                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                   No. 07-13-00184-CV


                        REIDIE JAMES JACKSON, APPELLANT

                                            V.

                           DAVID ELLIS, ET AL, APPELLEES

                          On Appeal from the 251st District Court
                                   Potter County, Texas
                Trial Court No. 101260-C, Honorable Ana Estevez, Presiding

                                      June 4, 2015

                            MEMORANDUM OPINION
                Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


      Appellant Reidie Jackson, a prison inmate appearing pro se and in forma

pauperis, sued appellees, Texas Department of Criminal Justice employees David Ellis

and Andrew Gratz, individually.       Jackson’s pleadings alleged deprivation of his

constitutional rights and asserted claims under 42 U.S.C. §§ 1983, 1985(3), and 1986.

On the defendants’ motion, the trial court found Jackson to be a vexatious litigant,

ordered him to deposit security of $150, and entered a pre-filing order. When Jackson

did not post security within the period required, the court dismissed his suit. This appeal
followed. We find Ellis and Gratz failed to prove Jackson is a vexatious litigant, and will

reverse the judgment of the trial court and remand the case for further proceedings.


                                        Background


         We recite the facts alleged in Jackson’s petition. The petition alleges that early

one January morning Ellis placed Jackson in handcuffs before a period of recreation.

Because of bad weather, Jackson told Ellis recreation should be held in the dayroom.

But Ellis insisted it would be conducted outdoors. When Ellis’s superior, a sergeant,

agreed with Jackson, Ellis became angry.


         At the sergeant’s instruction, Ellis escorted Jackson back to his cell while the

sergeant contacted a lieutenant. Jackson’s handcuffs were “extremely” loose and he

removed them.


         Once the sergeant was gone, Ellis came to Jackson’s cell door and through the

food tray slot asked for the handcuffs.       Before Jackson could pick them up, Ellis

“rammed the metal trayslot (sic) bar into the back of [Jackson’s] head and forced his

head into the wall and it sent horrible pain/shock through [Jackson’s] entire spine and

body.”    The event left Jackson “dazed” with swelling to the back of his head and

forehead.


         Ellis then sprayed Jackson with a chemical “directly in his face, mouth, ear, and

genital area,” causing Jackson “extreme burning pain which lasted almost three days.”

Gratz, a sergeant, arrived and ordered Jackson moved to another cell, where the

plumbing was disabled. There Jackson remained for parts of three days without water,

a blanket, a mattress, sheets, soap, or clothing.

                                              2
       Jackson alleged the conduct of Ellis and Gratz amounted to cruel and unusual

punishment in violation of the Eighth Amendment. He also alleged violations of due

process, equal protection, and the Fourth Amendment.             According to Jackson’s

pleadings, Ellis “did intentionally and knowingly use unnecessary/excessive force

against [Jackson] with a sadistic and malicious intent. . . . Ellis did intentionally and

knowingly, by act or omission, cause unnecessary and wanton infliction of pain and

suffering upon [Jackson].” As for Gratz, Jackson alleged he “intentionally, knowingly

andor (sic) acted with deliberate indifference to [Jackson’s] future health and safety

when he denied [Jackson] the minimal civilized measure of life’s necessities by

personally having [Jackson’s] cell water turned off, refusing him a mattress, sheets or

any property for several days although [Jackson] was not on property restrictions. This

inability to wash caused [Jackson]” injury. As noted, Jackson alleged the constitutional

deprivations under 42 U.S.C. §§ 1983, 1985 (conspiracy to interfere with civil rights),

and 1986 (action for neglect to prevent conspiracy).


       Under Civil Practice and Remedies Code Chapter 111 Ellis and Gratz sought an

order finding Jackson to be a vexatious litigant, imposing a security obligation, and

mandating a prefiling requirement. Ellis and Gratz also moved for an order dismissing

Jackson’s suit under Civil Practice and Remedies Code Chapter 142 because Jackson

did not exhaust administrative remedies, his declaration of prior lawsuits did not list all

of his cases, and his claims were frivolous or malicious.



