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Opinion issued August 31, 2010
 

 
 
 
                                                                                                                                                                                                                                                                                                                                                                        
 
 
 
In The
Court of Appeals
For The
First District of Texas
 


















 

NO. 01-08-00542-CV
 





















 

In
RE Ralph o. Douglas, Appellant
 
 

On Appeal from the 127th
District Court
Harris County, Texas
Trial Court Cause No. 2006-39052
 
 

opinion
 
Appellant Ralph O. Douglas[1]
filed a petition for bill of review seeking to set aside a judgment entered
against him in a breach of contract suit he filed against Jimmie and Christine
Jones.  Because he is an inmate and he filed
an affidavit or unsworn declaration of inability to pay costs, Douglas’ lawsuit
was, and is, subject to Chapter 14 of the Civil Practice and Remedies Code,
which addresses inmate litigation.[2]  On May 23, 2008, the trial court issued orders
(1) declaring Douglas a vexatious litigant under Chapter 11 of the Texas Civil
Practice and Remedies Code and (2) dismissing his petition for bill of review pursuant
to Chapter 14 of the Code as frivolous and malicious inmate litigation.  Douglas filed
a notice of appeal and an affidavit of inability to pay costs.
We affirm.
BACKGROUND
This case
arises out a petition for bill of review filed by Douglas with respect to two
consolidated cases he filed against the defendants in this case in 2001, Jimmie
W. and Christine Jones.  The trial court
dismissed the petition for bill of review for want of prosecution; it declared
Douglas a vexatious litigant under section 11.101 of the Texas Civil Practice
and Remedies Code, reciting his litigation history and observing that he had
previously been declared a vexatious litigant; and it dismissed his appeal as a
frivolous and malicious appeal brought by an inmate in violation of section
14.003 of the Texas Civil Practice and Remedies Code. 
A.   Proceedings
1.     Douglas’s criminal conviction
According
to the trial court’s order, incorporated in the record of this case, Jones, a
person with an eighth grade education, was looking for a lender to help him
avoid foreclosure on his home at 11515 Lockgate Lane
in Houston, Texas.[3]
 He contacted Douglas, who told him that
he could assist him in obtaining a loan. 
While assisting Jones to fill out several “loan” forms, Douglas had
Jones sign a warranty deed.  Jones later
testified that he did not want to sell his house, that he did not know what a
warranty deed was, and that he would not have signed the deed if he had
understood that Douglas intended to secure a loan in his own name using the
Joneses’ house as collateral. 
Subsequently, Douglas attempted to evict Jones and later deeded the
property to another person.
In August
2002, a jury convicted Douglas of theft of property in the aggregate amount of
between $1000 and $200,000 and, due to enhancement for a prior theft, sentenced
him to life in prison and to a $10,000 fine. 
The Fourteenth Court of Appeals affirmed the judgment on August 29, 2002,
and the Court of Criminal Appeals denied Douglas’s petition for review.  The defendants in the instant case, Jimmie W.
Jones and Christine Jones, were victims of the theft for which Douglas is
incarcerated.
2. Douglas’s 2001 consolidated suits against the Joneses and 2004
appeal
 
