                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-09-00444-CV


GARY REED WALP                                                        APPELLANT

                                         V.

EDDIE C. WILLIAMS                                                       APPELLEE


                                     ------------

          FROM THE 89TH DISTRICT COURT OF WICHITA COUNTY

                                     ------------

                                    OPINION
                                     ------------

      Appellant Gary Reed Walp, an inmate at the James V. Allred Unit of the

Texas Department of Criminal Justice, Institutional Division (TDCJ), appeals from

the trial court‘s dismissal of his claims against Appellee Eddie C. Williams, senior

warden at the Allred Unit.    In this appeal, we consider whether an inmate‘s

application for writ of habeas corpus challenging the loss of good-time credit may

serve as the basis for a finding that the inmate is a vexatious litigant under

section 11.054(1) of the civil practice and remedies code. We hold that it may
not. Because we hold that the trial court erred by finding Walp a vexatious

litigant, we reverse the trial court‘s order dismissing his claims and remand the

case to the trial court.

      In his petition, Walp alleged the following facts. On March 28, 2008, after

Walp and other prisoners had been placed on lockdown, Williams authorized the

seizure of Walp‘s radio and night lamp.          Walp alleged that Williams had

authorized the lockdown as a pretext for seizing Walp‘s property, that the seizure

violated TDCJ‘s lockdown policy, and that the seizure of his property was ―meant

to cause [him] psychological pain associated with anger, resentment, and hatred

towards authority.‖

      Williams filed an answer asserting a general denial, various affirmative

defenses, and immunity.       Williams also filed a motion to declare Walp a

vexatious litigant.

      A hearing, which Walp attended, was held on Williams‘s motion. The trial

court entered an order granting Williams‘s motion and finding Walp to be a

vexatious litigant. Based on that finding, the trial court ordered that Walp furnish

security of $1,000 by December 3, 2009, and that ―should [Walp] fail to furnish

such security within the time set by this Order, the above referenced and

numbered cause is [dismissed].‖          Walp did not furnish the security.      On

December 11, 2009, Walp filed his notice of appeal to this court. Walp also filed

a motion for reconsideration to file litigation, which the local administrative judge

denied on February 2, 2010.

                                     2
      In Walp‘s first of four points, he argues that the trial court erred by

declaring him a vexatious litigant.       Civil practice and remedies code section

11.054(1) allows a trial court to find a plaintiff a vexatious litigant if the defendant

establishes two prongs of the statute, one relating to the substance of the

plaintiff‘s claims and one relating to the disposition of previous claims asserted by

the plaintiff. Tex. Civ. Prac. & Rem. Code Ann. § 11.054 (Vernon 2002). First,

the defendant must show that there is not a reasonable probability that the

plaintiff will prevail on his claims against the defendant.         Id.   Second, the

defendant must show that, 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

      (A) finally determined adversely to the plaintiff;
      (B) permitted to remain pending at least two years without having
      been brought to trial or hearing; or
      (C) determined by a trial or appellate court to be frivolous or
      groundless under state or federal laws or rules of procedure.

Id. The term ―litigations‖ as used in the statute refers only to civil actions. Id.

§ 11.001(2) (Vernon 2002).

      If the trial court finds the plaintiff is a vexatious litigant, it must order the

plaintiff to furnish security for the defendant‘s benefit.     Id. § 11.055 (Vernon

2002). If the plaintiff fails to furnish security, the trial court must dismiss the

litigation. Id. § 11.056 (Vernon 2002).

      Here, Williams introduced evidence of six previous claims in the seven

years immediately preceding the date of Williams‘s motion. Williams established

                                      3
that Walp had filed four civil cases in state court. Williams also presented two

exhibits regarding filings in federal court. Exhibit A was a copy of an order from

the Fifth Circuit dismissing an appeal by Walp for failing to timely file a motion for

certificate of appealability.   Williams concedes that this appeal was from the

denial of habeas relief.

      Exhibit B was an order of dismissal and a report and recommendation of

dismissal on Walp‘s application for a writ of habeas corpus challenging a

disciplinary proceeding that resulted in ―a loss of good time and a reduction in

time-earning class status.‖ The order states that Walp was eligible for mandatory

supervision, and therefore he presented a legitimate claim for federal habeas

relief, but that the application was moot because he had already been released

from physical custody on mandatory release. Williams argues that either one of

the exhibits establishes the fifth litigation required under the vexacious litigant

statute. See id. § 11.054.

