                                                                                       ACCEPTED
                                                                                   03-15-00405-CV
                                                                                           8231515
                                                                        THIRD COURT OF APPEALS
                                                                                   AUSTIN, TEXAS
                                                                             12/14/2015 4:52:27 PM
                                                                                 JEFFREY D. KYLE
                                                                                            CLERK
                         No. 03-15-00405-CV

                        In the Court of Appeals        FILED IN
                                                3rd COURT OF APPEALS
                    for the Third District of Texas  AUSTIN, TEXAS
                            At Austin, Texas    12/14/2015 4:52:27 PM
                                                    JEFFREY D. KYLE
             ___________________________________         Clerk


                         DARRELL J. HARPER,
                             Appellant,

                                   v.

                     THE STATE OF TEXAS,
                          Appellees.
            ____________________________________

           On Direct Appeal from the 98th Judicial District
                   Court of Travis County, Texas
             Trial Court Cause No. D-1-GN-14004224
            ____________________________________

              APPELLEE THE STATE OF TEXAS’ BRIEF

            ____________________________________

KEN PAXTON                                 DANIEL C. NEUHOFF*
Attorney General of Texas                  Assistant Attorney General

CHARLES E. ROY                             OFFICE OF THE ATTORNEY
First Assistant Attorney General           GENERAL
                                           P.O. Box 12548
JAMES E. DAVIS                             Austin, Texas 78711-2548
Deputy Attorney General                    Tel: (512) 463-2080
for Civil Litigation                       Fax: (512) 936-2109

KAREN D. MATLOCK                           Counsel for Appellee
Chief, Law Enforcement                     *Attorney-In-Charge
Defense Division
                                          TABLE OF CONTENTS



STATEMENT OF THE CASE .................................................................................. 1

STATEMENT REGARDING ORAL ARGUMENT ............................................... 2

ISSUES PRESENTED...............................................................................................3

STATEMENT OF FACTS ........................................................................................4

SUMMARY OF THE ARGUMENT ........................................................................ 5

ARGUMENT .............................................................................................................6

         A. Standard of Review ....................................................................................6
         B. Harper is a Vexatious Litigant.................................................................... 6
               1. Criteria for Finding a Litigant Vexatious......................................... 7
               2. The Trial Court did not Abuse its Discretion when it found there
                  was no Reasonable Probability that Harper will Prevail in the
                  Current Litigation. ............................................................................8
               3. The Trial Court did not abuse its discretion when it Found Harper
                  Exceeded the Litigation Requirements of Chapter 11. .................. 10
               4. The Trial Court did not Abuse its Discretion when it Dismissed
                  Harper’s Claims after he failed to furnish the security. ................ 11

PRAYER ..................................................................................................................12

NOTICE OF ELECTRONIC FILING .....................................................................14

CERTIFICATE OF SERVICE ................................................................................14

CERTIFICATE OF COMPLIANCE .......................................................................15
                                         TABLE OF AUTHORITIES

Cases

BMC Software Belg. N.V. v. Marchand, 83 S.W.3d 789, 801 (Tex. 2002) ...............6

Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998)). ..............................................6

City of Hempstead v. Kmiec, 902 S.W.2d 118, 122 (Tex. App.—Houston [1st Dist.]

  1995, no writ) ..........................................................................................................9

City of LaPorte v. Barfield, 898 S.W.2d 288, 291 (Tex. 1995).................................8

Cronen v. Ray, 2006 WL 2547989, at *4 (Tex. App.—Houston [14th Dist.] 2006,

  pet. Denied)(mem. op.) ...........................................................................................9

Dep’t of Agric. & Env’t v. Printing Indus. Ass’n of Tex., 600 S.W.2d 264 (Tex.

