                                      NO. 07-07-0431-CV

                                 IN THE COURT OF APPEALS

                          FOR THE SEVENTH DISTRICT OF TEXAS

                                        AT AMARILLO

                                           PANEL D

                                      JULY 27, 2009
                             ______________________________

                            IN RE R. WAYNE JOHNSON, RELATOR
                             _______________________________


Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


                                  MEMORANDUM OPINION


         Relator R. Wayne Johnson, acting pro se, filed a petition seeking relief by writ of

mandamus. We will deny his petition.


         According to his petition, relator seeks a writ of mandamus against the Honorable

John B. Board, judge of the 181st District Court of Potter County. The petition asserts that

Judge Board, in his capacity as local administrative judge,1 abused his discretion by

refusing to sign an order relator submitted that would have allowed him to file a civil suit.


         Relator’s petition includes a copy of an order entered in June 2001 in the District

Court of Bee County, granting a motion to declare relator a vexatious litigant. The order

further prohibits relator from filing suit in Texas courts without permission of a local



         1
             Tex. Gov’t Code Ann. 74.091 (Vernon 2005); Tex.Gov’t Code Ann. 74.092 (Vernon
2005).
administrative judge. See Tex. Civ. Prac. & Rem. Code Ann. §§ 11.051 (providing for

motions for determination that plaintiff is vexatious litigant), 11.101 (providing for pre-filing

orders) (Vernon 2002).2 See also In re Johnson, No. 07-06-0359-CV, 2006 WL 2919071

(Tex.App.–Amarillo October 12, 2006) (orig. proceeding) (recognizing relator’s status as

vexatious litigant).


       Courts will issue mandamus to correct a clear abuse of discretion or the violation

of a duty imposed by law when there is no other adequate remedy available by appeal.

In re Prudential Ins. Co. of America, 148 S.W.3d 124, 135-36 (Tex. 2004) (orig.

proceeding); Canadian Helicopters Ltd. v. Wittig, 876 S.W.2d 304, 305 (Tex. 1994) (orig.

proceeding); Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). It is

the relator's burden to show entitlement to the relief being requested. See generally

Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985) (orig. proceeding).


       To our knowledge, no court has found that a local administrative judge’s denial of

permission to a vexatious litigant to file suit is reviewable by mandamus. See Tex. Civ.

Prac. & Rem. Code Ann. § 11.102 (Vernon 2002) (providing for such permission). It is not

necessary for us to determine that question here, and we do not address it. Even

assuming mandamus to be available in a proper case, relator’s petition does not

demonstrate his entitlement to mandamus relief.




      2
        Relator appears on the list of vexatious litigants maintained by the Office of Court
Administration. See courts.state.tx.us/oca/vexatious_litigants.xls.

                                               2
       By his petition, relator contends that Chapter 11 of the Civil Practice and Remedies

Code does not apply to him because the 2001 order of the Bee County District Court

declaring him a vexatious litigant is void. He points out the Attorney General of Texas was

a defendant in the Bee County case in which the order was entered, and asserts that the

Attorney General submitted the motion asking that he be declared a vexatious litigant. He

further cites section 402.021 of the Government Code, and points to its language that the

Attorney General shall prosecute and defend all actions in which the State is interested

before the Supreme Court and Courts of Appeals. Tex. Gov’t Code Ann. § 402.021

(Vernon 2005). From this statute, relator reasons that the Attorney General had no

authority to appear in the Bee County District Court, and so had no authority to submit the

motion under section 11.051, rendering the District Court’s order void.


       Relator’s reasoning is faulty, for several reasons. We will mention three. First,

section 11.101 does not require that a party to litigation file a motion for the entry of a pre-

filing order against a person determined to be a vexatious litigant. That section provides

a court may enter a pre-filing order on its own motion. Tex. Civ. Prac. & Rem. Code Ann.

§ 11.101 (Vernon 2002). Second, the Bee County District Court’s pre-filing order reflects

the style of that litigation as “R. Wayne Johnson A.K.A. “Legal Eagle,” plaintiff v. John

Cornyn, Attorney General and Andy Taylor, defendants.” Nothing in relator’s mandamus

petition demonstrates what claims he asserted against then-Attorney General Cornyn in

Bee County, or in which capacity the defendants were sued, so it is not clear that any

particular statutory authority was necessary for them to defend the action against them.

Third, section 402.021 is not the only basis for the Attorney General’s representation of the


                                               3
State in litigation. See Tex. Const. art. IV, § 22. See also El Paso Elec. Co. v. Texas Dept.

Of Ins., 937 S.W.2d 432, 438-439 (Tex. 1996) (the legislature, pursuant to the authority

delegated to it under article IV, section 22, may empower the Attorney General to represent

the State in district court). For these reasons, and others not necessary to discuss, relator’s

petition would not authorize issuance of a writ of mandamus, assuming mandamus to be

available.


       Accordingly, relator’s petition is denied.




                                                    James T. Campbell
                                                         Justice




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