      This court has not addressed whether an application for writ of habeas

corpus challenging a loss of good-time credit may be considered a ―litigation‖ that

can be used to satisfy section 11.054(1)—that is, whether it may be classified as

a civil action.   The Texas Court of Criminal Appeals has on two previous

occasions considered how to classify an application for a writ of habeas corpus

under Texas law. In Ex parte Rieck, the court considered how to characterize an

inmate‘s habeas application complaining about the time credit consequences of

his parole revocation. 144 S.W.3d 510, 519 (Tex. Crim. App. 2004). Although

                                      4
the issue in that case was whether an application for habeas relief can be

considered a ―lawsuit‖ for purposes of government code section 498.0045, Tex.

Gov‘t Code Ann. § 498.0045 (Vernon Supp. 2010) (requiring the forfeiture of an

inmate‘s good conduct time if an inmate files a lawsuit that is dismissed as

frivolous, but not addressing whether it should be characterized as civil or

criminal), the court did discuss the trouble with characterizing applications for

habeas relief. Rieck, 144 S.W.3d at 515–16. The court observed that ―most

jurisdictions have traditionally regarded habeas corpus as a civil remedy, even

when the relief sought is from confinement in the criminal justice system‖ but that

―courts have struggled with how to characterize habeas proceedings and have

sometimes characterized them as ‗neither civil nor criminal but rather sui

generis.‘‖ Id. It noted that the United States Supreme Court has acknowledged

the characterization of habeas corpus proceedings as civil but has also referred

to that label as ―gross and inexact‖ and has stated that ―[e]ssentially, the

proceeding is unique.‖ Id. at 516 (citing Harris v. Nelson, 394 U.S. 286, 293–94,

89 S. Ct. 1082, 1087 (1969)). The court of criminal appeals also noted that

―Texas has gone further in eschewing the civil label for habeas proceedings

arising from criminal prosecutions or convictions.        Such proceedings are

categorized as ‗criminal‘ for jurisdictional purposes and the Texas Rules of Civil

Procedure do not ordinarily apply.       Article 11.07 habeas proceedings are

categorized as criminal proceedings by statute.‖ Id.




                                    5
      The court ultimately held that a habeas proceeding under code of criminal

procedure article 11.07 is not a ―lawsuit‖ for purposes of government code

section 498.0045. Id. at 521. The legislature subsequently modified section

498.0045 so that the term ―lawsuit‖ includes proceedings arising from an

application for writ of habeas corpus when the application was dismissed

because it was brought for the purpose of abusing judicial resources. See Tex.

Gov‘t Code Ann. § 498.0045(a), (a-1). But although such an application for writ

of habeas corpus is now considered a ―lawsuit‖ for purposes of section 498.0045,

id., the legislature has not expressly characterized it as civil in nature, and neither

has the court of criminal appeals.

      The court of criminal appeals has also held that chapter 11 of the civil

practice and remedies code does not apply to an application for writ of habeas

corpus under article 11.07. See Aranda v. Dist. Clerk, 207 S.W.3d 785, 786

(Tex. Crim. App. 2006). In Aranda, the court held that a person found to be a

vexatious litigant under that chapter is not prohibited from filing an application for

an article 11.07 writ of habeas corpus because (1) chapter 11 only prohibits the

filing of new civil actions and (2) an application for habeas relief under article

11.07 is not a civil action. Id. The court referenced Rieck and noted that ―we

have said that when a person is confined for violating a criminal statute and files

an application for a writ of habeas corpus challenging his confinement, the

proceeding is criminal, not civil, in nature.‖     Id.   Thus, under Texas law, an

application for habeas relief under article 11.07 is not a civil action that an inmate

                                      6
may be prohibited from filing if that inmate has been declared a vexatious litigant

under section 11.054.

      We therefore conclude that if an article 11.07 habeas proceeding is not a

civil action that an inmate would be prohibited from filing if he has been found to

be a vexatious litigant under chapter 11, then neither can it be a civil action for

purposes of finding the inmate to be a vexatious litigant in the first place. We

further conclude that if an application for habeas relief under federal law

challenges an inmate‘s confinement, then the court of criminal appeals‘s

characterization of the proceedings as criminal still applies.1

      In this case, two of the previous filings relied on by Williams (Exhibit A and

Exhibit B) were applications for a writ of habeas corpus. The record does not

show the substance of Walp‘s claim in Exhibit A. The trial court therefore could

not have determined that the filing was a civil action filed by Walp. Exhibit B

consists of a judgment and a report and recommendation of dismissal on a claim

by Walp challenging his loss of good-time credits and, thus, challenging the

duration of his confinement. See Preiser v. Rodriguez, 411 U.S. 475, 500, 93 S.