The 127th
Judicial District Court of Harris County became involved in Douglas’s dispute
with the Joneses in August, 2001, when, as an inmate in the Texas Department of
Criminal Justice—Institutional Division (TDCJ), Douglas filed a pro se action in
forma pauperis against the Joneses in trial court
cause number 2001-43967.  Jones
subsequently filed a second case against the Joneses, No. 2001-47586, on
September 17, 2001, and the trial court consolidated the cases.  Douglas’s petition indicated he was suing the
Joneses for breach of contract and fraud regarding the property at “11515
Lockwood (sic)”.  After
determining that the United States Bankruptcy Court had already considered the
contested issues between the parties, the 127th District Court “dismissed the
cases with prejudice as to any further suit by Mr. Douglas against Jimmy W. and
Christine Douglas” on August 12, 2004. 
On January 13, 2005, the Fourteenth Court of Appeals dismissed Douglas’s
appeal for want of prosecution.  
3. Douglas’s 2006 petition
for bill of review of the consolidated cases
On June 19,
2006, Douglas filed a petition for bill of review in the trial court, seeking again
to set aside the trial court’s August 12, 2004 judgment.  In his petition, Douglas contended he was
entitled to a bill of review because he had a meritorious claim for breach of
contract against the Joneses which he was prevented from raising in his 2004 attempted
appeal of the consolidated cases due to official mistake, i.e., the district clerk’s alleged failure to serve him a copy of
the judgment.  He also paid the filing
fee of $197 and filed an affidavit of inability to pay costs.  Douglas did not serve with citation the
defendants named in his petition for bill of review.  Therefore, they never entered an appearance
in this case.  
On October
4, 2006, Douglas filed “Plaintiff’s No-Evidence Motion for Summary Judgment” in
the district court, claiming that the trial court had held a hearing and had dismissed
his August 27, 2001 petition against the Joneses on August 12, 2004 “for
reasons unknown.”  Douglas reiterated his
claims of breach of contract against the Joneses, alleged that adequate time
for discovery had passed, and sought summary judgment against them.
On January
31, 2007, the trial court notified Douglas that his bill of review was
scheduled for dismissal for want of prosecution on March 2, 2007 unless he
could show good cause why it should be retained.  The notice stated, “This case is eligible
because our records indicate that the referenced cause has no service and or no
answer(s).”  
On February
8, 2007, after receiving the January 31, 2007 notice from the district court,
Douglas filed a “Motion to Retain” in that court, stating that on receiving his
declaration in forma pauperis for the filing of the
bill of review, “the district clerk inadvertently did not include the fee for
the constable to serve defendants with the citation.”  He attached an inmate’s declaration and asked
the court to allow him “to request the clerk to serve defendants the citation”
and to retain the cause on its docket. 
On April
22, 2008, the trial court again sent a notice to Douglas stating that, on May
16, 2008, it would sua sponte
consider dismissing his case “for want of prosecution or under Chapter 14 of
the Civil Practice and Remedies Code” and that “[a]t that time, the Court will
also determine whether Ralph O. Douglas, the plaintiff in this matter, should
be declared a vexatious litigant pursuant to Chapter 11 of the Texas Civil
Practice and Remedies Code.” 
On May 23,
2008, the trial court issued orders (1) dismissing Douglas’s cause of action as
“malicious, frivolous, without basis in law and . . . brought for the purpose
of harassing the defendants” and, therefore, subject to dismissal under Chapter
14 of the Texas Civil Practice and Remedies Code, which prohibits the filing of
such suits by inmates who have filed affidavits of indigency,
and (2) finding him to be a vexatious litigant and prohibiting him from
filing any new pro se litigation in Harris County, Texas without first being
granted permission to file by the local administrative judge.  The order notified him that he was “subject to
punishment by contempt if he fails to obey this order.”
B.   The Trial Court’s Order Appealed From
1.     The trial court’s order finding Douglas to be a
vexatious litigant
The trial
court’s order finding Douglas to be a vexatious litigant was issued pursuant to
the court’s authority under Chapter 11 of the Texas Civil Practice and Remedies
Code to declare a litigant vexatious on its own motion.  Tex.
Civ. Prac. & Rem. Code Ann. § 11.101
(Vernon 2002). The order states:
On January 13, 2005, the
Fourteenth Court of Appeals dismissed Mr. Douglas’s appeal for want of
prosecution.  Not to be deterred, Mr.
Douglas filed this suit against Jimmie and Christine Jones, on June 19, 2006.
 
It has come to the Court’s
attention that, since his conviction, Mr. Douglas has also sued his other
victims—Linda Porter, Hattie Mae Willis, and Vernon King[—]multiple
times.  He has also sued the title
company, American Title Company, and the lending institutions he involved in
his schemes, Washington Mutual, Anson Financial, Inc., Quaker Home Financial
Services, Bank of America, and Unity National Bank. According to Westlaw, Mr.
Douglas has filed at least nineteen appeals and mandamuses involving his
victims and these assorted lending institutions since 2003.  Once he became an inmate, Douglas has
continuously filed malicious, frivolous law suits against his victims, which
have been repeatedly determined to have no basis in law.  The Court cannot allow litigants to abuse the
judicial system and harass their victims from the security of a prison
cell.  The Court Finds that Douglas is
such a litigant and his conduct is subject to review and action by this Court.
 