  1980) .......................................................................................................................8

Douglas v. American Title Co., 196 S.W.3d 876, 879 (Tex. App.—Houston [1st

  Dist.] 2006, no pet.) ................................................................................................6

Harris v. Rose, 204 S.W.3d 903, 905 (Tex. App.—Dallas 2006, no pet.) ..........6, 10

Lowe v. Texas Tech. Univ., 540 S.W.2d 297, 298-99 (Tex. 1976) ........................8, 9

Nebout v. City of Hitchcock, 71 F. Supp. 2d 702, 707 (S.D. Tex. 1999) ..................8

Univ. of Texas Med. Branch v. York, 871 S.W.2d 175, 177 (Tex. 1994) ..............8, 9




                                                              ii
Statutes

TEX. CIV. PRAC. & REM. CODE § 11.051................................................................6, 7

TEX. CIV. PRAC. & REM. CODE § 11.052....................................................................7

TEX. CIV. PRAC. & REM. CODE § 11.054......................................................... 7, 8, 11

TEX. CIV. PRAC. & REM. CODE § 11.055....................................................................7

TEX. CIV. PRAC. & REM. CODE § 11.056....................................................................7

TEX. CIV. PRAC. & REM. CODE § 11.057..................................................................12

TEX. CIV. PRAC. & REM. CODE § 11.101....................................................................7

TEX. CIV. PRAC. & REM. CODE § 11.102....................................................................7

TEX. CIV. PRAC. & REM. CODE § 101.021..................................................................9

TEX. CIV. PRAC. & REM. CODE § 101.022..................................................................9

TEX. CIV. PRAC. & REM. CODE § 101.057..................................................................9




                                                   iii
                          STATEMENT OF THE CASE

      On October 13, 2014, Plaintiff-Appellant Darrell J. Harper (“Harper”), an

offender currently incarcerated in the Texas Department of Criminal Justice

(“TDCJ”) Ellis Unit, filed suit for damages in the amount of $3,000,000 against the

State of Texas for harassment, entrapment, false incarceration, false arrest and

malicious prosecution. C.R. at 4-5. On November 18, 2014, Texas filed its motion

to have Harper declared a vexatious litigant under Chapter 11 of the Texas Civil

Practice and Remedies Code. C.R. at 19.

      On January 20, 2015, the district court held a hearing and granted Texas’

motion to have Harper declared a vexatious litigant and ordered him to furnish

security in the amount of $2500 by March 2, 2015. C.R. at 86. Harper failed to

furnish the required security on time. On May 29, 2015, the district court entered its

Final Judgment that Harper was determined to be vexatious and failed to furnish the

required security and dismissed his case as to all claims and Defendants. C.R. at 254.




                                          1
              STATEMENT REGARDING ORAL ARGUMENT

      The defendant-appellee, the State of Texas, does not request oral argument
before the Court.




                                       2
                                ISSUES PRESENTED

Whether the district court abused its discretion when it concluded that Harper is a
vexatious litigant when, within the past seven years, he commenced, prosecuted, or
maintained at least nine litigations as a pro se litigant, not in small claims court, that
were finally determined adversely to him?

Whether the district court abused its discretion when it concluded that Harper is a
vexatious litigant when there is not a reasonable probability that he would prevail in
the current litigation against the defendant?




                                            3
                            STATEMENT OF FACTS

      Harper was incarcerated for the offense of terroristic threat. C.R. 4-5 & 19.

Since Mar. 1, 2011, Mr. Harper has commenced, prosecuted or maintained 12

separate civil lawsuits. Nine of these cases have been finally determined adversely

to Mr. Harper.

      On Aug. 20, 2012, Harper v. State of Texas, No. D-1-GN-11-000623, was

dismissed for want of prosecution. C.R. 31. On Dec. 19, 2012, Harper v. State of

Texas, No. D-1-GN-12-002702, was dismissed with prejudice. C.R. 34. On Oct. 8,

2013, Harper v. State of Texas, et al., No. D-1-GN-12-003417, was dismissed with

prejudice. C.R. 36-37. On Aug. 8, 2014, Harper v. State of Texas, et al., No. D-1-

GN-12-003624, was dismissed for want of prosecution. C.R. 45. On Aug. 8, 2014,

Harper v. Grizzard, No. D-1-GN-12-003656, was dismissed for want of prosecution.