Ct. 1827, 1841 (1973) (holding that an inmate who challenges a disciplinary

proceeding that resulted in the loss of good-time credit is ―attacking the very

      1
        Further supporting our conclusion that applications for habeas relief
challenging an inmate‘s confinement do not fall within the purview of section
11.054 are the already-existing schemes for addressing inmates who repeatedly
file such applications. See Tex. Code Crim. Proc. Arts. 11.07, § 4(a), 11.071,
§ 5(a) (Vernon 2005); see also Ex parte Barber, 879 S.W.2d 889, 893 n.1 (Tex.
Crim. App. 1994) (discussing the abuse of writ doctrine).


                                     7
duration of [his] physical confinement itself‖). We hold that this filing was criminal

in nature and therefore cannot satisfy the section 11.054(1) criteria.

      Williams argues that in the case shown in Exhibit B, Walp also asserted a

claim for damages based on retaliatory use of prison procedures and that this

claim had been dismissed as frivolous. But the appellate record does not contain

any reference to such a claim. See Tex. R. App. P. 34.1 (providing that the

appellate record consists of the clerk‘s record and, when necessary, the

reporter‘s record).   Williams attempted to supplement the appellate record to

include such evidence, but because that evidence was not produced in the trial

court, we cannot consider it in reviewing the trial court‘s finding.      See Disco

Mach. of Liberal Co. v. Payton, 900 S.W.2d 71, 74–75 (Tex. App.—Amarillo

1995, no writ) (―Leave to supplement merely encompasses permission to

augment the appellate record with the existing trial court record; it does not allow

the creation of a new trial court record.‖); see also Willmann v. City of San

Antonio, 123 S.W.3d 469, 482 n.6 (Tex. App.—San Antonio 2003, pet. denied)

(refusing to consider evidence that was not presented as evidence for the trial

court to consider); Clark v. Noyes, 871 S.W.2d 508, 520 n.5 (Tex. App.—Dallas

1994, no writ) (stating that a court of appeals considers only evidence tendered

or admitted at the time of the hearing and that ―[i]f we were to consider evidence

for the first time, never presented to the trial court, we would in effect be

converting this Court into a court of original jurisdiction‖).




                                       8
         Because the record before the trial court showed only four previous civil

actions brought by Walp, Williams did not establish that Walp met the criteria of a

vexatious litigant. See Tex. Civ. Prac. & Rem. Code Ann. § 11.054(1). Applying

the appropriate standard of review, see Leonard v. Abbott, 171 S.W.3d 451,

458–59 (Tex. App.—Austin 2005, pet. denied), we hold that the trial court abused

its discretion by granting Williams‘s motion. Accordingly, we sustain Walp‘s first

point.

         In Walp‘s second point, he asserts that the trial court erred by excluding

his evidence. From Walp‘s description of his exhibits, all of the evidence that he

wished to offer related to whether there was no reasonable probability that he

would prevail on his claims against Williams. Because we have sustained Walp‘s

first point, we need not reach this issue. See Tex. R. App. P. 47.1.

         In Walp‘s third point, he contends that the trial court erred by dismissing

his case. The trial court‘s order requiring Walp to post security was based on the

trial court‘s finding that Walp was a vexatious litigant. Because the trial court

abused its discretion by finding Walp a vexatious litigant, the trial court also

abused its discretion by ordering Walp to post the security required after such a

finding and by dismissing Walp‘s case for failure to post that security.        We

sustain Walp‘s third point.

         In Walp‘s fourth and final point, he argues that the local administrative

judge abused its discretion by denying his motion for reconsideration to file

litigation. Although the order denying the motion appears in the appellate record,

                                      9
the motion itself does not.    A document that appears to be such a motion

(bearing no indication that it was ever filed) is attached to Walp‘s supplemental

brief, but we may not consider it. See In re A.D.A., 287 S.W.3d 382, 389 (Tex.

