                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-06-00302-CV

RODNEY PAT RAMSEY,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee



                           From the 40th District Court
                               Ellis County, Texas
                              Trial Court No. 72606


                                    OPINION

      Rodney Pat Ramsey appeals from an order denying his petition for bill of review.

Ramsey contends in four issues: (1) the court abused its discretion by failing to conduct

a pretrial hearing to allow him to present prima facie proof of a meritorious ground for

appeal; (2) the court abused its discretion by summarily denying his petition for failure

to allege extrinsic fraud or official mistake without first conducting such a pretrial

hearing; (3) the court abused its discretion by finding that his petition “makes no

allegation of extrinsic fraud, error or mistake on the part of opposing party or of an
official court functionary”;1 (4) the court abused its discretion by making the quoted

finding regarding extrinsic fraud while also making an allegedly “conflicting” finding

that the petition “alleges an intrinsic mistake or error of opposing party or official court

functionary”; and (5) the facts of his case “require a new and even more liberal

protection” for similarly situated plaintiffs than is provided by current bill-of-review

jurisprudence. We will affirm.

                                             Background

        We begin with Ramsey’s prosecution in 2000 for abuse of official capacity.2

Following a plea bargain, the court placed Ramsey on deferred adjudication community

supervision for two years. After Ramsey’s term of community supervision expired, the

court signed an order discharging him from community supervision.

        Ramsey then filed a petition for nondisclosure of criminal information under

section 411.081(d) of the Government Code. See Act of May 31, 2003, 78th Leg., R.S., ch.

1236, § 4, 2003 Tex. Gen. Laws 3499, 3500 (amended 2005) (current version at TEX. GOV’T

CODE ANN. § 411.081(d) (Vernon Supp. 2007)). This statute provides in pertinent part:

        After notice to the state and a hearing on whether the person is entitled to
        file the petition and issuance of the order is in the best interest of justice,
        the court shall issue an order prohibiting criminal justice agencies from
        disclosing to the public criminal history record information related to the
        offense giving rise to the deferred adjudication.



1
       Issues (2) and (3), as we have identified them, are both included within Issue No. 2 as presented
in Ramsey’s brief. Issues (4) and (5) as identified in this opinion thus refer to Issue Nos. 3 and 4 in
Ramsey’s brief.

2
       Abuse of official capacity is a misdemeanor offense within the jurisdiction of a district court. See
TEX. CODE CRIM. PROC. ANN. art. 4.05 (Vernon 2005) (district court has jurisdiction over “all
misdemeanors involving official misconduct”).


Ramsey v. State                                                                                     Page 2
Id.

       At the hearing on Ramsey’s petition, Ramsey contended that the court should be

able to determine the merits of the petition for nondisclosure from the pleadings alone

and that he did not intend to offer any evidence. The State countered that Ramsey

should be required to offer evidence to prove his entitlement to relief. The court took

judicial notice of the contents of the file relating to Ramsey’s prosecution. At the

conclusion of the hearing, the court told the parties that it would take the matter under

advisement and invited the parties to submit briefing.

       The State filed a letter brief arguing, among other things, that Ramsey must

present evidence to support his contention that nondisclosure would be in the best

interest of justice, that Ramsey had failed to do so, and that a review of the record in

Ramsey’s case demonstrates in any event that nondisclosure would not be in the best

interest of justice. Ramsey responded with an amended petition for nondisclosure and

a request for a second hearing to present evidence regarding this disputed issue.

       Nine days after Ramsey filed these pleadings, the court signed an order denying

the petition for nondisclosure. Ramsey did not file a motion for new trial or appeal.

       Ramsey filed his petition for bill of review about two years later. Ramsey alleges

in this petition:

       (1)        the court’s refusal to conduct a second hearing violated his right to
                  due process;

       (2)        he had a meritorious claim for an order of nondisclosure based on
                  the testimony of unnamed witnesses who could provide testimony
                  “relevant to the issue of the ‘best interest of justice’” but who were



Ramsey v. State                                                                            Page 3
                  prevented from testifying because of the court’s refusal to conduct
                  a second hearing;

       (3)        because notice of hearing was published in a local paper
                  identifying the proceeding as ”Ex parte Ramsey,” he mistakenly
                  believed that the State would not oppose his petition and thus did
                  not prepare to present evidence or call any witnesses;

       (4)        section 411.081(d) was a relatively new statute at the time of
                  hearing and it was unclear whether an evidentiary hearing was
                  required;

       (5)        the court’s reliance on the State’s letter brief, which he characterizes
                  as “information given by an official court functionary,” constitutes
                  an “official mistake” which resulted in the denial of his “right to
                  cross examine or challenge the information supporting the State’s
                  position”; and

       (6)        his failure to present evidence “was not due to any intentional act
                  of fault or the result of negligence.”

