. WAYNE JOHNSON, RELATOR



                         On Appeal from the 181st District Court
                                  Randall County, Texas
                Trial Court No. 64,226B, Honorable John Board, Presiding
                                           And
                                   Original Proceedings


                                   March 22, 2013

                           MEMORANDUM OPINION
                     Before Quinn, C.J., and Campbell and Pirtle, JJ.


      Appellant R. Wayne Johnson, a prison inmate appearing pro se, is a vexatious

litigant subject to a prefiling order under Chapter 11 of the Texas Civil Practice and
Remedies Code.1         On July 19, 2011, he sued appellee April Riggs seeking actual

damages of $20,000 and punitive damages allegedly resulting from her claimed

solicitation of “state actors to halt [Johnson‟s] fundamental right to free speech, his

mail.”


         The trial court dismissed Johnson‟s suit for failure to obtain the prefiling

permission of the local administrative judge2 and assessed a monetary sanction against

Johnson. Johnson timely appealed. In conjunction with his case on appeal, Johnson

filed two petitions for writ of mandamus,3 a motion to voluntarily dismiss the appeal, and

other motions. The parties request the imposition of appellate sanctions against the

other and Johnson asks that we hold Riggs‟ appellate counsel in contempt. We will

grant Johnson‟s motion for voluntary dismissal, deny the mandamus petitions and

render additional orders.


                                         Background


         Throughout these proceedings, Johnson has been incarcerated in Potter County,

Texas. He filed his lawsuit against Riggs in the 100th District Court of Collingsworth

         1
         See Johnson v. Clark, No. 07-11-00122-CV, 2011 Tex. App. Lexis 8593, at *1-2
(Tex.App.--Amarillo Oct. 28, 2011, no pet.) (mem. op.) (noting Johnson “has been
declared a vexatious litigant and the 156th District Court of Bee County entered a
prefiling order requiring that he obtain permission of a local administrative judge before
filing new litigation in a Texas court”); Chapter 11, Tex. Civ. Prac. & Rem. Code Ann. §§
11.001-11.104 (West 2002 and Supp. 2012); Texas Office of Court Administration,
Vexatious Litigant Order http://www.courts.state.tx.us/oca/pdf/vex/RWayneJohnson-
akaLegalEagle.pdf.
         2
             Tex. Civ. Prac. & Rem. Code Ann. §§ 11.101(a)(2); 11.102 (West Supp. 2012).
         3
          These petitions bear case numbers 07-12-0139-CV and 07-12-0509-CV.
Because the issues raised are merely variations of Johnson‟s contentions on appeal,
we will address and dispose of the two original proceedings through this opinion.

                                              2
County. Riggs was a resident of Randall County. Nothing in the record indicates the

cause of action Johnson alleged accrued in whole or in part in Collingsworth County or

that venue in that county was otherwise mandatory or permissive.


      On August 15, 2011, Riggs moved for a change of venue to Randall County.

Johnson did not respond to the motion but filed an amended petition adding claims

against three other parties.4 By order signed September 22, 2011, the district court of

Collingsworth County transferred the case to the 181st District Court of Randall County.


      In a motion filed January 10, 2012, Riggs brought to the attention of the trial court

that Johnson was a vexatious litigant subject to a prefiling order. Attached to the motion

was a copy of an appellate decision wherein the court noted with supporting citations

that “Johnson has been declared a vexatious litigant in at least three district courts of

the State of Texas.” In re Johnson, No. 06-11-00096-CV, 2011 Tex App. Lexis 8003, at

*1 n.1 (Tex.App.--Texarkana Oct. 7, 2011, orig. proceeding) (mem. op.). The motion

referred the court to the requirement of Chapter 11 that the court stay the litigation and

dismiss the case unless, not later than ten days after the notice was filed, Johnson

obtained permission to pursue his lawsuit from the local administrative judge.


      The motion also requested an award of monetary sanctions against Johnson for

filing a pleading violating rule of civil procedure 13. Attached to the motion was the

affidavit of Riggs‟ attorney supporting the requested award of attorney‟s fees.          A

      4
        For the purpose of finality of the judgment on appeal, we treat the three parties
added by Johnson‟s amended pleading as nonsuited from the cause. So far as the
record shows, service was never properly requested on these parties, they were never
served and they never entered an appearance. See Youngstown Sheet & Tube Co. v.
Penn, 363 S.W.2d 230, 232 (Tex. 1962) (describing when failure to obtain service on
defendant may be treated as a nonsuit for purposes of determining finality of judgment).

                                            3
certificate of service indicates Johnson was served a copy of Riggs‟ motion by certified

mail, return receipt requested at his prison address. Johnson did not file a response or

obtain the permission of the local administrative judge to proceed with his suit.


