                                  NO. 07-11-0195-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL B

                                  OCTOBER 19, 2012

                         ______________________________

                                 LUIS S. LAGAITE, JR.,

                                                            Appellant

                                            v.

                             STEVEN K. MCCOY, ET AL.,

                                                            Appellees

                       _________________________________

            FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;

            NO. 99,500-E; HON. DOUGLAS R. WOODBURN, PRESIDING

                         _______________________________

                               Memorandum Opinion
                         _______________________________

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

      Luis S. Lagaite, Jr. (Lagaite) appeals the dismissal of his lawsuit against Steven

K. McCoy and other prison employees or officials and an order finding him to be a

vexatious litigant. Through four issues, Lagaite contends that the trial court erred by 1)

refusing to amend its judgment and order that the cause be transferred to another court

and 2) dismissing his suit as frivolous and doing so without a hearing. We affirm.
                                       Background

       Lagaite, an inmate and pauper, sued various employees of the prison in which he

was housed for purported retaliation and discrimination. The trial court dismissed the

suit with prejudice after concluding that it was “frivolous, or malicious as described by

Chapter Fourteen of the Civil Practices & Remedies Code.” Thereafter, Lagaite filed a

motion entitled “Plaintiffs Strong Objection to the Court’s Bias and Prejudicial Order and

Dismissal Hereby Motion of Amend Such Order.” The relief sought consisted of

amending the order of dismissal with prejudice and substituting in its stead an order

transferring the cause from the 108th Judicial District Court to the 251st Judicial District

Court of Potter County.     He believed that suit should have been filed in the 251st

because there pended another civil action he initiated (Cause No. 97601-C) involving

similar complaints against prison employees. No action was taken by the trial court to

alter its final decree.

                                          Issues

       We first address the allegation that the trial court abused its discretion by failing

to transfer the proceeding. To the extent that Lagaite insists that the suit was nothing

more than an effort to amend his original petition in 97601-C and was erroneously filed

as a separate suit, we note the following. First, it was not labeled an amended petition,

as required by rule 64 of the Texas Rules of Civil Procedure.          Instead, he titled it

“Petition for Writ of Mandamus Plaintiffs [sic] Original Petition For Retaliation, Racism,

Harrasment [sic] Conspiracy, with Malice, and Request for the Enforcement of the

Administrative Procedure Act and American Correction Association (A.C.A.).”

(Emphasis added). Second, he left a blank in the style of the cause for the district clerk



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to insert a cause number despite knowing the cause number of the suit pending in the

251st Judicial District. Similarly, the particular judicial district in which the suit was to be

filed was also left blank. Again, he knew the judicial district in which his prior suit was

filed. Fourth, his cause of action here involved purported misconduct transpiring after

he filed 97601-C. Fifth, in his letter to the clerk asking her to file the pleading, he again

called the document a “true original” petition and asked her to “serve and process” it

upon the defendants. Sixth, 97601-C was listed as a separate suit in his “Affidavit in

Support of Previous Lawsuits” attached to his pleading. If the current action was meant

to be part of a prior suit, there would be no reason to mention the prior suit in his list.

Simply put, each of these indicia indicate that the proceeding before us was intended to

be treated as independent of 97601-C. So, we reject the notion that it was nothing

more than an attempt to amend a pleading in another suit.

       As for the suggestion that the trial court erred in failing to sua sponte transfer this

cause to the 251st Judicial District, we note that suits may be transferred from one

district court to another in the same county. TEX. GOV. CODE ANN. §74.121(a) (West

Supp. 2012). However, the judge of the court receiving the transfer must agree to it. Id.

Lagaite cites us to nothing of record indicating that the judge of the 251st agreed to what

he asked. Nor did our own review of the record disclose such. Thus, we cannot say he

was entitled to a transfer.

       As for the allegation that the trial court erred in dismissing his petition, Lagaite

does not explain why his complaints were not frivolous or malicious. Instead, he simply

concludes that it is wrong not to expect the government to follow “appropriate

procedures” when it decides to “deprive any persons of liberty, life, or property.”



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Nowhere does he describe the property or liberty interest affected or why any purported

property or liberty interest he contemplated as having was a lawfully recognized

interest. So, without him explaining why the trial court erred, we cannot say that he

carried his appellate burden to establish error.

       And, to the extent that his contentions may be interpreted as suggesting that the

trial court was obligated to convene a hearing before dismissing the cause, he is

mistaken. A prisoner is not entitled to personally appear. Hamilton v. Pechacek, 319

S.W.3d 801, 808 (Tex. App.–Fort Worth 2010, no pet.). At best, the opportunity for a

hearing entails the ability to present evidence to support his complaint.     Id; Hall v.

Treon, 39 S.W.3d 722, 724 (Tex. App.–Beaumont 2001, no pet.) (holding there is no

abuse of discretion in failing to hold a permissive hearing under Chapter 14 of the Civil

Practice and Remedies Code when an inmate has failed to demonstrate there is

evidence he would have presented had a hearing been held). Furthermore, Lagaite

cites us to no evidence of record or evidence of any effort to present relevant evidence

supporting his complaints. So, we cannot say that the trial court erred in acting without

a hearing.

       Finally, we find no effort to attack the order categorizing him as a vexatious

litigant. Therefore, he has waived any complaint regarding that order. Washington v.

Bank of New York, 362 S.W.3d 853, 855 (Tex. App.Dallas 2012, no pet.).

       Accordingly, the order of dismissal and the order finding Lagaite a vexatious

litigant are affirmed.

                                                   Brian Quinn
                                                   Chief Justice



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