       In a supporting brief, Ramsey cited the Supreme Court’s decision in Petro-

Chemical Transport, Inc. v. Carroll, 514 S.W.2d 240, 245 (Tex. 1974), for the proposition

that, rather than establishing a meritorious claim or defense, he needed to establish only

a meritorious ground for appeal. To make a prima facie showing of the meritorious

ground for appeal, Ramsey argued that the court’s denial of his request for a second

hearing constituted such a meritorious ground because it was, among other things, a

violation of his right to due process.




Ramsey v. State                                                                              Page 4
        The court denied Ramsey’s petition without a hearing based on a finding that the

petition alleged only an “intrinsic mistake or error” and did not allege “extrinsic fraud,

error or mistake.”3

                                            Bill of Review

        A bill of review is an equitable proceeding to set aside a prior judgment which

can no longer be challenged by motion for new trial or appeal. Caldwell v. Barnes, 154

S.W.3d 93, 96 (Tex. 2004) (per curiam); Baker v. Goldsmith, 582 S.W.2d 404, 406 (Tex.

1979). The traditional elements for a bill of review are:

        (1)       a meritorious claim or defense with regard to the underlying cause
                  of action;

        (2)       which the bill-of-review plaintiff was prevented from making by
                  the fraud, accident or wrongful act of the opposing party or official
                  mistake;

        (3)       unmixed with any fault or negligence on the part of the bill-of-
                  review plaintiff.

Caldwell, 154 S.W.3d at 96; Baker, 582 S.W.2d at 406-07; Davis v. Smith, 227 S.W.3d 299,

302 (Tex. App.—Houston [1st Dist.] 2007, no pet.); Nelson v. Williams, 135 S.W.3d 202,

205 (Tex. App.—Waco 2004, pet. denied).

        The elements vary somewhat depending on whether the bill-of-review plaintiff

actually participated in the underlying litigation. See Roger S. Braugh, Jr. & Paul C.

Sewell, Equitable Bill of Review: Unraveling the Cause of Action That Confounds Texas

Courts, 48 BAYLOR L. REV. 623, 645-60 (1996). The traditional elements apply as stated

3
       The trial court’s order is entitled “Order Denying Hearing on Petitioner for Bill of Review.”
Although this caption suggests that this is an order denying only a hearing, the court stated in the
concluding paragraph that it had “no authority to grant the relief requested.” Thus, the order effectively
denied Ramsey’s petition.


Ramsey v. State                                                                                    Page 5
above when the plaintiff did not participate in the trial of the underlying cause or for

some reason was prevented from presenting the alleged meritorious claim or defense

during the course of the trial.

       However, in Petro-Chemical, the Supreme Court approved the use of a bill of

review for a defendant who fully participated in a trial on the merits in the underlying

cause but did not file a motion for new trial or appeal because the district clerk failed to

give notice that the judgment had been signed. See Petro-Chemical, 514 S.W.2d at 245. In

lieu of establishing a meritorious claim or defense with regard to the underlying claim,

the Court held that a bill-of-review plaintiff in this scenario must establish “a

meritorious ground of appeal.” Id. (quoting Overton v. Blum, 50 Tex. 417, 426 (1878)); see

also San Patricio County v. Nueces County, 214 S.W.3d 536, 544 (Tex. App.—Corpus

Christi 2006, no pet.);4 Thompson v. Ballard, 149 S.W.3d 161, 164 (Tex. App.—Tyler 2004,

no pet.).

       Thus, when as here the bill-of-review plaintiff fully participated in the trial on

the merits, the elements for the claim are:

       (1)        a meritorious ground of appeal;

       (2)        which the bill-of-review plaintiff was prevented from making by
                  the fraud, accident or wrongful act of the opposing party or official
                  mistake;


4
         The Corpus Christi Court’s decision in San Patricio County v. Nueces County actually addressed
the merits of two separate appeals between the parties: cause no. 13-05-00022-CV and cause no. 13-05-
00075-CV. 214 S.W.3d 536, 541 (Tex. App.—Corpus Christi 2006, no pet.). The appeal docketed under the
former cause number concerned a tax suit filed by San Patricio County, while the appeal docketed under
the latter number concerned a bill of review filed by Nueces County. Id. at 541. No petition for review
was filed with the Supreme Court in the bill-of-review appeal, but a petition has been filed and remains
pending in the tax suit appeal.


Ramsey v. State                                                                                  Page 6
       (3)        unmixed with any fault or negligence on the part of the bill-of-
                  review plaintiff.

See San Patricio County, 214 S.W.3d at 544; Thompson, 149 S.W.3d at 164.