         By an order signed January 31, 2012, the trial court dismissed Johnson‟s suit for

failure to obtain permission of the local administrative judge to file suit. The order also

awarded a monetary sanction against Johnson as compensation for Riggs‟ attorney‟s

fees. In a pleading filed in the trial court on February 21, 2012, Johnson asserted he

was denied due process when the trial court dismissed his suit and imposed sanctions

without notice and a hearing. The trial court took no action on the pleading. This

appeal followed.


                                         Analysis


Johnson‟s Motion to Dismiss the Appeal


         After briefing was completed, Johnson filed a motion seeking voluntary dismissal

of his appeal.      An appellate court may dismiss an appeal in accordance with an

appellant‟s motion. Tex. R. App. P. 42.1(a)(1). We will grant Johnson‟s motion, and

dismiss his appeal.


Riggs‟ Cross-Issue


         In a cross-issue, Riggs argues Johnson has not met certain procedural

requirements of Chapter 14 of the Texas Civil Practice and Remedies Code 5 on appeal

and therefore his brief should be “unfiled” and subsequently dismissed absent timely


         5
             Tex. Civ. Prac. & Rem. Code Ann. §§ 14.001-14.014 (West 2002 & Supp.
2012).
                                             4
compliance with the statute. Since we have granted Johnson‟s motion for voluntary

dismissal of the appeal, we dismiss Riggs‟ cross-issue as moot.


Riggs‟ Request for Appellate Sanctions


      Riggs argues Johnson‟s appellate brief is frivolous and “appropriate sanctions”

should be imposed for its “frivolous portions.”    Appellate rule 45 authorizes us to

sanction an appellant if we determine the appeal is frivolous. Tex. R. App. P. 45. “An

appeal is frivolous when the record, viewed from the perspective of the advocate, does

not provide reasonable grounds for the advocate to believe that the case could be

reversed.” Owen v. Jim Alee Imports, Inc., 380 S.W.3d 276, 290 (Tex.App.--Dallas

2012, no pet.) (citing Smith v. Brown, 51 S.W.3d 376, 381 (Tex.App.--Houston [1st Dist.]

2001, pet. denied)). The decision to award sanctions rests with the sound discretion of

the appellate court. Rios v. Northwestern Steel & Wire Co., 974 S.W.2d 932, 936

(Tex.App.--Houston [14th Dist.] 1998, no pet.). We may not consider any matter that

does not appear in the record, briefs or other papers filed in the court of appeals, Tex.

R. App. P. 45, we must act with prudence, caution, and careful deliberation, Rios, 974

S.W.2d at 936, and, viewing the record from the advocate‟s standpoint we consider

whether there were reasonable grounds to believe the trial court‟s judgment was

reversible. Smith v. Brown, 51 S.W.3d 376, 382 (Tex.App.--Houston [1st Dist.] 2001,

pet. denied) (applying Rule 45); Safeway Managing Gen. Agency v. Cooper, 952

S.W.2d 861, 870 (Tex.App.--Amarillo 1997, no writ) (applying predecessor Rule 84).


      By his first appellate issue, Johnson asserted that even though he selected

Collingsworth County as the situs for his suit against Riggs, venue in Potter County was

mandatory because of his status as a prison inmate in that county and the order
                                            5
transferring venue to Randall County therefore is void.6 In his second issue, Johnson

argued the order dismissing his suit under Chapter 11 for failure to obtain prior

permission of the local administrative judge is void because it was issued in violation of

his due process rights to notice and a hearing. 7 By his third appellate issue, Johnson

argued his due process rights were violated when the trial court awarded a monetary

sanction without first affording him notice, an opportunity for hearing, and appointment

of counsel.


       Having dismissed his appeal on Johnson‟s motion, we express no opinion on the

merits of the three issues he raised but, considering the entire record, we deny Riggs‟

motion for sanctions on appeal.


Johnson‟s Simultaneous Pursuit of Review by Mandamus


       During the pendency of this appeal, Johnson filed two petitions for writ of

mandamus directly related to the relief he sought on appeal. We have consolidated

these petitions with this appeal for disposition.


       6
         This court and at least one other court of appeals have rejected such a
contention. In re Johnson, No. 07-11-00497-CV, 2012 Tex. App. Lexis 336 (Tex.App.--
Amarillo Jan. 13, 2012, orig. proceeding) (mem. op.) (addressing same contention in
mandamus proceeding against judge of 100th District Court of Collingsworth County);
see also Johnson v. Cornelius, No. 07-11-00091-CV, 2011 Tex. App. Lexis 7762
(Tex.App.--Amarillo Sept. 28, 2011, no pet.) (mem. op.); In re Johnson, No. 07-10-0254-
CV, 2011 Tex. App. Lexis 4886, at *5-6 n.3 (Tex.App.--Amarillo, June 28, 2011, orig.
proceeding) (mem. op.); In re Johnson, No. 12-07-0032-CV, 2007 Tex. App. Lexis 673
(Tex.App.--Tyler, January 31, 2007, orig. proceeding) (mem. op.) (each addressing
similar contention by Johnson).
       7
        On similar facts, we previously have addressed and overruled a like argument
by Johnson. Johnson v. Rodriguez, No. 07-11-0485-CV, 2012 Tex. App. Lexis 9751
(Tex.App.--Amarillo Nov. 28, 2012, no pet.) (mem. op.) (finding no violation of due
process rights in dismissal of suit under Chapter 11).