Having
noted that it had the authority on the defendant’s motion or sua sponte to designate a party
as a vexatious litigant under section 11.101 of the Civil Practice and Remedies
Code, the court referenced the standard for a court’s finding a person to be a
vexatious litigant under section 11.054 of the Code, namely “if there is not a reasonable probability that he
will prevail in litigation and the
party has a history of filing or repeatedly re-litigating unsuccessful or
frivolous suits.”  See id. § 11.054 (Vernon
2002).  As grounds for its determination
that there was not a reasonable probability that Douglas would prevail, the
court recited the determination by the 179th District Court, 
when convicting him of theft, .
. . that Ralph O. Douglas did not own the property at 111515 Lockridge Lane [sic]
and that any fraud in the transaction was attributable to Douglas, not the
Joneses.  Later, the U.S. Bankruptcy
Court determined that the Joneses owned the property and that Douglas had no
valid claim.  Finally, this Court issued
its own final judgment in this matter on August 12, 2004. 
 
See id. § 11.054(2)(B).
After
reviewing the record and all pleadings in the case, the trial court found that
there was no reasonable probability that Douglas would prevail in the action,
and it further found that he had commenced “at least five pro se actions” that had been finally determined against him, or
permitted to remain pending at least two years without trial, or determined by a
trial or appellate court to be frivolous. 
See id. § 11.054(1).  The
court also found (1) that Douglas was “re-litigating or . . . attempting to
re-litigate pro se, the validity of
the determination against him in favor of Jimmie W. and Christine Jones” and
(2) “attempting to re-litigate the cause of action and/or any issue of fact or
law against Jimmy W. and Christine Jones.” 
See id. § 11.054(2).  The court further found “that Ralph O.
Douglas has previously been declared a vexatious litigant by a state court in
an action based on the same or substantially similar facts.”  See id.
§ 11.054(3).  Therefore, “[a]fter reviewing the record and considering the motions,” the
trial court found Douglas to be a vexatious litigant.  The order attached a list of 22 opinions or
final orders issued in suits filed by Douglas against the defendants in this
suit and against other persons and entities related to the events described in
the trial court’s order. 
The court
ordered Douglas “prohibited from filing in
propria persona any new litigation in Harris
County, Texas without first being granted permission to file by the local
administrative judge,” with such permission to be granted “only if the
litigation appears to have merit and is not filed for purposes of harassment or
delay,” and it ordered that “such permission may also be conditioned on the
furnishing of a security.”  It notified
Douglas that “he is subject to punishment for contempt if he fails to obey this
order.”  
2. The trial court’s order dismissing Douglas’s suit as frivolous and
malicious
 
In its May
23, 2008 order, the trial court also found, pursuant to Chapter 14 of the Civil
Practice and Remedies Code governing indigent inmate litigation filed “in propria persona,” or pro se, that Douglas was currently an
inmate and had filed an affidavit of indigency in the
proceeding and that no hearing was necessary to determine whether his claims
should be dismissed.  See id. § 14.003 (Vernon 2002).  It further found that Douglas’s suit was
“malicious, frivolous, without basis in law and . . . brought for the purpose
of harassing the defendants.”  See id. § 14.003(a)(2).
 It, therefore, ordered his cause of action
dismissed pursuant to Chapter 14 of the Texas Civil Practice and Remedies Code,
which permits dismissal of “frivolous or malicious” claims filed by inmates who
file affidavits of indigency.  See id.
 Finally, it ordered a certified copy of
the order sent to the Executive Director, TDCJ, and the Chair of the Texas
Board of Pardons and Paroles.  See id. § 14.003(e).
C.   Douglas’s Appeal to this Court
On June 19,
2008, Douglas filed a notice of appeal in this Court and an affidavit of indigency in the trial court pursuant to the inmate
litigation statute, Chapter 14 of the Texas Civil Practice and Remedies Code,
and Rule 20.1 of the Texas Rules of Civil Procedure, governing civil cases
filed by indigents.  See id. § 14.002; Tex.
R. App. P. 20.1.  The record from
the trial court also reflects that Douglas did not file an affidavit
identifying his previous filings in propria persona,
describing each, stating the operative facts, identifying each party, and
stating the result and, for each suit dismissed as frivolous or malicious,
stating the date of the final order affirming the dismissal and attaching a
certified copy of his trust account statement, as also required by Chapter 14.  See
Tex. Civ. Prac.
& Rem. Code Ann. § 14.004. 
The district clerk requested that the county attorney file a contest to
the affidavit of indigency.  That contest was filed on June 25, 2008, but
the trial court did not hold a hearing on the contest.  Therefore, on February 20, 2009, this Court,
in a memorandum order, deemed the statements in the affidavit of indigency true and ordered that Douglas be permitted to
proceed without payment of costs pursuant to Rule 20.1(i)(4).
See Tex.
R. App. P. 20.1(i)(4).
Douglas
appeals both the trial court’s dismissal of his petition for bill of review as
frivolous and malicious and the trial court’s vexatious litigant finding. He contends
the trial court held a hearing on August 12, 2004 in the consolidated suits he
had brought against the Joneses and then dismissed the suit “for reasons
unknown.”  He contends that the district
clerk committed “official mistake” by failing to send him a copy of the signed
judgment.  Despite claiming never to have
received a copy of the judgment, Douglas nevertheless avers on appeal that he filed a Motion for New Trial on August 31,
2004.  He states that, after
the motion was denied by operation of law, he filed a notice of appeal on
November 8, 2004.  He admits that on
January 18, 2005, the Fourteenth Court of Appeals dismissed his appeal of the
dismissal of his petition for review for want of prosecution because he failed
to pay for the clerk’s record.
DISCUSSION
Douglas
raises four issues on appeal: (1) whether the trial court abused its discretion
when it declared him to be a vexatious litigant under Chapter 11 of the Texas
Civil Practice and Remedies Code; (2) whether the trial court’s vexatious
litigant finding is legally and factually sufficient; (3) whether the trial
court abused its discretion in dismissing his petition pursuant to Chapter 14
of the Civil Practice and Remedies Code; and (4) whether the judgment should be
reversed due to judicial misconduct.
A.  
Vexatious Litigant Finding
Under Chapter 11, Texas Civil Practice And Remedies Code
 