                                    Standards of Review

       As a general matter, we review a trial court’s ruling on a bill of review under an

abuse-of-discretion standard. See Davis, 227 S.W.3d at 302; San Patricio County, 214

S.W.3d at 544-45; Thompson v. Tex. Dep’t of Protective & Regulatory Servs., 123 S.W.3d 580,

582 (Tex. App.—El Paso 2003, pet. denied). However, the determination of whether a

bill-of-review plaintiff has made a prima facie showing of a meritorious claim or

defense (or of a meritorious ground for appeal) is a question of law. Baker, 582 S.W.2d

at 408-09; San Patricio County, 214 S.W.3d at 545; In re L.N.M., 182 S.W.3d 470, 474 (Tex.

App.—Dallas 2006, no pet.). Thus, we review this determination de novo. See Reliance

Nat’l Indem. Co. v. Advance’d Temporaries, Inc., 227 S.W.3d 46, 50 (Tex. 2007) (“Appellate

courts review legal determinations de novo”); San Patricio County, 214 S.W.3d at 545.

                                  Baker or Petro-Chemical?

       Ramsey contends in his fourth issue that the facts of his case “require a new and

even more liberal protection” for similarly situated plaintiffs than is provided by

current bill-of-review jurisprudence. Ramsey says that Baker and similar cases do not

apply because he did participate in the hearing on his petition for nondisclosure.

However, he also says that Petro-Chemical does not apply because he “was denied the

opportunity to fully present his case at the hearing.” We disagree with this latter

contention.



Ramsey v. State                                                                      Page 7
       The traditional Baker standard applies when the plaintiff did not participate in

the trial of the underlying cause (often suffering a default judgment or dismissal) or was

prevented from presenting a meritorious claim or defense during the course of the trial

because of the fraud, accident or wrongful act of the opposing party or because of

official mistake. See, e.g., Ross v. Nat’l Center for the Employment of the Disabled, 197

S.W.3d 795, 796-97 (Tex. 2006) (per curiam) (default judgment); King Ranch, Inc. v.

Chapman, 118 S.W.3d 742, 749 (Tex. 2003) (alleging 1883 agreed judgment was

erroneously rendered by a conspiracy between defendant and plaintiff’s counsel); Davis,

227 S.W.3d at 301 (dismissal for want of prosecution); Nelson, 135 S.W.3d at 204

(alleging attorney husband’s failure to disclose forthcoming settlement which would

yield fee in excess of $200 million and threats to render his law practice worthless if

wife sought an appraisal prevented wife from presenting meritorious claim).

       Conversely, the Petro-Chemical standard applies when the bill-of-review plaintiff

participated in the trial of the underlying suit but was prevented from filing a motion

for new trial or appeal because of the fraud, accident or wrongful act of the opposing

party or because of official mistake. See Petro-Chemical Transp., 514 S.W.2d at 245-46; San

Patricio County, 214 S.W.3d at 544; Thompson, 149 S.W.3d at 164.

       Here, the Baker line of cases does not apply because: (1) Ramsey participated in

the hearing on his petition for nondisclosure; and (2) he was not prevented from

presenting to the trial court the argument which serves as the basis for his bill of review

(namely, that section 411.081 requires an evidentiary hearing). That the trial court

rejected this argument does not mean that Ramsey was prevented from presenting it,


Ramsey v. State                                                                      Page 8
even assuming (which we do not) that the court erred by doing so. See McGlothing v.

Cactus Petroleum, Inc., 394 S.W.2d 955, 958 (Tex. Civ. App.—Waco 1965, writ ref’d n.r.e.)

(“judicial error is not ground for vacating a judgment by equitable bill of review”);

Metropolitan Life Ins. Co. v. Pribble, 130 S.W.2d 332, 338 (Tex. Civ. App.—Fort Worth

1939, writ ref’d) (“A court of equity will never set aside or enjoin a judgment on the

ground of error or mistake in the judgment of the court of law.”); Braugh & Sewell, 48

BAYLOR L. REV. at 637 n.87 (“Rendition of an improper judgment without more,

however, is not actionable as official error by bill of review.”).

         Instead, Petro-Chemical applies to Ramsey’s case. Ramsey took this position in his

Brief in Support of Bill of Review which he filed with the trial court, and we hold that

he was correct in doing so. Therefore, we overrule Ramsey’s fourth issue.