C.R. 45. On Aug. 8, 2014, Harper v. City of Houston, No. D-1-GN-12-003735, was

dismissed for want of prosecution. C.R. 45. On Aug. 8, 2014, Harper v. Knutson,

No. D-1-GN-12-003820, was dismissed for want of prosecution. C.R. 45. On Aug.

25, 2014, Harper v. City of Austin, No. D-1-GN-13-001126, was dismissed for want

of prosecution. C.R. 55. On Nov. 14, 2014, Harper v. Tex. Comm’n on Jail

Standards, No. D-1-GN-14-001263, was dismissed without prejudice pursuant to

Chapter 14 of the Texas Civil Practice and Remedies Code. C.R. 59.

      A total of nine cases have been determined adversely to Harper.

                                        4
                        SUMMARY OF THE ARGUMENT

      The trial court did not abuse its discretion because Harper is a vexatious

litigant and was properly dismissed by the district court after he failed to furnish

security. Harper’s claims have no reasonable probability to prevail because he

cannot overcome the State of Texas’ entitlement to sovereign immunity.

Furthermore, Harper exceeds the requisite number of filings in the past seven years

to qualify as a vexatious litigant.




                                         5
                                    ARGUMENT

A.    Standard of Review.

      A trial court’s determination that a Plaintiff is a vexatious litigant is reviewed

under an abuse of discretion standard. Harris v. Rose, 204 S.W.3d 903, 905 (Tex.

App.—Dallas 2006, no pet.); Douglas v. American Title Co., 196 S.W.3d 876, 879

(Tex. App.—Houston [1st Dist.] 2006, no pet.). The Court can only find an abuse of

discretion if the trial court “acts in an arbitrary or capricious manner without

reference to any guiding rules or principles.” Harris, 204 S.W.3d at 905 (quoting

Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998)). “The court’s decision must be

‘so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.’”

Id. (quoting BMC Software Belg. N.V. v. Marchand, 83 S.W.3d 789, 801 (Tex.

2002)). Thus the Court must apply these principles when determining whether the

trial court’s application of the vexatious litigant statute constitutes an abuse of

discretion.

B.    Harper is a Vexatious Litigant.

      The trial court found Harper to be a vexatious litigant and ordered him to

furnish security in the amount of $2500 by March 2, 2015 to proceed in the case.

C.R. 86. Chapter 11 provides that a defendant may move the court for an order

determining that a plaintiff is vexatious and requiring the plaintiff to furnish security

for the defendant’s benefit to proceed with his case. TEX. CIV. PRAC. & REM. CODE

                                           6
§ 11.051. On the filing of a motion under § 11.051, the litigation is stayed until after

the motion’s disposition. TEX. CIV. PRAC. & REM. CODE § 11.052. If, after hearing

the evidence on the motion, the Court grants the motion, it “shall order the plaintiff

to furnish security for the benefit of the moving defendant” to be paid by a date

determined by the Court. TEX. CIV. PRAC. & REM. CODE § 11.055. If the plaintiff

fails to pay the security within the court’s deadline, the court shall dismiss the

litigation. TEX. CIV. PRAC. & REM. CODE § 11.056 (emphasis added). The word

“shall” shows that this is not discretionary. This is a mandatory requirement.

      Additionally, a court may, sua sponte or on any party’s motion, issue an order

prohibiting a person from filing additional pro se litigation in Texas unless the

person first obtains permission to sue from a local administrative judge. TEX. CIV.

PRAC. & REM. CODE § 11.101. The administrative judge screens subsequent

litigations to ensure each: (1) has merit; and (2) was not filed for harassment or delay.