       1
           TEX. CIV. PRAC. & REM. CODE ANN. §§ 11.001-.104 (West 2002 & Supp. 2014).
       2
           TEX. CIV. PRAC. & REM. CODE ANN. §§ 14.001-.014 (West 2002 & Supp. 2014).


                                             3
        The trial court conducted a hearing on the two motions. Jackson appeared by

telephone. The parties argued their respective positions but no evidence was received.

On oral motion, the court granted Jackson ten days to file an amended declaration of

prior litigation.3


        After listening to the arguments, the court found Jackson to be a vexatious

litigant and ordered he deposit security of $150 within thirty days on peril of dismissal for

noncompliance. It also rendered a prefiling order requiring that prior to filing any new

civil action pro se, Jackson obtain the prior permission of the local administrative judge.

These findings were reduced to a signed written order. No order was made on the

appellees’ Chapter 14 motion. More than thirty days later the court signed an order

dismissing Jackson’s case for failing to provide the security ordered.


                                          Analysis


        In his third issue, Jackson challenges the trial court’s implicit finding that

appellees showed there is a reasonable probability he would not prevail in his case

against them.


        We apply the abuse of discretion standard when reviewing a trial court’s

determinations under Chapter 11. Devoll v. State, 155 S.W.3d 498, 502 (Tex. App.—

San Antonio 2004, no pet.). The test for an abuse of discretion is whether the court

acted arbitrarily or unreasonably and without reference to any guiding rules and




        3
        During the hearing, counsel for appellees announced they were not making an
exhaustion of remedies argument at that time because additional time was needed to
review Jackson’s unsworn declaration of grievances, file-marked the previous day.

                                             4
principles.   Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.

1985).


         Chapter 11 attempts to balance the right of access to the courts and the public

interest in protecting defendants from vexatious litigants.           Leonard v. Abbott, 171

S.W.3d 451, 457 (Tex. App.—Austin 2005, pet. denied). Vexatious litigants are persons

who abuse the legal system by filing numerous, frivolous lawsuits. Drake v. Andrews,

294 S.W.3d 370, 373 (Tex. App.—Dallas 2009, pet. denied). Under Chapter 11 a trial

court may place limitations on the litigation activities of a person the court determines is

a vexatious litigant. Leonard, 171 S.W.3d at 457.


         A vexatious litigant determination requires the defendant to demonstrate that

there is not a reasonable probability the plaintiff will prevail in the litigation against the

defendant and that the plaintiff, in the preceding seven-year period, commenced,

prosecuted, or maintained as a pro se litigant at least five litigations, other than in small

claims court, that were finally determined adversely to the plaintiff. TEX. CIV. PRAC. &

REM. CODE ANN. § 11.054 (West Supp. 2014); Leonard, 171 S.W.3d at 457. It is the

defendant’s burden to prove both requirements of section 11.054. Amir-Sharif v. Quick

Trip Corp., 416 S.W.3d 914, 919 (Tex. App.—Dallas 2013, no pet.) (noting also that a

defendant who fails to offer any evidence showing why the plaintiff could not prevail on

his suit has failed to meet its burden); Drake, 294 S.W.3d at 375.


         Should the court find from evidence presented by the defendant at the hearing

that the plaintiff is a vexatious litigant, it must order the plaintiff to furnish security for the

benefit of the moving defendant in an amount related to the costs and attorneys’ fees



                                                5
the defendant anticipates incurring in defending the litigation. See TEX. CIV. PRAC. &

REM. CODE ANN. § 11.055(a) (West 2002); Leonard, 171 S.W.3d at 456. If the plaintiff

fails to furnish security within the time the trial court orders, the court “shall dismiss a

litigation as to a moving defendant.” TEX. CIV. PRAC. & REM. CODE ANN. § 11.056 (West

2002); Leonard, 171 S.W.3d at 456.