                             Necessity of Pretrial Baker Hearing

         Ramsey contends in his first issue that the court abused its discretion by failing

to conduct a pretrial hearing under Baker to allow him to present prima facie proof of a

meritorious ground for appeal. His contention arises from the following excerpt from

Baker:

                 First, in order to invoke the equitable powers of the court, the bill of
         review complainant must file a petition. This petition must allege
         factually and with particularity that the prior judgment was rendered as
         the result of fraud, accident or wrongful act of the opposite party or
         official mistake unmixed with his own negligence. The complainant must
         further allege, with particularity, sworn facts sufficient to constitute [a]
         defense and, as a pretrial matter, present prima facie proof to support the
         contention. This preliminary showing is essential in order to assure the
         court that valuable judicial resources will not be wasted by conducting a
         spurious “full-blown” examination of the merits.



Ramsey v. State                                                                             Page 9
              The relevant inquiry is not whether “the result would probably be
       different” on retrial as some Texas cases have indicated. Such a test
       would require the court to weigh the evidence. Rather, a prima facie
       meritorious defense is made out when it is determined that the
       complainant’s defense is not barred as a matter of law and that he will be
       entitled to judgment on retrial if no evidence to the contrary is offered.
       This is a question of law for the court. Prima facie proof may be
       comprised of documents, answers to interrogatories, admissions, and
       affidavits on file along with such other evidence that the trial court may
       receive in its discretion. The bill of review defendant may respond with
       like proof showing that the defense is barred as a matter of law, but
       factual questions arising out of factual disputes are resolved in favor of
       the complainant for the purposes of this pretrial, legal determination. If
       the court determines that a prima facie meritorious defense has not been
       made out, the proceeding terminates and the trial court shall dismiss the
       case.

            On the other hand, if a prima facie meritorious defense has been
       shown, the court will conduct a trial.

Baker, 582 S.W.2d at 408-09 (citations omitted).

       In the later case of Beck v. Beck, the trial court conducted a pretrial “Baker

hearing” and dismissed the bill-of-review proceeding because it found that the plaintiff

had failed to make a prima facie showing of a meritorious defense. 771 S.W.2d 141, 141

(Tex. 1989). The court of appeals affirmed on different grounds, assuming without

deciding that the plaintiff had made the requisite prima facie showing but concluding

nevertheless that the plaintiff’s pleadings established her negligence as a matter of law.

Id.

       The Supreme Court reversed because the only trial court ruling subject to

appellate review was the determination that the plaintiff had failed to make a prima

facie showing. Id. at 141-42. In other words, the court of appeals erroneously affirmed

the decision on a theory raised for the first time on appeal.


Ramsey v. State                                                                     Page 10
       Ramsey cites Beck for the proposition that a court errs if it fails to first conduct

the pretrial hearing described in Baker.     We disagree.     As we have explained, the

Supreme Court’s decision in Beck was based not on a failure to follow the suggested

Baker procedure but on the appellate court’s failure to address the sole basis for the trial

court’s decision.

       Some appellate courts have implicitly or expressly declined to view the Baker

procedure as an absolute requirement. See, e.g., Thompson, 149 S.W.3d at 165 (“It often

occurs, as it did in this case, that the trial court does not follow the suggested procedure

and makes no pre-trial determination as to whether the bill of review petitioner has

made a prima facie showing of a meritorious defense (or ground of appeal), but tries all

the bill of review issues together.”). The Fourteenth Court of Appeals has explained

why it does not believe Baker to have established a required procedure.

        We note that while it is clear that the existence of a prima facie
       meritorious defense must be determined as a pretrial matter, nowhere in
       Beck or Baker does the supreme court state that the trial court must
       conduct a separate hearing in making that determination. Rather, the Beck
       and Baker courts held only that a bill of review plaintiff must present a
       prima facie meritorious defense.           If the trial court subsequently
       determines that a defense has not been made out, it may dismiss the case.
       Moreover, a requirement that a trial court conduct a separate hearing to
       determine whether a meritorious defense exists would defeat the purpose
       of such a pretrial determination, that is, judicial economy.

Ortmann v. Ortmann, 999 S.W.2d 85, 88 (Tex. App.—Houston [14th Dist.] 1999, pet.

denied) (citation omitted).




Ramsey v. State                                                                      Page 11
        Even the Supreme Court has not been entirely clear on this matter. In Beck, the

Court described the Baker preliminary procedure as one which they had “directed,” as a

“suggested procedure,” and as an “authorized” procedure. Beck, 771 S.W.2d at 142.

        We agree with the Fourteenth Court’s view. The Baker pretrial hearing is a

“suggested procedure” which a trial court may choose not to employ. Accordingly, we

overrule Ramsey’s first issue.

                                  Denial Without Pretrial Hearing

        Ramsey contends in his second issue5 that the court abused its discretion by

summarily denying his bill-of-review petition for failure to allege extrinsic fraud or

official mistake without first conducting a Baker pretrial determination regarding

whether he had presented prima facie proof of a meritorious ground for appeal.

