                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-09-00003-CV

CLIFFORD ALLEN SMITH,
                                                            Appellant
v.

BRAD LIVINGSTON,
                                                            Appellees



                           From the 278th District Court
                              Walker County, Texas
                              Trial Court No. 24,147


                          MEMORANDUM OPINION


      Clifford Allen Smith, a Texas inmate, sued Brad Livingston, executive director of

the Texas Department of Criminal Justice. The Attorney General filed a motion to

declare Smith a vexatious litigant. After a hearing, the trial court granted the motion

and ordered Smith to furnish security. Smith failed to pay the required security and the

trial court dismissed his lawsuit with prejudice. In a single issue, Smith challenges the

trial court’s granting of the motion to declare him a vexatious litigant. We affirm.
          A plaintiff may be found to be vexatious if (1) there is no reasonable probability

that he will prevail; and (2) in the preceding seven-year period, he has commenced,

prosecuted, or personally maintained at least five litigations other than in a small claims

court that have been (a) finally determined adversely to him; (b) pending at least two

years without having been brought to trial or hearing; or (c) found to be frivolous or

groundless. TEX. CIV. PRAC. & REM. CODE ANN. § 11.054(1)(A)-(C) (Vernon 2002). A trial

court’s vexatious litigant finding is reviewed for abuse of discretion. See Pandozy v.

Beaty, 254 S.W.3d 613, 619 (Tex. App.—Texarkana 2008, no pet.).

Reasonable Probability of Prevailing

          In his petition, Smith alleged that labor was not a condition of confinement at the

time he entered his plea agreement; thus, forcing him to perform labor breached his

plea agreement in violation of the United States and Texas Constitutions and statutes.

The Attorney General argues that Smith pleaded a 42 U.S.C. § 1983 claim, which fails

because Smith did not allege any personal involvement by Livingston. See 42 U.S.C.S. §

1983 (LexisNexis 2002).       Smith argues that he did not plead a section 1983 claim.

Because Smith’s petition does not specify any legal basis for his claim, but essentially

alleges a violation of his civil rights, we will treat his claim as a section 1983 cause of

action.

          “[S]upervisory officials are not liable for the actions of subordinates on any

theory of vicarious liability.” Thompkins v. Belt, 828 F.2d 298, 303 (5th Cir. 1987). “[A]

supervisor may be held liable if there exists either (1) his personal involvement in the

constitutional deprivation, or (2) a sufficient causal connection between the supervisor’s


Smith v. Livingston                                                                    Page 2
wrongful conduct and the constitutional violation.”         Id. at 304 (emphasis added).

Personal involvement is an essential element in a civil rights cause of action alleging

constitutional deprivation. Poteet v. Sullivan, 218 S.W.3d 780, 794 (Tex. App.—Fort

Worth 2007), cert denied 129 S. Ct. 623, 172 L. Ed. 2d 607 (2008) (citing Thompkins, 828

F.2d at 303).     The plaintiff must plead specific facts establishing the defendant’s

participation in the alleged violation. See Murphy v. Kellar, 950 F.2d 290, 292 (5th Cir.

1992). “[G]eneralized allegations” are insufficient. See id. at 292 n.7.

       Smith failed to plead any facts establishing Livingston’s personal involvement or

participation in the alleged violation of his plea agreement. See Anthony v. Tex. Dep’t of

Crim. Justice, No. 01-08-00465-CV, 2009 Tex. App. LEXIS 1482, at *21-22 (Tex. App.—

Houston [1st Dist.] Mar. 5, 2009, no pet.) (mem. op.) (“Anthony did not allege any facts

regarding the personal involvement of any of the named defendants in removing him

from his SSI position,” but “merely made the conclusory statement that Trinci, Ellis, and

Carrillo were ‘involved’ in his removal.”); see also Johns v. Johnson, No. 10-03-00388-CV,

2005 Tex. App. LEXIS 1500, at *8 (Tex. App.—Waco Feb. 23, 2005, no pet.) (mem. op.)

(“Johns fails to allege any affirmative participation by the six defendants in a

constitutional deprivation and fails to allege wrongful conduct on their part that caused

a constitutional violation.”). Accordingly, there is no reasonable probability that he will

prevail on his claim.

Lawsuits Filed in the Preceding Seven-Year Period

       Smith has filed at least ten previous lawsuits. Seven of these lawsuits were

dismissed pursuant to 28 U.S.C. § 1915, which allows a court to dismiss a proceeding


Smith v. Livingston                                                                  Page 3
filed in forma pauperis if the suit is frivolous, malicious, or fails to state a claim. See 28

U.S.C.S. § 1915(e)(2)(B) (LexisNexis 2003).      Thus, in the seven years preceding the

current suit, Smith has commenced, prosecuted, or maintained in propria persona at

least five litigations that have either been determined adversely to him or determined to

be frivolous or groundless. TEX. CIV. PRAC. & REM. CODE ANN. § 11.054(1)(A), (C).

       Because both prongs of section 11.054 are met, the trial court did not abuse its

discretion by finding Smith to be vexatious. We overrule issue one and affirm the trial

court’s judgment.




                                                         FELIPE REYNA
                                                         Justice
Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
       (Chief Justice Gray concurring with note)*
Affirmed
Opinion delivered and filed December 30, 2009
[CV06]

*       (Chief Justice Gray would have dismissed this proceeding for want of
jurisdiction. The majority, however, rendered a void abatement order. It was void
because we had no jurisdiction and could not validly take any action other than to
dismiss the proceeding. See Smith v. Livingston, No. 10-09-00003 (Tex. App.—Waco
May 13, 2009, abatement order) (per curiam) (Gray, C.J., dissenting). Notwithstanding
the invalidity of that order, the parties and the trial court acted upon it and took those
actions necessary to give the Court jurisdiction, specifically the trial court rendered a
final judgment dismissing Smith’s suit. Our prior error, thus having been overtaken
and corrected by subsequent events, does not now deprive us of jurisdiction and we
may proceed to a discussion on the merits. With these comments I concur only in the
judgment and only to the extent it affirms the trial court’s judgment of dismissal and
assesses cost against Smith.)




Smith v. Livingston                                                                     Page 4