TEX. CIV. PRAC. & REM. CODE § 11.102. The administrative judge has discretion

regarding whether to require the furnishing of security for the defendant’s benefit.

TEX. CIV. PRAC. & REM. CODE § 11.102(e).

1. Criteria for Finding a Litigant Vexatious

      Under section 11.054, a court may find a plaintiff a vexatious litigant if the

defendant shows there is no reasonable probability the plaintiff will prevail in the

litigation against the defendant, and that the plaintiff, in the seven preceding years,

                                           7
“has commenced, prosecuted, or maintained [pro se] at least five litigations other

than in a small claims court” that were: (1) finally determined against him; (2) are

permitted to remain pending at least two years without having been brought to trial;

or (3) “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 §

11.054(1). The claims may be filed in either state or federal court.

2. The Trial Court did not Abuse its Discretion when it found there was no
   Reasonable Probability that Harper will Prevail in the Current Litigation.

      The trial court did not abuse its discretion when it found that Harper failed to

overcome the State of Texas’s protection from suit by sovereign immunity. It is well

settled that sovereign immunity precludes suit against the State unless the

Legislature creates a waiver through “clear and unambiguous language.” See City of

LaPorte v. Barfield, 898 S.W.2d 288, 291 (Tex. 1995); Dep’t of Agric. & Env’t v.

Printing Indus. Ass’n of Tex., 600 S.W.2d 264 (Tex. 1980). The State of Texas

cannot be held liable for causes of action brought under Texas common law unless

the Texas Legislature has expressly waived governmental immunity. Nebout v. City

of Hitchcock, 71 F. Supp. 2d 702, 707 (S.D. Tex. 1999)(holding that a Texas

municipality cannot be held liable for causes of action brought under Texas common

law unless the legislature has expressly waived governmental immunity)(citing

Univ. of Texas Med. Branch v. York, 871 S.W.2d 175, 177 (Tex. 1994)). “This

immunity has only been waived as to claims brought pursuant to the Texas Tort
                                          8
Claims Act.” Id. (citing Lowe v. Texas Tech. Univ., 540 S.W.2d 297, 298-99 (Tex.

1976)). The Texas Tort Claims Act (TTCA) creates a limited waiver of sovereign

immunity for certain damages: (1) arising from the operation of a motor-driven

vehicle or motor-driven equipment; (2) those caused by a condition or use of tangible

personal or real property; or (3) certain claims arising from premises defects. TEX.

CIV. PRAC. & REM. CODE § 101.021 & 101.022.

      However, the TTCA’s waiver of sovereign immunity does not apply to a claim

“arising out of assault, battery, false imprisonment, or any other intentional tort.”

TEX. CIV. PRAC. & REM. CODE § 101.057. This is an express non-waiver of sovereign

immunity. False arrest, malicious prosecution and false imprisonment are intentional

torts and the Tort Claims Act does not waive immunity for intentional torts. City of

Hempstead v. Kmiec, 902 S.W.2d 118, 122 (Tex. App.—Houston [1st Dist.] 1995,

no writ)(Holding plaintiff’s claims fail because most of plaintiff’s allegations are for

intentional torts—false arrest, malicious prosecution, defamation and the Tort

Claims Act does not waive immunity for intentional torts); Cronen v. Ray, 2006 WL

2547989, at *4 (Tex. App.—Houston [14th Dist.] 2006, pet. Denied)(mem.

op.)(Holding that appellant sued appellees for false arrest and false imprisonment.

These constitute intentional torts and therefore are barred.).

      Harper sued the state of Texas for harassment, entrapment, false incarceration

(imprisonment), false arrest, and malicious prosecution. Accordingly, Harper’s

                                           9
claims against the State of Texas for malicious prosecution, false arrest and false

imprisonment are barred insofar as they are intentional torts and the State of Texas

does not waive sovereign immunity for intentional torts. The trial court did not abuse

its discretion by ruling so.

