                                   NO. 12-16-00078-CV

                           IN THE COURT OF APPEALS

                 TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

                                                §      APPEAL FROM THE 7TH
EX PARTE:
                                                §      JUDICIAL DISTRICT COURT
CHARLES ROSS
                                                §      SMITH COUNTY, TEXAS

                                  MEMORANDUM OPINION
       Charles Ross, acting pro se, appeals from an order declaring him a vexatious litigant. He
presents five issues on appeal. We reverse.


                                          BACKGROUND
       Appellant was indicted for aggravated sexual assault of a child in 1996. Following a jury
trial, Appellant was found guilty and sentenced to imprisonment for ninety-nine years. In 1998, this
Court affirmed Appellant’s conviction, without a written opinion. Over the years, Appellant has
initiated proceedings with this Court, the Texas Supreme Court, and the Texas Court of Criminal
Appeals, the majority of which were disposed of without written opinion or order. In 1998, the
Texas Court of Criminal Appeals refused Appellant’s petition for discretionary review, denied one
petition for writ of mandamus in 2002, and denied two petitions for writ of habeas corpus in 1999
and 2007. The Texas Supreme Court denied five petitions for writ of mandamus in 2002, 2005,
2007, 2011, and 2014, dismissed a direct appeal in 2012, and denied a petition for review in 2010.
The record also indicates that Appellant filed two unsuccessful appeals with the United States
Supreme Court.
       Additionally, Appellant filed various motions with the trial court, including requests for a
court of inquiry, a special grand jury, and equal access to the grand jury. The trial court denied
these motions. In one instance, Appellant sought relief from this Court, but we dismissed the
proceeding for want of jurisdiction. See In re Ross, No. 12-09-00317-CV, 2010 WL 3249456 (Tex.
App.—Tyler Aug. 18, 2010, orig. proceeding) (mem. op.). On February 4, 2016, the trial court, on
its own motion, determined that Appellant is a vexatious litigant under Chapter Eleven of the Civil
Practice and Remedies Code (the vexatious litigant statute). This appeal followed.


                                   VEXATIOUS LITIGANT ORDER
       In his second, third, and fourth issues, Appellant contends the trial court abused its
discretion by declaring him vexatious.
Standard of Review and Governing Law
       A trial court’s vexatious litigant finding is reviewed for abuse of discretion. See Pandozy v.
Beaty, 254 S.W.3d 613, 619 (Tex. App.—Texarkana 2008, no pet.). The trial court may enter a
vexatious litigant order on its own motion. TEX. CIV. PRAC. & REM. CODE ANN. § 11.101 (West
Supp. 2016). The Texas Civil Practice and Remedies Code allows a trial court to find a plaintiff
vexatious if two requirements are met. Id. § 11.054 (West Supp. 2016). First, there must be no
reasonable probability that the plaintiff will prevail on his claims, which relates to the substance of
the plaintiff’s claims. Id.; Walp v. Williams, 330 S.W.3d 404, 405 (Tex. App.—Fort Worth 2010,
no pet.). Second, in the seven-year period preceding the date of the motion, the plaintiff has
commenced, prosecuted, or maintained at least five litigations, each of which must have been
finally determined adversely to the plaintiff, permitted to remain pending at least two years without
having been brought to trial or hearing, or determined by a trial or appellate court to be frivolous or
groundless under state or federal laws or rules of procedure. TEX. CIV. PRAC. & REM. CODE ANN. §
11.054(1). This second requirement relates to the disposition of the plaintiff’s previously asserted
claims. Walp, 330 S.W.3d at 405.
Analysis
       Appellant’s fourth issue focuses on whether the vexatious litigant statute applies to criminal
matters. Appellant’s previous filings and subsequent appeals request that the district court convene
a court of special inquiry or a special grand jury. Appellant’s most recent pleading sought “equal
access to the grand jury.” Appellant claims the people who accused, prosecuted, and ultimately
convicted him were engaged in a conspiracy, and he wants to inform the grand jury of the “facts”
that support his assertion. Therefore, Appellant contends his claims are criminal, not civil, in
nature, and the vexatious litigant statute does not apply. We agree.
       The term “litigation” as used in the vexatious litigant statute refers to “a civil action
commenced, maintained, or pending in any state or federal court.” TEX. CIV. PRAC. & REM. CODE