App.—Texarkana 2009, no pet.) (noting that courts of appeals may not consider

documents that are attached as appendices to briefs that are not part of the

appellate record); Randle v. Wilson, 26 S.W.3d 513, 516 n.1 (Tex. App.—

Amarillo 2000, no pet.) (same). Assuming that Walp‘s motion related to his suit

in this case, because we have already held that the trial court abused its

discretion by finding Walp a vexatious litigant and dismissing his claim, we do not

need to reach this point. See Tex. R. App. P. 47.1.

      Having sustained Walp‘s dispositive points, we reverse the trial court‘s

order finding Walp a vexatious litigant and dismissing his claim for failure to post

security, and we remand this cause to the trial court for further proceedings.




                                                   LEE GABRIEL
                                                   JUSTICE

PANEL: DAUPHINOT, WALKER, AND GABRIEL, JJ.

DAUPHINOT, J., filed a concurring opinion.

DELIVERED: December 16, 2010




                                     10
                            COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH

                               NO. 02-09-00444-CV


GARY REED WALP                                                         APPELLANT

                                          V.

EDDIE C. WILLIAMS                                                       APPELLEE


                                      ----------

          FROM THE 89TH DISTRICT COURT OF WICHITA COUNTY

                                      ----------

                            CONCURRING OPINION
                                      ----------

      The majority states that ―if an application for habeas relief under federal

law challenges an inmate‘s confinement, then the court of criminal appeals‘s

characterization of the proceedings as criminal still applies.‖2 I agree, but I write

separately because the majority does not but should expressly hold that Walp‘s

habeas action in this case was a challenge to his confinement.



      2
       Majority op. at 7.


                                     11
      Under Texas law, with limited exception, the State must release an inmate

to mandatory supervision when his time served plus good conduct time equals

his sentence.3 The court of criminal appeals has granted habeas relief under

article 11.07 when an inmate who was entitled to immediate release under

mandatory supervision was still confined despite his right to release.4

      But the court of criminal appeals apparently sees a difference between (1)

a claim by an inmate entitled to immediate mandatory release that he is being

illegally detained in violation of the mandatory supervision provision, and (2) an

inmate‘s challenge to a disciplinary proceeding that resulted in the loss of good-

time credit, which would then result in the inmate at some point in the future

being detained beyond the point at which he would have been entitled to

mandatory supervision had good-time credit not been forfeited. That court has

indicated that a challenge to the loss of good-time credit is a challenge to the

condition, rather than the fact, of the inmate‘s confinement.5


      3
       Tex. Gov‘t Code Ann. § 508.147 (Vernon 2004) (―[A] parole panel shall
order the release of an inmate who is not on parole to mandatory supervision
when the actual calendar time the inmate has served plus any accrued good
conduct time equals the term to which the inmate was sentenced.‖), § 508.149
(Vernon 2004) (setting out circumstances in which an inmate is not eligible for
mandatory supervision).
      4
       See, e.g., Ex parte McGee, 962 S.W.2d 49, 49 (Tex. Crim. App. 1998).
      5
        See Ex parte Palomo, 759 S.W.2d 671, 674 (Tex. Crim. App. 1988)
(noting that the court of criminal appeals does not consider complaints about
disciplinary proceedings or the loss of good-time credit, which relate to the terms
and conditions of an inmate‘s imprisonment, by way of a writ of habeas corpus).


                                     12
      The United States Supreme Court, on the other hand, has held that an

inmate who challenges a disciplinary proceeding that resulted in the loss of good-

time credit, even when the inmate is seeking only speedier (rather than

immediate) release, is ―attacking the very duration of [his] physical confinement

itself.‖6 Thus, the U.S. Supreme Court would characterize Walp‘s habeas action

as challenging his confinement. I agree with the characterization of the U.S.

Supreme Court.

      Furthermore, although the court of criminal appeals would not grant

habeas relief in such cases, I agree with the majority‘s implicit holding that, for

purposes of classifying such an action as civil or criminal, that court would also

consider such an action as complaining about the inmate‘s confinement.

Although an inmate in such a situation would be challenging future rather than

current confinement, such a complaint cannot logically be classified as merely

challenging prison conditions. This is so even if the inmate challenges the loss of

good-time credit by way of attacking the prison‘s disciplinary proceedings that

resulted in the credit loss. In this case, Walp appears to have challenged his

continued confinement, and, therefore, he challenged the fact of his confinement.

