                                   NO. 07-11-00250-CV

                               IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL D

                                   NOVEMBER 22, 2011


                             RICKY W. TURNER, APPELLANT

                                              v.

                            J.O. GRANT, ET.AL., APPELLEES


              FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;

             NO. 99,218-E; HONORABLE DOUGLAS WOODBURN, JUDGE


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


                                MEMORANDUM OPINION

      Plaintiff Ricky W. Turner,1 a prison inmate appearing pro se and in forma

pauperis, appeals the dismissal of his suit for damages against seven prison

employees.     For the reasons that follow, we will reverse and render in part and

otherwise affirm.


                                        Background


      On December 28, 2010, Turner filed suit against defendants J. O. Grant, E. T.

Jennings, P. Vasquez, O. B. Garza, H. O. Medina, H. J. Arias, and Larry Berger seeking

      1
          The trial court’s orders of June 2, 2011 identify Turner as “Ricky J. Turner.”
money damages for alleged deprivations of his constitutional rights.        None of the

defendants were served with process and none appeared in the trial court.


      On January 31, 2011, the trial court sua sponte signed an order declaring Turner

a vexatious litigant. The order required that Turner furnish security of $500 within 120

days of the order on peril of dismissal for noncompliance. The order directed the district

clerk to forward a copy of the order to the Office of Court Administration (OCA)

according to the requirement of § 11.104(a) of the Texas Civil Practice and Remedies

Code. Finally, the order contained an anti-suit injunction barring Turner from filing any

new litigation in propria persona in a Texas state court pursuant to Civil Practice and

Remedies Code §§ 11.051-11.057.         Turner sought vacation of the order through a

February 28 motion for reconsideration and a March 21 “motion to rescind.” The record

does not indicate the trial court expressly ruled on these motions.


      On June 2, 2011, the trial court signed an order reciting that on January 28 it

found Turner was a vexatious litigant and ordered that he furnish security by March 31.2

The order decreed, “[b]ecause [Turner] has not furnished such security by the date

demanded by the Court, the above referenced and numbered cause is DISMISSED.”


      A second order signed June 2 states “all causes of action in the above styled suit

brought by [Turner] against all Defendants are DISMISSED in their entirety. The Claims

against Defendants are dismissed, as frivolous, pursuant to Chapter Fourteen of the


      2
         The 120-day deadline measured from January 31 would require that Turner
furnish the $500 security by May 31, 2011. The record offers no explanation for the
discrepancies in the dates stated in the court’s January 31 and June 2 orders.

                                            2
Civil Practice & Remedies Code.” The record contains no single document in the form

of a final judgment. Turner filed a notice of appeal on June 24.


                                         Analysis


       On appeal, Turner contends the trial court abused its discretion by finding him a

vexatious litigant and by finding his claims against appellees were frivolous.


Vexatious Litigant Determination


       A defendant may move for an order finding the plaintiff is a vexatious litigant and

requiring the plaintiff to furnish security. Tex. Civ. Prac. & Rem. Code Ann. § 11.051

(West 2002).3 The motion must be filed on or before the ninetieth day after the date the

defendant files its original answer. Id. When a defendant files a motion pursuant to §

11.051, the litigation is stayed until the tenth day after the motion is denied or the tenth

day after the defendant receives notice that the plaintiff has furnished the required

security. § 11.052.


       On receipt of the motion and after notice has been given to all parties, the trial

court shall conduct a hearing on the motion, at which it may consider any material

evidence.    § 11.053(a),(b).   A court may find a plaintiff a vexatious litigant if the

defendant shows there is not a reasonable probability the plaintiff will prevail in the

litigation and that one of the grounds listed in paragraphs (1), (2) and (3) of § 11.054 is

satisfied.   See § 11.054(1) (plaintiff has filed multiple suits in seven-year period);



       3
        All subsequent citations to the Texas Civil Practice and Remedies Code (West
2002) will be by section number only.
                                             3
11.054(2) (plaintiff repeatedly has attempted to relitigate claim); 11.054(3) (plaintiff has

been declared vexatious litigant by another court in similar proceeding).


       If, after hearing the evidence on the motion, the trial court determines the plaintiff

is a vexatious litigant, it shall order the plaintiff to furnish security for the benefit of the

moving defendant. § 11.055(a). The trial court must dismiss the litigation against the

moving defendant if the plaintiff fails to furnish the security within the time fixed by the

trial court’s order. § 11.056. If security is furnished and the litigation is dismissed on

the merits, the moving defendant has recourse to the security. § 11.057.


       A trial court is authorized to enter a prefiling order enjoining a person from filing a

new litigation, in propria persona, without the prior permission of the local administrative

judge if, after notice and a hearing, the trial court finds the person is a vexatious litigant,

and the local administrative judge has not granted permission to the person to file the

litigation. § 11.101(a). A clerk of the court must provide a copy of the prefiling order to

the OCA which is required to maintain a list of vexatious litigants. § 11.104.