      Harper’s claims that the State of Texas is liable for harassment and entrapment

are not covered by the Tort Claims Act’s limited waiver of immunity. Harassment

and entrapment do not fall into one of the three claims giving rise to the limited

waiver of sovereign immunity. They do not arise from the operation or use of a motor

vehicle. They are not caused by a condition or use of tangible personal or real

property. Finally, they are not claims that arise from a premises defect. Harper’s

claims against the State of Texas for harassment and entrapment are barred by the

doctrine of sovereign immunity, as the trial court correctly found. The trial court

referred to these rules and guidelines when making its determination that Harper had

not reasonable probability of success in this litigation. The trial court did not act “in

an arbitrary or capricious manner without reference to any guiding rules or

principles.” Harris, 204 S.W.3d at 905. To the contrary, the trial court followed both

Chapter 11 and Chapter 101 of the Texas Civil Practice and Remedies Code as well

as relevant case law in making its determination.

3. The Trial Court did not abuse its discretion when it Found Harper Exceeded
   the Litigation Requirements of Chapter 11.


                                           10
      The trial court found that, within the seven years before the State of Texas

filed its motion to declare Harper a vexatious litigant, Harper filed at least nine

litigations, not in small claims court that meet the criteria of Chapter 11. Harper only

needed to commence, prosecute, or maintain five litigations as a pro se litigant other

than in a small claims court that were finally determined adversely to him. TEX. CIV.

PRAC. & REM. CODE. §11.054(1)(A). All of Mr. Harper’s nine previous litigations

were dismissed and, as such, were determined adversely to Mr. Harper. C.R. 31, 34,

36-37, 45, 55, & 59. In order to be determined a vexatious litigant, Mr. Harper need

only have filed five such claims in the past seven years, which criteria he has

exceeded. See Supra Appellee’s Brief at 4. Accordingly, the trial court determined

Harper qualifies as a vexatious litigant under section 11.054(1).

    The State of Texas sent a notice of hearing and an amended notice of hearing to

Harper, informing him that a hearing on the motion to declare him vexatious would

be held at 2:00 p.m. on Tuesday, January 20, 2014. C.R. 61-62, 68-69. The trial court

also sent a letter informing the warden at Harper’s unit of assignment to make Harper

available to appear at the hearing by phone on the date of the hearing. C.R. 80. The

trial court held the hearing and declared Harper to a vexatious litigant pursuant to

section 11.054 of the Texas Civil Practice and Remedies Code and ordered him to

furnish security of $2500 by March 2, 2015. This was not an abuse of discretion.

4. The Trial Court did not Abuse its Discretion when it Dismissed Harper’s
   Claims after he failed to furnish the security.
                                          11
      The trial court did not abuse its discretion when, pursuant to section 11.057

of the Texas Civil Practice and Remedies Code they dismissed Harper’s litigation

after he failed to furnish security by March 2, 2015. “The Court shall dismiss a

litigation as to a moving defendant if a plaintiff ordered to furnish security does not

furnish the security within the time set by the order.” Tex. Civ. Prac. & Rem. Code

§ 11.057. This is not discretionary. If a plaintiff does not furnish the security the case

will be dismissed. On May 29, 2015, more than two months after the court required

Harper to furnish security and he did not do so, the court dismissed his case. C.R.

254. The trial court did not abuse its discretion when it dismissed Harper’s case

because it did not have discretion to do so, the outcome was statutorily mandated.

                                       PRAYER

      Defendant State of Texas requests the Court affirm the decision of the court

below in declaring Harper to be a vexatious litigant and dismissing his case when he

failed to furnish the required security.