In his first and second issues,
Douglas argues that the evidence is insufficient to support the trial court’s finding
that he is a vexatious litigant because (1) the trial court’s April 21, 2008
notice of its intent to declare him a vexatious litigant was untimely filed
under section 11.51 of the Civil Practice and Remedies Code because his
petition for bill of review was filed on June 19, 2006; (2) the trial court did
not hold a hearing required by section 11.053 of the Code before declaring him
a vexatious litigant; and (3) in violation of section 11.054(1) of the Code,
the trial court failed to find that at least five of Douglas’s previously filed
19 prior cases “had commenced in the seven-year period immediately preceding
the date that the trial court filed its vexation-litigant motion,” and had been
either finally determined adversely to him or permitted to remain pending for
at least years without having been brought to trial or hearing or determined by
a trial or appellate court to be frivolous or groundless.  Douglas contends that the trial court,
therefore, abused its discretion in finding him to be a vexatious litigant.
1. Standard of Review
Chapter 11 of the Texas Civil
Practice and Remedies Code addresses vexatious
litigants—persons who abuse the legal system by filing numerous, frivolous lawsuits.  Tex.
Civ. Prac. & Rem. Code Ann. §§ 11.001–11.056 (Vernon 2002).  We review a trial court’s declaration of a vexatious
litigant under an abuse-of-discretion standard.  Douglas
v. Am. Title Co., 196 S.W.3d 876, 879 (Tex. App.—Houston [1st Dist.] 2006,
no pet.); see Tex. Civ. Prac.
& Rem. Code Ann. §§ 11.054–.056. The test for an abuse of discretion
is whether the court acted arbitrarily or unreasonably and without reference to
any guiding rules and principles.  Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42
(Tex. 1985). 
          2. Construction of
the Vexatious Litigant Statute
Douglas’s
first, second, and third issues requires us to construe the provisions of
Texas’s vexatious litigant statute, chapter 11 of the Civil Practice and
Remedies Code.
Section 11.101 of the statute,
under which Douglas was declared a vexatious litigant, provides,
(a)  A court may, on its own motion or the motion of any party, enter an
order prohibiting
a person from filing, in propria persona, a new
litigation in a court of this state if
the court finds, after notice and hearing as provided by Subchapter B [sections
11.051–.057] that 
 
(1) the person is a vexatious
litigant; and 
 
(2) the local administrative judge
of the court in which the person intends to file the litigation has not granted
permission to the person under Section 11.102 to file the litigation.
 
Tex. Civ. Prac. & Rem.
Code Ann. § 11.101(a) (emphasis added). 
          The
only hearing provided for in Subchapter B, sections 11.051–.057 of the statute,
is that referenced in section 11.053:
(a)
On receipt of a motion under Section
11.051, the court shall, after notice to all parties, conduct a hearing to
determine whether to grant the motion.
 