        We have already determined that the Baker pretrial hearing regarding prima facie

proof of a meritorious ground for appeal is not an absolute requirement. In construing

Baker, however, Beck establishes two related principles for an appeal in a bill-of-review

proceeding.




5
         Ramsey’s brief does not present his appellate contentions in a clear, concise, or organized fashion.
Cf. TEX. R. APP. P. 38.1(h) (“brief must contain a clear and concise argument for the contentions made”).
Nevertheless, we are constrained to construe an appellant’s brief liberally and review “every subsidiary
question that is fairly included” within a particular issue or point. See id. 38.1(e), 38.9; In re T.N.F., 205
S.W.3d 625, 631 (Tex. App.—Waco 2006, pet. denied); Kaufman v. Comm’n for Lawyer Discipline, 197 S.W.3d
867, 871 n.2 (Tex. App.—Corpus Christi 2006, pet. denied); see also Michiana Easy Livin’ Country, Inc. v.
Holten, 168 S.W.3d 777, 781 & n.5 (Tex. 2005) (addressing similar rule applicable to briefs filed in the
Supreme Court).



Ramsey v. State                                                                                      Page 12
        (1)       If a trial court dismisses a bill-of-review petition for failure to
                  present a prima facie meritorious claim or defense, then that is the
                  sole issue to be reviewed on appeal. See Beck, 771 S.W.2d at 142;6

        (2)       A bill-of-review proceeding is governed by the rules applicable to
                  civil suits generally and may not be summarily dismissed for a
                  reason other than the failure to make a prima facie showing of a
                  meritorious claim or defense. See Beck, 771 S.W.2d at 142 (citing
                  Massey v. Armco Steel Co., 652 S.W.2d 932, 934 (Tex. 1983); Tex. Dep’t
                  of Corrections v. Herring, 513 S.W.2d 6, 10 (Tex. 1974)); see also Ross,
                  197 S.W.3d at 798 (criticizing trial court’s dismissal of bill of review
                  because of plaintiff’s failure to appear without first considering
                  lesser sanctions); Gold v. Gold, 145 S.W.3d 212, 214 (Tex. 2004) (per
                  curiam) (trial court erred by dismissing bill of review without first
                  giving plaintiff notice and opportunity to be heard); 5 ROY W.
                  MCDONALD & ELAINE A. CARLSON, TEXAS CIVIL PRACTICE § 29:6 (2d
                  ed. 1999) (a bill-of-review “cause proceeds in most respects as
                  would any other civil action”).7

Ramsey’s complaint concerns the second of these principles.

        In Ince v. Ince, 58 S.W.3d 187, 189-90 (Tex. App.—Waco 2001, no pet.), this Court

held that a bill-of-review proceeding may be summarily dismissed under Baker if the

plaintiff fails to: (1) file an adequate petition; or (2) make a prima facie showing of a

meritorious claim or defense.

        Only upon satisfaction of both requirements will the court grant a new
        trial. Otherwise, the court will automatically dismiss the case without
        motion or request from either party. Baker, 582 S.W.2d at 408.




6
        Cf. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 157 (Tex. 2004) (summary judgment which
does not specify the basis for the court’s ruling may be affirmed only on “theories presented to the trial
court and preserved for appellate review”).

7
         Cf. Moonlight Invs., Ltd. v. John, 192 S.W.3d 890, 893 (Tex. App.—Eastland 2006, pet. denied) (“a
party is generally required to file a special exception to challenge a defective pleading”); Heil Co. v. Polar
Corp., 191 S.W.3d 805, 817 (Tex. App.—Fort Worth 2006, pet. denied) (similar statement); Winters v. Parker,
178 S.W.3d 103, 105-06 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (similar statement).



Ramsey v. State                                                                                      Page 13
Id. at 190. Accordingly, this Court held that Derek Ince’s bill-of-review petition was

properly dismissed by the trial court because it alleged only intrinsic fraud. 8 Id. at 191.

        On further review, it appears that our reading of Baker was erroneous. In that

case, the Supreme Court established a pleading requirement, namely, a bill-of-review

“petition must allege factually and with particularity that the prior judgment was

rendered as the result of fraud, accident or wrongful act of the opposite party or official

mistake unmixed with [the complainant’s] own negligence.” Baker, 582 S.W.2d at 408.

In addition, the Court established what we have now described as a suggested pretrial

procedure for a determination of whether the plaintiff can make a prima facie showing

of a meritorious claim or defense. Id. at 408-09. “If the court determines that a prima

facie meritorious defense [or claim] has not been made out, the proceeding terminates and

the trial court shall dismiss the case.” Id. at 409 (emphasis added). According to the

plain language of Baker, the Court authorized the summary dismissal of a bill-of-review

proceeding only if the plaintiff fails to make this prima facie showing. See Beck, 771

S.W.2d at 142 (“We hold that in conducting the pre-trial hearing authorized by Baker v.