      Date: December 14, 2015


                                           Respectfully submitted,



                                           KEN PAXTON
                                           Attorney General of Texas

                                           CHARLES E. ROY
                                           First Assistant Attorney General
                                             12
JAMES E. DAVIS
Deputy Attorney General for Civil Litigation

KAREN D. MATLOCK
Assistant Attorney General
Chief, Law Enforcement Defense Division


/s/ Daniel C. Neuhoff
DANIEL C. NEUHOFF
Assistant Attorney General
Attorney-in-Charge
Texas Bar No. 24088123

Law Enforcement Defense Division
P. O. Box 12548, Capitol Station
Austin TX 78711
(512) 463-2080/Fax (512) 936-2109
daniel.neuhoff@texasattorneygeneral.gov

ATTORNEYS FOR APPELLEE STATE
OF TEXAS




  13
                      NOTICE OF ELECTRONIC FILING

      I, DANIEL C. NEUHOFF, Assistant Attorney General of Texas, do hereby
certify that I have electronically submitted for filing, a true and correct copy of the
above and foregoing Brief in accordance with the electronic filing system for the
Third Court of Appeals on this the 14th day of December, 2015.


                                        /s/ Daniel C. Neuhoff
                                        DANIEL C. NEUHOFF
                                        Assistant Attorney General




                          CERTIFICATE OF SERVICE

      I, DANIEL C. NEUHOFF, Assistant Attorney General of Texas, certify that
a true and correct copy of the above and foregoing APELLEE’S BRIEF has been
served by placing it in the United States Mail, postage prepaid, on December 14,
2015, addressed to:
Darrell J. Harper, No.1957729
TDCJ - Ellis Unit
1697 FM 980
Huntsville, TX 77343
Plaintiff Pro Se

                                        /s/ Daniel C. Neuhoff
                                        DANIEL C. NEUHOFF
                                        Assistant Attorney General




                                          14
                     CERTIFICATE OF COMPLIANCE

Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), the undersigned certifies
this brief complies with the type-volume limitations of Texas Rule of Appellate
Procedure 9.4.

1.     Exclusive of the exempted portions in Texas Rule of Appellate Procedure
9.4(i)(1, this brief contains 2,046 words, including headings and footnotes.

2.   This brief has been prepared in proportionally spaced typeface using:
Microsoft Word 2010 in Times New Roman, size 14 for text.

3.     The undersigned understands a material misrepresentation in completing this
certificate, or circumvention of the type-volume limits in Texas Rule of Appellate
Procedure 9.4 may result in the court’s striking the brief and imposing sanctions
against the person signing the brief.


                                     /s/ Daniel C. Neuhoff
                                     DANIEL C. NEUHOFF
                                     Assistant Attorney General




                                       15
             No. 03-15-00405-CV

             In the Court of Appeals
         for the Third District of Texas
                 At Austin, Texas

  ___________________________________

             DARRELL J. HARPER,
                 Appellant,

                       v.

          THE STATE OF TEXAS,
               Appellees.
 ____________________________________

On Direct Appeal from the 98th Judicial District
        Court of Travis County, Texas
  Trial Court Cause No. D-1-GN-14004224
 ____________________________________

   APPELLEE THE STATE OF TEXAS’ BRIEF

 ____________________________________
                      APPENDIX
                  TABLE OF CONTENTS

Exhibit A   Order dated Jan. 20, 2015

Exhibit B   Final Judgment dated May 29, 2015

Exhibit C   Tx. Civ. Prac. & Rem. §11.051

Exhibit D   Tx. Civ. Prac. & Rem. §11.052

Exhibit E   Tx. Civ. Prac. & Rem. §11.054

Exhibit F   Tx. Civ. Prac. & Rem. §11.055

Exhibit G   Tx. Civ. Prac. & Rem. §11.056

Exhibit H   Tx. Civ. Prac. & Rem. §11.057

Exhibit I   Tx. Civ. Prac. & Rem. §11.101

Exhibit J   Tx. Civ. Prac. & Rem. §11.102

Exhibit K   Tx. Civ. Prac. & Rem. §101.021

Exhibit L   Tx. Civ. Prac. & Rem. §101.022

Exhibit M   Tx. Civ. Prac. & Rem. §101.057




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