(b) The court may consider any
evidence material to the ground of the motion, including:
 
(1) written or oral evidence; and 
(2) evidence presented by witnesses or by affidavit.
Id. § 11.053 (emphasis
added).
          Section
11.051, referenced in section 11.053, in turn provides:
In
a litigation in this state, the defendant may, on or before the 90th day after the date the
defendant files the original answer or makes a special appearance, move the court for an order:
 
(1) determining that the plaintiff is a vexatious litigant; and
(2) requiring the plaintiff to furnish security.
Id. § 11.051 (emphasis
added).
The rules
of statutory construction require that “[w]ords and
phrases shall be read in context and construed according to the rules of grammar
and common usage.”  Tex. Gov’t Code Ann. § 311.011 (Vernon
2005).  Thus, courts
“construe [a] statute’s words according to their plain and common meaning
unless a contrary intention is apparent from the context, or unless such a
construction leads to absurd results.”  FKM P’ship Ltd. v.
Bd. of Regents of the Univ. of Houston Sys., 255 S.W.3d 619, 633 (Tex.
2008).  Courts should not read a statute
to create an absurd result.  Univ. of Tex. Sw. Med. Ctr.
v. Loutzenhiser, 140 S.W.3d 351, 356 (Tex. 2004).
          In construing a statute, whether or
not it is considered ambiguous, a court considers, among other things, the
“object sought to be attained,” the “circumstances under which the statute was
enacted,” and the “consequences of a particular construction.”  Tex. Gov’t Code Ann.
§ 311.023 (Vernon 2005); Osterberg v. Peca, 12 S.W.3d 31, 37 (Tex. 2000).  The court’s primary aim is to give effect to
the Legislature’s intent.  Osterberg, 12 S.W.3d at 37.  It
is presumed that the entire statute is intended to be effective and that a just
and reasonable result is intended.  Tex. Gov’t Code Ann. § 311.021 (Vernon 2005); FKM P’ship Ltd., 255 S.W.3d at 633.
Here, section 11.101 of the
Code expressly states that “[a] court may, on
its own motion or the motion of any party, enter an order prohibiting a
person from filing, in propria persona, a new
litigation . . . if the court finds, after notice and hearing as provided by
Subchapter B [sections 11.051–.057] that . . . the person is a vexatious
litigant and . . . the local administrative judge . . . has not granted
permission to the person under Section 11.102 to file the litigation.”  Tex.
Civ. Prac. & Rem. Code Ann. § 11.101(a)
(emphasis added).
Moreover, the evident
purpose of the statute is to make it possible for courts to control their
dockets rather than permitting them to be burdened with repeated filings of
frivolous and malicious litigation by litigants without hope of success while,
at the same time, providing protections for litigants’ constitutional rights to
an open court when they have genuine claims that can survive the scrutiny of
the administrative judge and the posting of security to protect
defendants.  See Tex. Civ. Prac. & Rem. Code Ann. § 11.102 (providing that
local administrative judge may grant permission to person found to be vexatious
litigant under section 11.101 to file ligation only if it appears to judge that
litigation “has merit” and “has not been filed for the purposes of harassment
or delay,” and permitting administrative judge to require posting of security
for benefit of defendant).
          The dissent,
however, emphasizes the language in section 11.101(a) which states that a court
may issue an order prohibiting a litigant from filing new litigation if the
court finds, “after notice and hearing as
provided by Subchapter B [sections 11.051-.057],” that the person is a
vexatious litigant and the local administrative judge has not granted
permission for the filing.  Slip Op.
at 3–4 (quoting Tex. Civ. Prac. & Rem. Code Ann. § 11.101).  The dissent reasons that, because “[t]he only
notice and hearing provisions in Subchapter B are set forth in section 11.053, and
section 11.053 is contingent upon the defendant’s timely request for a
vexatious litigant order pursuant to section 11.051,” the statute requires “the
defendant’s request within ninety days of filing the original answer is a
statutory prerequisite for any vexatious litigant declaration.”  Slip Op. at 4 (citing cases in
which vexatious litigant claims were dismissed for failure of defendant to file
motion within 90 days).[4]  
The dissent further observes
that, “[i]n the present case, Douglas’ petition for
bill of review was dismissed prior to service of citation, thus the named
defendants were never provided notice to enter an appearance in this suit, much
less file a section 11.051 motion with the court.” 
Slip Op. at 4–5.  Because no
defendant was served, no defendant appeared in the case.  Therefore, necessarily, no defendant moved