       Application


       Ellis and Gratz offered no evidence showing there was not a reasonable

probability Jackson would prevail in his suit against them. To their motion to declare

Jackson a vexatious litigant they attached no supporting affidavits 4 and only argument

was presented at the June 26 hearing.5


       On appeal, appellees instead ground their argument responding to Jackson’s

third issue on his alleged inability to “cure the procedural defects in his pleadings” and

comply with Chapter 14’s affidavit of prior litigation requirement. TEX. CIV. PRAC. & REM.

CODE § 14.004 (West Supp. 2014).6 Hence, appellees reason, even a meritorious claim


       4
        Cf. Leonard, 171 S.W.3d at 459 where the court, without comment, notes
defendants attached certified copies of pleadings and orders relied on to prove the
second requirement of section 11.054.
       5
         Yet, citing Leonard, 171 S.W.3d at 459, appellees explain in their brief a
reviewing court should consider the legal and factual sufficiency of the evidence
supporting the trial court’s express and implicit findings.
       6
           In part, this section provides:

       An inmate who files an affidavit or unsworn declaration of inability to pay
       costs shall file a separate affidavit or declaration: (1) identifying each
       action, other than an action under the Family Code, 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 action

                                             6
might be adjudged to lack a reasonable probability of success under section 11.054

because of such shortcomings. They support the proposition with Drum v. Calhoun,

299 S.W.3d 360, 368 (Tex. App.—Dallas 2009, pet. denied). But there the court found

the plaintiff was unlikely to prevail because he was collaterally estopped from relitigating

his claims.     Id. at 369.   Assuming, but without deciding, Jackson’s Chapter 14

declaration of prior litigation before the court at the June 26 hearing did not meet all the

requirements of section 14.004, this fact could not support the court’s implicit finding of

a reasonable probability that Jackson would not prevail, since the court granted Jackson

an additional ten days from the hearing date to file a complete declaration. Jackson

filed an amended declaration, the sufficiency of which was never determined by the trial

court.


         Without evidence showing there is not a reasonable probability that Jackson will

prevail in his lawsuit, it was an abuse of discretion for the trial court to find him a

vexatious litigant, order security, and make a prefiling order. It was therefore also an




____________________
     was brought; and (2) describing each action 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 action was
     brought; (C) identifying each party named in the action; and (D) stating the
     result of the action, including whether the action or a claim that was a
     basis for the action was dismissed as frivolous or malicious under Section
     13.001 or Section 14.003 or otherwise.

TEX. CIV. PRAC. & REM. CODE ANN. § 14.004(a) (West Supp. 2014).


                                             7
abuse of discretion to dismiss Jackson’s cause for failing to post the security required

by the June 26 order.7


      We sustain Jackson’s third issue.         Discussion of Jackson’s first and second

issues is unnecessary to the disposition of this appeal. TEX. R. APP. P. 47.1.


                                       Conclusion


      We reverse the order of the trial court and remand the case for further

proceedings. See TEX. R. APP. P. 43.2(d). Jackson’s “motion to request permission to

add new evidence,” was filed in this court on December 22, 2014, and carried with the

case. It is now dismissed as moot. Finally, we direct our clerk to provide the Office of

Court Administration of the Texas Judicial System with a copy of this opinion and our

corresponding judgment. Cf. TEX. CIV. PRAC. & REM. CODE ANN. § 11.104(c) (West

Supp. 2014) (the current version of this statute, while inapplicable here because of the

date the underlying suit was commenced, provides a means for a person’s removal

from the state list of vexatious litigants subject to a prefiling order on reversal of the

underlying order by an appellate court).




                                                        James T. Campbell
                                                            Justice




      7
         We find only that appellees were not entitled to the relief ordered by the trial
court because they did not meet their burden of proof. We express no opinion on the
merits of Jackson’s case.

                                            8