       “We review issues concerning Chapter Eleven of the Texas Civil Practice and

Remedies Code under an abuse of discretion standard.” Devoll v. State, 155 S.W.3d

498, 502 (Tex.App.--San Antonio 2004, no pet.).           Because a court may declare a

person a vexatious litigant only after making certain statutorily prescribed evidentiary

findings, we consider the legal and factual sufficiency of the evidence supporting any

express or implicit findings of the trial court. Leonard v. Abbott, 171 S.W.3d 451, 459

(Tex.App.--Austin 2005, pet. denied). But under the abuse of discretion standard we

employ, the legal and factual sufficiency of the evidence are not independent grounds of

                                               4
error, but relevant factors for determining whether the trial court abused its discretion.

See Zieba v. Martin, 928 S.W.2d 782, 786 (Tex.App.--Houston [14th Dist.] 1996, no

writ); Crawford v. Hope, 898 S.W.2d 937, 940-41 (Tex.App.--Amarillo 1995, writ

denied). If an abuse of discretion is shown, we then consider whether the error was

harmless. See Tex. R. App. P. 44.1(a).


       By its January 31 order, on its own motion, without notice to Turner and without a

hearing, the trial court declared him a vexatious litigant. In an amicus brief, the Attorney

General of Texas urges us to hold the trial court possessed authority sua sponte to

declare Turner a vexatious litigant. For support it points to In re Douglas, where the

court affirmed a trial court’s sua sponte finding that the plaintiff was a vexatious litigant.

In re Douglas, 333 S.W.3d 273 (Tex.App.--Houston [1st Dist.] 2010, pet. denied). We

find it unnecessary to determine whether Chapter 11 permits a court to make the

vexatious litigant determination sua sponte, and so to apply that holding of In re

Douglas. Unlike the plaintiff found vexatious in Douglas, 333 S.W.3d 279, Turner had

no notice of the trial court’s intention to consider whether he should be declared a

vexatious litigant. He was not afforded a hearing on the issue, and, significantly, no

evidence supported a statutory ground for a vexatious litigant finding.


       Section 11.05(1)-(3) specifies three alternative grounds necessary to a vexatious

litigant determination. At least one must be found. § 11.054(1)-(3).


       In his petition, Turner listed eleven lawsuits he previously had filed, pursuant to

the requirements of Civil Practice & Remedies Code Chapter 14. See § 14.004 (inmate

must file affidavit identifying previously-filed lawsuits).    Solely for purposes of this

                                              5
discussion, we assume the accuracy of Turner’s disclosure of these suits since the trial

court had no other evidence before it for making the determination required by §

11.054(1).4 Of the lawsuits Turner listed, only two were commenced, prosecuted, or

maintained in the seven-year period immediately preceding January 31, 2011. There is

thus no evidence for making a vexatious litigant determination under § 11.054(1).


       Turner’s disclosure of prior lawsuits does not provide evidence he had attempted

to relitigate matters previously determined, so there is no evidence for making a

vexatious litigant determination under § 11.054(2).


       Finally, there is no evidence Turner was declared a vexatious litigant by another

state or federal court. Accordingly, a finding of vexatious litigant is not possible under §

11.054(3).


       A trial court abuses its discretion when it rules without supporting evidence.

Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998). Because the court had before it no

evidence supporting its finding Turner met the requirements of § 11.054 for a vexatious

litigant determination, it abused its discretion by making the determination.          And,

because its order that Turner furnish security was expressly based on its vexatious

litigant determination, we must conclude its order that he furnish security within 120

days also was an abuse of discretion.




       4
         In its amicus brief, the Attorney General contends a review of public records will
demonstrate Turner’s involvement in proceedings additional to those disclosed by his
pleadings. Our appellate review, however, is limited to the appellate record. The only
indication of Turner’s prior lawsuits contained in the record is the disclosure in his
pleadings.
                                             6
       Citing Subchapter B of Chapter 11, the January 31 order concludes with

language enjoining Turner from filing, pro se, any new litigation in Texas without

obtaining the permission of the local administrative judge. The order also directs the

district clerk to forward a copy of the order to the OCA pursuant to § 11.104(a). We

judicially notice that because of the January 31 order Turner now appears on the OCA’s

website as a vexatious litigant subject to a prefiling order.                Available at

http://www.courts.state.tx.us/oca/Vexatious_Litigants.pdf    A prefiling order under §

11.101 and its posting by the OCA under § 11.104 depend on a vexatious litigant

finding, a finding we have determined the trial court properly could not make on this

record.


       Accordingly, we find the trial court abused its discretion in rendering the January

31 order and the June 2 order dismissing Turner’s case for failure to furnish security.