within 90 days of the filing of Douglas’s petition for bill of review for an
order declaring Douglas a vexatious litigant; no notice of such a motion was
given to all parties; and no hearing was held on such a motion at which all
parties could provide evidence to support the motion.  See
Tex. Civ. Prac.
& Rem. Code Ann. §§ 11.051, 11.053.  Consequently, the hearing requirement in
sections 11.051–11.057 of the Code was not satisfied.  Because it was not, the dissent would hold
that “the trial court abused its discretion when it declared
Douglas a vexatious litigant because the trial court did not comply with the
mandatory statutory scheme.”  Slip. Op. at 5.  We
disagree.
The dissent’s conclusion that
the statute does not authorize the trial court to raise the vexatious litigant
issue sua sponte is directly
contrary to the explicit language and plain meaning of section 11.101(a), which
states, “A court may, on its own motion or the motion of any party, enter an
order prohibiting a person from filing, in propria
persona, a new litigation . . . if the court finds, after notice and hearing as
provided by Subchapter B, that . . . the person is a vexatious litigant.”  Tex.
Civ. Prac. & Rem. Code Ann. §
11.101(a).  It thus renders that language
superfluous and violates not only the plain meaning rule but the requirements
of statutory construction that courts consider the entire statute and the purpose for which it was intended. Tex. Gov’t Code Ann. § 311.021; FKM P’ship Ltd.,
255 S.W.3d at 633.  
Moreover, by reading “notice
and hearing as required by Subchapter B” as requiring that all motions filed under the vexatious litigant statute must be
filed by defendants—never by the
court on its own motion—and filed within 90 days of the date the litigation is
filed, as provided in section 11.051, the dissent gives an unreasonable
construction to section 11.101(a) that renders parts of the statute superfluous
and defeats a primary purpose of the statute—namely, to recognize a statutory
(as well as an inherent) right of courts to control their own dockets by
finding plaintiffs to be vexatious litigants in appropriate cases in which the
court’s own records support the findings. 
It, therefore, leads to unreasonable results not intended by the
Legislature.
An
interpretation of section 11.101 that requires a motion by a defendant in order
for a litigant to be found to be a vexatious litigant, and prohibits courts
from finding that a litigant is vexatious on their own motion, not only defeats
the clear intent of the Legislature but denies the trial court not only the
statutory but the inherent right to control its own docket, including the
inherent right to protect judicial resources from waste in frivolous and
vexatious litigation, defeating the object of the statute.  See
Tex. Gov’t
Code Ann. §§ 311.021, 311.023; Osterberg, 12 S.W.3d at 37 (stating that court’s primary aim
is to give effect to Legislature’s intent); Leonard
v. Abbott, 171 S.W.3d 451, 452 (Tex. App.—Austin 2005, pet. denied) (“The
purpose of chapter eleven is to restrict frivolous and vexatious
litigation.  It does not authorize courts
to act arbitrarily, but permits them to restrict a plaintiff’s access to the
courts only after first making specific findings that the plaintiff is a
vexatious litigant based on factors that are closely tied to the likelihood
that the incident litigation is frivolous.”); Devoll v. State, 155 S.W.3d 498, 501 (Tex. App.—San Antonio 2004, no
pet.) (stating statute “provides a framework for courts and attorneys to curb
vexatious litigation”); see also Univ. of
Tex. v. Morris, 344 S.W.2d 426, 428 (Tex. 1961) (holding, in pre-statutory
case, that courts have equitable power to prevent vexatious litigation); Birdo v. Holbrook, 775 S.W.2d 411, 412 (Tex.
App.—Fort Worth 1989, writ denied) (holding, in pre-statutory case, that
“courts have the inherent power to protect the administration of justice from pro se plaintiffs who divert limited
judicial resources to the handling of frivolous or harassing suits”).  On the dissent’s reading of the vexatious
litigant statute, even if, as here, the plaintiff has been previously found to
be a vexatious litigant and the court’s own records bear out a long history of
frivolous and malicious litigation filed by the plaintiff, the court cannot
issue an order on its own motion preventing the plaintiff from filing new
litigation without permission from the local administrative judge, as the plain
reading of section 11.101 contemplates. 
          Douglas has been litigating against
the Joneses since 2001, and he has been litigating this particular suit—among
many others—ever since the judgment entered against him in 2004, without