      If the majority does not wish to go so far as to hold that a challenge to

prospective confinement is a criminal proceeding under Texas law, it could still

expressly hold that a challenge to the loss of good-time credit that would entitle


      6
       Preiser v. Rodriguez, 411 U.S. 475, 487–88, 93 S. Ct. 1827, 1835 (1973).


                                    13
the inmate to immediate release is a criminal proceeding. And because it was

not clear from the evidence that Walp did not seek immediate release, Williams

did not meet his burden to show that Walp‘s habeas action was a civil

proceeding.     But either way, this court should expressly state that Walp‘s

complaint about prison disciplinary procedures and the loss of good-time credit

was a challenge to his confinement.

      I also write to address Walp‘s second issue, in which he asserts that the

trial court erred by excluding his evidence. At the hearing on Williams‘s motion,

Walp opened his argument by stating, ―I would like to begin with introducing

Exhibit A,‖ his answers to Williams‘s interrogatories. He then described ten other

exhibits he had brought with him, all relating to whether his claims had merit.

Walp did not offer the documents to Williams for inspection or ask the court

reporter to mark them as exhibits. Near the end of the hearing, the following

exchange occurred:

              THE COURT: Anything further?

              [Attorney for Williams]: No, Your Honor.

              THE COURT: Okay.

              [Walp]: What about my exhibits?

              THE REPORTER: They were never admitted.

              [Walp]: Well, I need to admit them.

              THE COURT: Well, they weren‘t . . . offered.




                                      14
           [Walp]: So you‘re going to get me on a technical? I didn‘t
      know how to offer the evidence. I said I had some exhibits.

           THE COURT: You didn‘t make the offer to allow your
      opponent the opportunity to either object or not object to them.

            [Walp]: Well, I have no knowledge of—of those—I don‘t have
      no knowledge of—of the formality of doing that. I sat here and said I
      had some exhibits that I needed to enter and I read them off. Now
      you‘re going to deny my exhibits on a technicality?

             THE COURT: No, they were not offered.

      On remand, if Williams files another motion to declare Walp a vexatious

litigant, the trial court will be required to conduct a hearing before ruling on the

motion.7 If Walp is present at that hearing,8 he will almost certainly attempt, once

again, to offer evidence to rebut Williams‘s arguments that there is no reasonable

probability that he would prevail on his claims. Walp‘s ignorance of the usual

procedures that attorneys use for offering evidence will likely result in frustration

from all sides, and, if the outcome of the hearing is unfavorable to him, an appeal

raising this same issue. Judicial economy therefore suggests that we should

address this sure-to-be-raised-again issue now rather than spend further judicial

resources addressing it later.     Furthermore, Walp‘s ignorance of evidentiary

procedure will divert the trial court‘s and the parties‘ attentions away from where

      7
       See Tex. Civ. Prac. & Rem. Code Ann. § 11.053 (Vernon 2002) (requiring
a hearing before ruling on a motion to declare a party a vexatious litigant).
      8
       See Garrett v. Macha, No. 02-09-443-CV, 2010 WL 3432826, at *3 (Tex.
App.—Fort Worth Aug. 31, 2010, no pet.) (mem. op.) (noting that an inmate does
not have an absolute right to be present at a hearing on a motion to declare him
a vexatious litigant).


                                     15
it belongs—on the merits—and focus it on arguments about what magic words a

party must use to have the trial court consider the admissibility of evidence. In

the interest of judicial economy, and to eliminate one unnecessary ground for

contention on remand, I note that generally, a party wishing to place a document

into evidence should produce the document and in some way signify that he is

offering it into evidence, allow the opposing party to inspect the evidence and

make any objections to its admission, have the evidence marked as an exhibit by

the court reporter, and hand it to the trial judge. 9 Though helpful, there is no

need for a party wishing to place a document into evidence to specifically use the

word ―offer.‖10

      Because I agree with the majority‘s holding, I respectfully concur.




                                                   LEE ANN DAUPHINOT
                                                   JUSTICE

DELIVERED: December 16, 2010




      9
       See Guetersloh v. C. I. T. Corp., 451 S.W.2d 759, 760 (Tex. Civ. App.—
Amarillo 1970, writ ref‘d n.r.e.).
      10
          Id.


                                    16