                                              6
       Case No. 07-12-0139-CV


       In case number 07-12-0139-CV, Johnson seeks mandamus against the

Honorable Stuart Messer, judge of the 100th District Court of Collingsworth County. His

petition asks that we direct Judge Messer to rescind his September 22, 2011 order

transferring Johnson‟s suit to Randall County.8 We deny the petition for mandamus, for

both procedural and substantive reasons.


       The petition does not meet the specifications of appellate rule 52.3 (form and

contents of petition) and it lacks a proper and sufficient record as required by appellate

rule 52.7. Tex. R. App. P. 52.3 & 52.7; see In re Johnson, No. 11-13-00059-CV, 2013

Tex. App. Lexis 1608, at *1-2 (Tex.App.--Eastland Feb. 21, 2013, orig. proceeding) (per

curiam, mem. op.) (concerning inadequacy of Johnson‟s mandamus record, noting pro

se litigant is not exempt from complying with procedural rules).


       In substance, the petition does not demonstrate a clear abuse of discretion by

Judge Messer. See In re Prudential Ins. Co. of America, 148 S.W.3d 124, 135 (Tex.

2004) (orig. proceeding) (standard for mandamus relief). The petition was filed April 13,

2012, over six months after Judge Messer had signed the order transferring the case to

Randall County. Judge Messer‟s plenary jurisdiction to rescind the transfer order had

long expired by the time Johnson filed his petition. See In re Southwestern Bell Tel.

Co., 35 S.W.3d 602, 605 (Tex. 2000) (orig. proceeding) (per curiam) (“After a trial court

grants a motion to transfer venue, it retains plenary jurisdiction over the case for thirty

days”).


       8
      In a subsequent motion, he requested “due process.” We will consider these
documents together as Johnson‟s petition in case number 07-12-0139-CV.
                                             7
       Case number 07-12-0509-CV


       Johnson‟s petition for mandamus in case number 07-12-0509-CV, filed

November 26, 2012, is addressed to the Honorable John Board, judge of the 181st

District Court of Randall County.     It complains of the grant of attorney‟s fees as a

sanction in the order dismissing Johnson‟s suit against Riggs. The argument is merely

an expansion of that urged through his third issue in his appeal of the trial court‟s order.


       We note initially that the petition carries the same procedural deficiencies as that

in case number 07-12-0139-CV.


       Moreover, the petition does not, and cannot, demonstrate that Johnson had no

adequate remedy by appeal. See In re Prudential, 148 S.W.3d at 135-36 (stating that

requirement for mandamus). At the time he filed his mandamus petition, there was

pending an appeal of the trial court‟s order dismissing Johnson‟s suit against Riggs. In

his motion to dismiss his appeal, Johnson asserted that an appeal does not lie from a

void order. The assertion is misguided. At the outset, we note that Johnson has not

demonstrated that the order of the trial court dismissing Johnson‟s suit against Riggs is

void. That aside, while it is true that trial court actions that are void may be challenged

by petition for mandamus, see In re Dickason, 987 S.W.2d 570, 571 (Tex. 1998) (orig.

proceeding, per curiam), an order may also be challenged as void in an appeal. See In

re Johnson, Nos. 14-09-00603-CV & 14-09-00614-CV, 2009 Tex. App. Lexis 5649, at

*2-3 (Tex.App.--Houston [14th Dist.] 2009, orig. proceeding) (per curiam, mem. op.)

(disagreeing with Johnson‟s theory that an appeal does not lie from a void order). And

the extraordinary remedy of mandamus is available “only in situations involving manifest

and urgent necessity and not for grievances that may be addressed by other remedies.”
                                             8
Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 684 (Tex. 1989) (orig. proceeding);

see In re Olshan Found. Repair Co., LLC, 328 S.W.3d 883, 887-88 (Tex. 2010 (orig.

proceeding).     In Holloway, the supreme court held the court of appeals abused its

discretion by granting relief by extraordinary writ to remedy a perceived error of the trial

court when an appeal directly attacking the trial court‟s judgment also was pending. 767

S.W.2d at 684. Here, as noted, the issue Johnson raises in the petition for mandamus

is the same as that asserted in the direct appeal of the order that terminated Johnson‟s

litigation against Riggs. Holloway teaches that mandamus relief is not available here.