prosecuting his 2004 appeal and without ever serving the Joneses with his 2006 petition
for bill of review.  The dissent’s
reading of the vexatious litigants statute as an act that operates to bar
future litigation against a vexatious litigant only upon a defendant’s
appearing in the court, even if never
served, and filing a motion within 90 days of the filing of a suit—and even
if the plaintiff’s name appears on a vexatious litigants list and the court’s
own records are replete with previous cases filed by the plaintiff in propria persona—has the perverse effect of rewarding Douglas’s frivolous and
malicious actions, including his failing to prosecute his appeal in the
Fourteenth Court of Appeals, then his filing this petition for bill of review
in the district court, failing to serve the defendants with that petition,
filing a motion for summary judgment against them, and prosecuting his appeal
of the district court’s vexatious litigant finding through this 2008 appeal,
with its many subsequent filings, to this Court.  By never serving the defendants and continuing
to file in an ongoing suit—now nine
years old—Douglas would be enabled by the language of the vexatious litigant statute
as the dissent construes it not only to continue to absorb judicial resources
(which a declaration of the plaintiff as a vexatious litigant statute would
not, in any event, prevent) but to thwart the future operation of the act
against that litigant.  
          We conclude for the foregoing reasons
that the trial court did not err in declaring Douglas a vexatious litigant on
its own motion pursuant to section 11.101(a) of the vexatious litigant
statute.  Assuming, however, that section
11.101(a) requires notice to the parties and a hearing in all cases, we hold
that the trial court’s failure to hold a hearing was harmless under the
circumstances of this case.  The only
“party” was Douglas himself and he was given notice on April 22, 2008 by the
trial court of the court’s intent to find him a vexatious litigant sua sponte and to dismiss his
case “for want of prosecution or under Chapter 14 of the Civil Practice and
Remedies Code” on May 16, 2008.  See Yilmaz v.
McGregor, 265 S.W.3d 631, 637 (Tex. App.—Houston [1st Dist.] 2008, pet.
denied) (“To be a ‘party’ to a lawsuit, one generally must be named in the
pleadings and either be served, accept or waive service, or make an appearance.
 Merely being named in a petition as a
defendant does not make one a ‘party’ to the lawsuit.”).  The court’s order finding Douglas to be a
vexatious litigant and dismissing his case as “malicious and frivolous without
any basis in law and . . . brought for the purpose of harassing the defendants”
issued May 23, 2008.  See Dueitt v.
Arrowhead Lakes Prop. Owners, Inc., 180 S.W.3d 733, 740–41 (Tex. App.—Waco
2005, pet. denied) (holding that trial court’s failure to hold hearing pursuant
to subchapter B of Chapter 11 of Civil Practice and Remedies Code is subject to
harm analysis under Texas Rule of Appellate Procedure 44.1(a)).
Error
requires reversal if it probably caused the rendition of an improper judgment
or probably prevented appellant from properly presenting his case to the court
of appeals.  Tex. R. App. P. 44.1(a); Dueitt, 180
S.W.3d at 741.  Douglas did not
object in the trial court to the failure to hold a hearing, nor did he advise
the trial court of any evidence he would have presented at a hearing.  Douglas has failed to show that he suffered
any harm from being subjected to a vexatious litigant finding and pre-filing
order that is substantively identical to prior vexatious litigant findings and
pre-filing orders applicable to him.  See Tex.
R. App. P. 44.1(a); Dueitt, 180 S.W.3d at 741; cf. 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 permissive hearing under Chapter 14
of Civil Practice and Remedies Code when inmate has failed to demonstrate there
is evidence he would have presented had hearing been held).
We hold,
therefore, that any error in the trial court’s failure to hold a hearing before
finding Douglas to be a vexatious litigant was harmless.
                   3. Review of the Trial Court’s Vexatious
Litigant Finding
          The
trial court’s May 23, 2008 order finding Douglas to be a vexatious litigant
tracks the requirements for such a finding under the statute.  Section 11.054 of the Civil Practice and
Remedies Code sets out three alternative bases upon which a court may find a
plaintiff to be a vexatious litigant, only one of which references the motion
of a defendant but all of which the trial court’s order in this case tracks:
A court may find a plaintiff a vexatious litigant if
the defendant shows that there is not a reasonable probability that the
plaintiff will prevail in the litigation against the defendant and that:
 