Goldsmith, the only relevant inquiry is whether the petitioner has presented prima facie

proof of a meritorious defense.”).

        We cited three decisions other than Baker to support our holding in Ince: Tice v.

City of Pasadena, 767 S.W.2d 700 (Tex. 1989) (orig. proceeding); Transworld Financial




8
       To prevail in a bill of review on the basis of fraud, the plaintiff must establish extrinsic fraud as
opposed to intrinsic fraud. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 752 (Tex. 2003); Alexander v.
Hagedorn, 148 Tex. 565, 226 S.W.2d 996, 1001 (1950).


Ramsey v. State                                                                                     Page 14
Services Corp. v. Briscoe, 722 S.W.2d 407 (Tex. 1987); and Wise v. Fryar, 49 S.W.3d 450

(Tex. App.—Eastland 2001, pet. denied).

       In Transworld Financial Services, the Supreme Court affirmed a trial court’s

dismissal of a bill-of-review proceeding in which the plaintiff had failed to allege

extrinsic fraud.      722 S.W.2d at 407.   In Ince however, we failed to consider the

procedural vehicle by which the trial court made this ruling. The pleading defect in

Transworld Financial Services was raised by special exception. See Briscoe v. Transworld

Fin. Servs. Corp., 705 S.W.2d 288, 290 (Tex. App.—San Antonio 1986), rev’d, 722 S.W.2d

407 (Tex. 1987). The trial court sustained the special exception, the Briscoes refused to

amend their petition, and the court dismissed the case. Id. Thus, Transworld Financial

Services does not authorize the summary dismissal of a bill-of-review proceeding for

insufficient pleadings.

       Neither does Tice support this proposition. In Tice, a plaintiff whose judgment

the Supreme Court had affirmed filed a mandamus petition with the Supreme Court to

prevent the City of Pasadena (the judgment debtor) from pursuing a bill of review in

the trial court. 767 S.W.2d at 701-02. The Supreme Court held that Pasadena had failed

to allege extrinsic fraud and granted mandamus relief prohibiting and enjoining

Pasadena from further prosecution of the bill-of-review proceeding which raised

matters already fully litigated by the parties and which “would interfere with the

judgment of [that] court.” Id. at 704-05. Because of the unique procedural posture of

Tice, it should not be read as authorizing a summary dismissal for defective pleadings

by the trial court.


Ramsey v. State                                                                   Page 15
        By comparison, Wise appears to support this proposition. However, Wise is not

entirely clear on the matter and, until this Court’s decision in Ince, apparently stood

alone.9 In Wise, the trial court held a pretrial hearing, ostensibly to determine whether

the plaintiff could make the requisite prima facie showing. See 49 S.W.3d at 453-54. In

that hearing, the plaintiff presented testimony relevant to his meritorious defense (lack

of paternity) and to the issue of whether his failure to present this meritorious defense

at trial was without negligence or fault on his part. Id. The trial court denied the

petition “without reaching the merits,” but it is unclear from the opinion what the basis

for the trial court’s decision was. Id. at 452. Nonetheless, the Eastland Court of Appeals

affirmed in part because: (1) the plaintiff failed to establish that his failure to pursue

paternity testing was without negligence or fault on his part; and (2) he alleged and

offered evidence of only intrinsic fraud. Id. at 454-55.

        We believe that Wise is inconsistent with Supreme Court precedent insofar as it

stands for the proposition that a trial court may summarily dismiss a bill-of-review

proceeding because of the plaintiff’s failure to make a prima facie showing of any

element of the bill-of-review claim other than the requirement that the plaintiff establish

9
          Our research has unearthed no Supreme Court decision since Beck which could be read to
support the proposition that a trial court may summarily dismiss a bill of review for any reason other
than the plaintiff’s failure to make a prima facie showing of a meritorious claim or defense (or ground for
appeal). By contrast, several intermediate appellate courts have, since Wise, indicated approval of the
approach taken in Wise and Ince. See, e.g., In re Office of Att’y Gen., No. 12-07-00242-CV, 2007 WL 2318887,
at *2 (Tex. App.—Tyler Aug. 15, 2007, orig. proceeding) (mem. op.); In re Att’y Gen., 184 S.W.3d 925, 927-
29 (Tex. App.—Beaumont 2006, orig. proceeding) (per curiam); Temple v. Archambo, 161 S.W.3d 217, 226-
27 (Tex. App.—Corpus Christi 2005, no pet.). Another line of cases, which predates Wise, holds that a
bill-of-review plaintiff is not entitled to pretrial paternity testing under the discovery rules if the
plaintiff’s pleadings do not adequately allege the requisite elements for the bill-of-review claim. See, e.g.,
Amanda v. Montgomery, 877 S.W.2d 482, 486-87 (Tex. App.—Houston [1st Dist.] 1994, orig. proceeding);
Spears v. Haas, 718 S.W.2d 756, 758 (Tex. App.—Corpus Christi 1986, orig. proceeding). However, this
line of cases does not authorize a summary dismissal because of inadequate pleadings.