                                                  2
ANN. § 11.001(2) (West Supp. 2016). When determining whether litigation qualifies as civil or
criminal, we look to the substance of the applicable pleadings. See Walp, 330 S.W.3d at 405, 407.
In this case, Appellant has pursued proceedings that are inherently civil in nature, such as petitions
for writ of mandamus. See In re Davis, No. 12-15-00238-CR, 2016 WL 1043132, at *1 (Tex.
App.—Tyler Mar. 16, 2016, orig. proceeding) (mem. op.). However, the remaining proceedings
relate to his requests for the convention of a grand jury. The grand jury is a creation of the criminal
codes. See TEX. CODE CRIM. PROC. ANN. art. 19.01, et seq. (West Supp. 2016). Furthermore, the
grand jury’s duty is to investigate criminal matters. Id. art. 20.09 (West 2005). In the seven years
before the trial court sua sponte found Appellant vexatious, Appellant initiated several proceedings
that relate to the convening of a grand jury, the substance of which pertains to his criminal
conviction. Even the trial court’s vexatious litigant order expressly recognizes that Appellant’s
filings are attempts to “pursue disguised appellate relief” regarding his criminal conviction. As a
result, we conclude that within the applicable seven-year period, Appellant has not commenced,
prosecuted, or maintained at least five civil litigations. See TEX. CIV. PRAC. & REM. CODE ANN. §
11.054(1).
         Because Appellant’s filings within the applicable time frame are criminal in nature and he
does not have the requisite number of previous civil litigations to qualify as a vexatious litigant, the
trial court abused its discretion by finding Appellant to be vexatious. See id; see also Walp, 330
S.W.3d at 407.         Accordingly, we sustain Appellant’s fourth issue, and need not address his
remaining issues.1 See TEX. R. APP. P. 47.1.


                                                    DISPOSITION
         Having sustained Appellant’s fourth issue, we reverse the trial court’s February 4, 2016
order declaring Appellant to be a vexatious litigant, and render judgment vacating the order.
                                                                               GREG NEELEY
                                                                                  Justice

Opinion delivered February 15, 2017.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

                                                     (PUBLISH)
         1
           In his first issue, Appellant contends that the trial court erred in denying his motion for equal access to the
grand jury. The order denying Appellant’s motion was signed and entered on October 10, 2013. Therefore, Appellant’s
appeal of that order is untimely and we decline to address that issue. See TEX. R. APP. P. 26.2. In his fifth issue,
Appellant challenges the trial court’s failure to issue findings of fact and conclusions of law. However, findings and
conclusions are only required after a trial. See TEX. R. CIV. P. 296.


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                                  COURT OF APPEALS

     TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                          JUDGMENT

                                        FEBRUARY 15, 2017


                                        NO. 12-16-00078-CV


                                  EX PARTE: CHARLES ROSS


                                 Appeal from the 7th District Court
                      of Smith County, Texas (Tr.Ct.No. 13-1396-A/B/A)

                      THIS CAUSE came to be heard on the appellate record and the briefs filed
herein, and the same being considered, it is the opinion of this court that there was error in the
order of the trial court below and that the same should be reversed and judgment rendered.
                      It is therefore ORDERED, ADJUDGED and DECREED by this Court that
the trial court’s February 4, 2016 order declaring Appellant to be a vexatious litigant be
reversed, and judgment rendered vacating the order; and that this decision be certified to the
court below for observance.
                   Greg Neeley, Justice.
                   Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