       An abuse of discretion will not constitute reversible error unless it probably

caused the rendition of an improper judgment. See Tex. R. App. P. 44.1(a)(1). We

conclude the trial court’s error in the present case was not harmless. Accordingly, we

vacate its order of January 31, 2011, and the order of June 2, 2011, dismissing Turner’s

case for failure to furnish security.


Frivolous Claim Finding


       As noted, the court signed a second order, also on June 2, 2011, decreeing

Turner’s claims against the defendants “are dismissed, as frivolous, pursuant to Chapter

Fourteen of the Civil Practice & Remedies Code.” This order also was rendered sua

sponte without a hearing. § 14.003 (court may dismiss case as frivolous before service
                                            7
of process); Geiger v. Williams, 2007 Tex. App. Lexis 9662, at *8 (Tex.App--Tyler Dec.

12, 2007, pet. denied) (mem. op.) (citing Gowan v. Tex. Dep’t of Criminal Justice, 99

S.W.3d 319, 323 (Tex.App.--Texarkana 2003, no pet.) (“Neither a hearing nor an

opportunity to respond is required prior to dismissal of an inmate’s lawsuit when the

pleadings are procedurally deficient”)).


       In a suit subject to Chapter 14, an inmate filing an affidavit or unsworn

declaration of inability to pay costs must file a separate affidavit or declaration

describing each pro se lawsuit, other than one coming under the Family Code, he

previously filed by inter alia stating the operative facts for which relief was sought. §

14.004(a)(2)(A). For determining whether a claim is frivolous or malicious, the trial court

may consider whether the claim is substantially similar to a previous claim filed by the

inmate because the claim arises from the same operative facts. § 14.003(b)(4).


       Because Turner’s suit was dismissed as frivolous without a hearing, we review

the trial court’s decision de novo, affirming only if his claims have no arguable basis in

law. Chapa v. Livingston, No. 10-09-0273-CV, 2010 Tex. App. Lexis 6986, at *2-3

(Tex.App.--Waco Aug. 25, 2010, no pet.) (mem. op.). We take as true the allegations of

the pleading; that is, we consider whether, as a matter of law, it states a cause of action

authorizing relief. Scott v. Gallagher, 209 S.W.3d 262, 266-67 (Tex.App.--Houston [1st

Dist.] 2006, no pet.).    A case has no arguable basis in law if it is based on “an

indisputably meritless legal theory,” or incredible or irrational allegations of fact. Minix v.

Gonzales, 162 S.W.3d 635, 637 (Tex.App.--Houston [14th Dist.] 2005, no pet.) (quoting

Gill v. Boyd Distrib. Ctr., 64 S.W.3d 601, 603 (Tex.App.--Texarkana 2001 pet. denied)

                                              8
(quoting Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 104 L.Ed.2d 338

(1992))).


       As noted, Turner listed eleven lawsuits in his pleading. For each, he identified

the parties, the trial court, the judge, the date of filing and date of disposition, the docket

number, and the nature of disposition. He did not, however, state the operative facts of

each case.      Absent this information, determining whether Turner’s claims in the

underlying suit are substantially similar to his previous claims is not possible.            §

14.003(b)(4).   Faced with such pleadings, the trial court could have assumed the

underlying suit is substantially similar to one or more of the suits Turner previously filed

and, therefore, frivolous. Carson v. Walker, 134 S.W.3d 300, 303 (Tex.App.--Amarillo

2003, pet denied) (citing Clark v. Unit, 23 S.W.3d 420, 422 (Tex.App.--Houston [1st

Dist.] 2000, pet. denied)). Because this factor for determining whether Turner’s claim is

frivolous appears on the face of his pleadings, the trial court was not required to resolve

any contested facts and could make its determination as a matter of law without a

hearing. The trial court did not abuse its discretion by dismissing the underlying case

pursuant to Chapter 14.


                                         Conclusion


       We reverse and render judgment vacating the January 31, 2011, vexatious

litigant order in its entirety and the June 2, 2011, order dismissing Turner’s case for

failure to furnish security. Otherwise, we affirm the trial court’s June 2, 2011, order

dismissing the case on the ground that it is frivolous. The clerk of this court shall furnish



                                              9
the OCA a copy of this opinion and the corresponding judgment.            Finally, Turner’s

motion for extension of time to file notice of appeal is dismissed as moot.5




                                                        James T. Campbell
                                                             Justice




       5
        For reasons not apparent from the record, Turner requested an extension of
time to file his notice of appeal. Tex R. App. P. 26.3. Because Turner’s notice of
appeal was filed within thirty days of June 2, it was timely without an extension of time.
Tex. R. App. P. 26.1. We have carried Turner’s motion for extension of time with the
appeal.
                                            10