Ramsey v. State                                                                                      Page 16
a meritorious claim or defense (or ground for appeal). See Ross, 197 S.W.3d at 798; Gold,

145 S.W.3d at 214; Beck, 771 S.W.2d at 142. We overrule our decision in Ince to the extent

it stands for the proposition that a trial court may summarily dismiss or deny a bill-of-

review proceeding due to insufficient pleadings. Id.

       Accordingly, we hold that the trial court erred when it summarily denied

Ramsey’s bill-of-review petition for failure to allege extrinsic fraud or official mistake

because that issue was not raised by special exception or other proper motion.

                                          Harm

       We now determine whether this error is subject to a harm analysis.               The

Fourteenth Court has concluded that procedural errors of this nature in a bill-of-review

proceeding are not subject to a harm analysis. Boateng v. Trailblazer Health Enters.,

L.L.C., 171 S.W.3d 481, 494 (Tex. App.—Houston [14th Dist.] 2005), pet. denied sub nom.

United States v. Boateng, 50 Tex. Sup. Ct. J. 652, 2007 WL 1160435 (Tex. Apr. 20, 2007) (per

curiam). “The cases [the Fourteenth Court] found hold that this error is not subject to a

harm analysis.” Id. We decline to follow the Fourteenth Court’s lead in this regard.

       First, the Fourteenth Court cited six decisions in bill-of-review cases which

reversed the trial court’s judgment without conducting a harm analysis. Id. However,

not one of these cases addressed whether a harm analysis should be conducted.

       More importantly, the Supreme Court has conducted a harm analysis in a

procedurally similar case. See Caldwell, 154 S.W.3d at 98. In Caldwell, the trial court

conducted a pretrial hearing in which the plaintiff Caldwell presented evidence that he




Ramsey v. State                                                                      Page 17
had not been served with process.10 However, conflicting evidence on this issue was

presented during the hearing and, after the hearing, the court rendered a decision

denying the bill of review, largely because it did not find Caldwell to be a credible

witness. Id. at 96. The Supreme Court held that the trial court erred by summarily

determining this issue without a trial but did not reverse until it determined that this

was “harmful error.” Id. at 98; see also Elliott v. Elliott, 21 S.W.3d 913, 921-22 (Tex.

App.—Fort Worth 2000, pet. denied) (holding that the bill-of-review plaintiff was not

harmed by trial court’s exclusion of expert opinion testimony during preliminary Baker

hearing).

        Under Rule 44.1(a), a trial court error requires reversal if it: (1) probably caused

the rendition of an improper judgment; or (2) probably prevented the appellant from

properly presenting the case to this Court. TEX. R. APP. P. 44.1(a).

        Here, the trial court dismissed the case because Ramsey failed to allege extrinsic

fraud or official misconduct. Ordinarily, a pleading defect must be challenged by

special exception. See Friesenhahn v. Ryan, 960 S.W.2d 656, 658 (Tex. 1998); Moonlight

Invs., Ltd. v. John, 192 S.W.3d 890, 893 (Tex. App.—Eastland 2006, pet. denied) (“a party

is generally required to file a special exception to challenge a defective pleading”); Heil

Co. v. Polar Corp., 191 S.W.3d 805, 817 (Tex. App.—Fort Worth 2006, pet. denied) (similar

statement); Winters v. Parker, 178 S.W.3d 103, 105-06 (Tex. App.—Houston [1st Dist.]


10
         The purpose of this pretrial hearing was apparently to determine whether Caldwell could make a
prima facie showing of a meritorious defense. See Baker v. Goldsmith, 582 S.W.2d 404, 408-09 (Tex. 1979).
However, the Supreme Court explained in Caldwell that, when a bill-of-review plaintiff alleges lack of
service, no preliminary Baker hearing is required and the plaintiff is entitled to a trial on the issue of
whether he was served. See Caldwell v. Baker, 154 S.W.3d 93, 97-98 (Tex. 2004) (per curiam).


Ramsey v. State                                                                                   Page 18
2005, no pet.) (similar statement). “However, when the pleading deficiency is the type

that cannot be cured by an amendment, a special exception is unnecessary and a

summary judgment based on the pleading’s failure to state a legal claim is in order.”