Id. And nothing in the supreme court‟s more recent mandamus jurisprudence suggests

otherwise. See In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 467-68 (Tex. 2008) (orig.

proceeding); In re Prudential, 148 S.W.3d at 136 (discussing “no adequate remedy by

appeal” requirement). That Johnson later voluntarily dismissed his appeal does not

change things.


       Johnson has attached to his petition an argument that the 2001 order of a Bee

County district court declaring him a vexatious litigant and subjecting him to Chapter

11‟s prefiling requirement is void. In a subsequently-filed motion, Johnson asserts the

2001 order was entered after the plenary power of the Bee County district court expired.

We consider these arguments part of Johnson‟s petition.            But, as with his other

assertions, Johnson wholly fails to support these contentions with a proper mandamus

record.


       For all these reasons, Johnson‟s petition for writ of mandamus in case number

07-12-0509-CV is denied.



                                             9
Johnson‟s June 5, 2012 Pleading


      On June 5, 2012, Johnson filed in this Court a document containing multifarious

contentions, some addressing statements made in Riggs‟ appellee‟s brief in the appeal,

and some arguing for mandamus relief against Judge Board. In part, the mandamus

relief sought is characterized as based on section 15.0642 of the Civil Practice &

Remedies Code. Tex. Civ. Prac. & Rem. Code Ann. § 15.0642 (West 2002). We will

address that particular request, which flows from Johnson‟s contention that mandatory

venue for his suit against Riggs lay in Potter County, under section 15.019 of the Civil

Practice & Remedies Code. Tex. Civ. Prac. & Rem. Code Ann. § 15.019 (West 2002)

As Johnson points out, mandatory venue mandamus is available under section 15.0642

without regard to the adequacy of an appellate remedy. In re Missouri Pac. R.R. Co.,

998 S.W.2d 212, 216 (Tex. 1999) (orig. proceeding). By the terms of section 15.0642,

however, mandamus relief is available before trial. See In re Missouri Pac., 998 S.W.2d

at 216 (section contains “a timetable for seeking mandamus”). Nothing before us shows

that Johnson brought his mandatory venue contention to the attention of Judge Board.

Moreover, Johnson had in place a timely appeal of the order dismissing his suit against

Riggs. By its enactment of section 15.0642, the Legislature did not replace resolution of

venue issues on appeal. See Tex. Civ. Prac. & Rem. Code Ann. § 15.064(b); In re

Missouri Pac., 998 S.W.2d at 216 (enacting section 15.0642, Legislature “left in place

the „presumed harm‟ rule for challenging venue in an appeal after trial”). Under the

circumstances presented here, Johnson‟s invocation of section 15.0642 adds nothing of

substance to his request for mandamus relief.




                                           10
Johnson‟s Remaining Pending Motions


       In the part of his June 5, 2012 pleading replying to Riggs‟ appellee‟s brief,

Johnson moves for an order holding Riggs‟ appellate counsel in contempt, striking

Riggs‟ appellate brief, and awarding appellate sanctions under appellate rule 45. We

find no basis in the record for any of the relief Johnson requests and all relief sought by

the pleading is denied.


       In the direct appeal, Johnson filed a document entitled “motion to afford due

process.” From its substance, it is more accurately characterized as an additional reply

brief. Putting aside Johnson‟s failure to request and obtain leave to file further appellate

briefing, Tex. R. App. P. 38.7 (“A brief may be amended or supplemented whenever

justice requires, on whatever reasonable terms the court may prescribe”), because we

have dismissed the appeal on Johnson‟s motion, the motion is dismissed as moot. To

the extent Johnson seeks further relief by the motion, it is denied.


       On February 22, 2013, Johnson filed a motion challenging the trial court‟s

jurisdiction based on the asserted absence of jurisdiction in the Bee County district court

to issue the 2001 prefiling order.    The substance of the motion is identical to that

previously mentioned in conjunction with case number 07-12-0509-CV. We again note

that Johnson‟s claim is not supported by a proper or adequate record. The motion is

denied.


                                        Conclusion


       On Johnson‟s motion, the appeal in case number 07-12-0095-CV is dismissed.

Johnson‟s petitions for writ of mandamus bearing case numbers 07-12-0139-CV and

                                            11
07-12-0509-CV are denied. Johnson‟s motion for contempt and appellate sanctions is

denied. Riggs‟ motion for appellate sanctions is denied. All remaining motions of the

parties in case numbers 07-12-0095-CV, 07-12-0139-CV, and 07-0509-CV are denied.

As Johnson is indigent, no costs are taxed.




                                                    James T. Campbell
                                                        Justice




                                              12