Heil Co., 191 S.W.3d at 817 (citing Friesenhahn, 960 S.W.2d at 658).

        The primary purpose of a special exception is to give the pleader notice of a

pleading deficiency and an opportunity to cure by amending the pleading.                             See

Friesenhahn, 960 S.W.2d at 659; Hughes v. Massey, 65 S.W.3d 743, 745 (Tex. App.—

Beaumont 2001, no pet.). But settled case law establishes that the pleader need be

granted the opportunity to amend “only if it is possible to cure the pleading defect.”

Tex. A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840 (Tex. 2007). Here, the defect

cannot be cured.

        To prevail in this proceeding, Ramsey must allege and prove under Petro-

Chemical that he was prevented from pursuing a meritorious ground of appeal because

of extrinsic fraud or official mistake, unmixed with any negligence of his own.11 See San

Patricio County, 214 S.W.3d at 544; Thompson, 149 S.W.3d at 164. However, much of

Ramsey’s trial pleadings and appellate briefing focus on alleged fraud and official

mistakes which prevented him from presenting additional evidence in the “trial” of his

original petition for nondisclosure. But he clarifies on page 25 of his appellant’s brief

the reason he failed to pursue an appeal of the trial court’s denial of the petition for

nondisclosure. “Appellant, acting in a pro se capacity, was under the impression that



11
         By reciting the Petro-Chemical bill-of-review elements, Ramsey acknowledged as much in the brief
he filed with the trial court in support of his bill of review.


Ramsey v. State                                                                                  Page 19
such a ruling was a final ruling and not subject to appeal, a belief that was in error, but

not due to negligence.” Ramsey made a similar statement on page 2 of the brief he filed

in the trial court in support of the bill of review. “Because the Petitioner was uncertain

of the right of appeal, combined with the heavy burden of proving abuse of discretion,

the Petitioner did not file a timely appeal.”

       “Assertions of fact, not plead in the alternative, in the live pleadings of a party

are regarded as formal judicial admissions.” Holy Cross Church of God in Christ v. Wolf,

44 S.W.3d 562, 568 (Tex. 2001) (quoting Houston First Am. Sav. Ass’n v. Musick, 650

S.W.2d 764, 767 (Tex. 1983)); accord Green v. Ransor, Inc., 175 S.W.3d 513, 517 (Tex.

App.—Fort Worth 2005, no pet.). This rule applies to appellate pleadings as well as trial

pleadings.    See Tex. Dep’t of Human Servs. v. Okoli, No. 01-07-00103-CV, 2007 WL

1844897, at *6 (Tex. App.—Houston [1st Dist.] June 28, 2007, pet. filed); Jansen v.

Fitzpatrick, 14 S.W.3d 426, 431 (Tex. App.—Houston [14th Dist.] 2000, no pet.).

       Thus, Ramsey judicially admitted that his failure to file an appeal was not due to

fraud (extrinsic or intrinsic) or any official mistake. Accordingly, it is not possible for

him to amend his pleading to allege otherwise, and “[r]emanding this case would serve

no legitimate purpose.” See Koseoglu, 233 S.W.3d at 840.

       For these reasons, we hold that the trial court’s error in summarily denying

Ramsey’s bill of review did not result in the rendition of an improper judgment or

prevent Ramsey from properly presenting his case to this Court. See TEX. R. APP. P.

44.1(a). We overrule Ramsey’s second issue.




Ramsey v. State                                                                     Page 20
                                       Conclusion

       In view of our dispostion of Ramsey’s second issue, we need not address the

remaining issues. Id. 47.1. We affirm the judgment.



                                                        FELIPE REYNA
                                                        Justice

Before Chief Justice Gray,
        Justice Vance, and
        Justice Reyna
        (Chief Justice Gray concurs with the following note: “The majority fails to
recognize why and when a pretrial hearing is not required in a bill-of-review
proceeding and thus erroneously holds the trial court erred and overrules prior
precedent of t his Court. A trial court can dispense with the pretrial hearing in a bill-of-
review proceeding if it rolls the issues to be decided in that hearing into a trial on the
merits. The issues are the same and must be decided. There is frequently confusion
about what constitutes a hearing, but I need not elaborate on that in this context. The
trial court held its hearing in which it decided Ramsey was not entitled to proceed by
bill-of-review. Properly following the precedent of this Court, cited by neither party
and not argued as erroneously decided by either party, I would hold the trial court did
not err and affirm its judgment. Thus I concur in the judgment, but only the judgment,
of the Court which affirms the trial court’s judgment.”)
Affirmed
Opinion delivered and filed January 16, 2008
[CV06]




Ramsey v. State                                                                      Page 21