(1)  the
plaintiff, in the seven-year period immediately preceding the date the
defendant makes the motion under Section 11.051, has commenced, prosecuted, or
maintained in propria persona at least five
litigations other than in a small claims court that have been:
 
(A)
finally determined adversely to the plaintiff;
 
(B)                       
 permitted to remain pending at least two years
without having been brought to trial or hearing; or 
 
(C)                       
 determined by a trial or appellate court to be
frivolous or groundless under state or federal laws or rules of procedure;
 
(2) after a litigation has been finally
determined against the plaintiff, the plaintiff repeatedly relitigates
or attempts to relitigate, in propria
persona, either:
 
(A) the validity of the
determination against the same defendant as to whom the litigation was finally
determined; or 
 
(B)                       
 the cause of action, claim, controversy, or
any of the issues of fact or law determined or concluded by the final
determination against the same defendant as to whom the litigation was finally
determined; or
 
(3) the plaintiff has previously been declared to be
a vexatious litigant by a state or federal court in an action or proceeding
based on the same or substantially similar facts, transition, or occurrence.
 
Tex. Civ. Prac.
& Rem. Code Ann. § 11.054.
Section 11.055 of the
vexatious litigant statute provides for the court’s ordering the plaintiff to
furnish security “for the benefit of the moving defendant” if “after hearing
the evidence on the motion, [it] determines that the plaintiff is a vexatious litigant.”  Tex.
Civ. Prac. & Rem. Code Ann. § 11.055
(Vernon 2002).  Sections 11.056 and
11.057 provide for dismissal for failure to furnish security and for the moving
defendant to have recourse to the security furnished by the plaintiff if the
litigation is dismissed on the merits.  Id. § 11.056–.057 (Vernon
2002).
          Although in all cases under the
vexatious litigant statute the defendant must show “that there is not a
reasonable probability that the plaintiff will prevail in the litigation
against the defendant,” only one of the three alternative grounds
for finding a plaintiff to be a vexatious litigant set out in section 11.054
must be proved in addition to that showing.  See
Douglas, 196 S.W.3d at 880 (stating, on defendant’s motion to declare
Douglas vexatious plaintiff, that “in addition to the first requirement that
there not be a reasonable probability that the plaintiff will prevail in the
litigation against the defendant, the vexatious-litigant statute has a second
requirement that the defendant prove one of three grounds before a trial court
can declare a plaintiff a vexatious litigant”); Nell Nations Florist v. Vanguard Underwriters Ins. Co., 141 S.W.3d
668, 670 (Tex. App.—San Antonio 2004, no pet.) (holding
that “plain language” of section 11.054 “allows a trial court to find a
litigant vexatious if she either
‘repeatedly relitigates’ or ‘attempts to relitigate’ a matter that
has been finally determined against her”).
          Subsection (1) applies when a moving defendant
shows that the plaintiff has commenced, prosecuted, or maintained in propria persona, in the seven years immediately preceding
the date of his motion under section 11.051, at least five litigations that are
adverse to himself, or permitted to remain pending at least two years, or
determined to be frivolous or groundless. 
See Tex. Civ. Prac. & Rem. Code Ann.
§ 11.054(1).
          Subsection (2) applies whenever a
plaintiff attempts to relitigate, in propria persona, after litigation has been finally
determined against him, either (a) “the validity of the determination against
the same defendant” or (b) “the cause of action, claim, controversy, or any of
the issues of fact or law determined or concluded by the final determination
against the same defendant.”  Id. § 11.054(2); Nell Nations Florist, 141 S.W.3d at 670–71 (affirming dismissal
with prejudice of “bill of review” filed by litigant who was attempting to relitigate in second suit “‘the cause of action, claim,
controversy, or any of the issues of fact or law determined or concluded by the
final determination against the same defendant’ . . . [that] satisfied
one of the permissible statutory criteria of a vexatious litigant,” and who was
found to be vexatious litigant by trial court and failed to post bond required
by vexatious litigants statute).  
          Subsection (3) applies whenever a
plaintiff has been declared to be a vexatious litigant “on the same or
substantially similar facts, transition [sic],
or occurrence.”  Tex. Civ. Prac. & Rem. Code Ann.
§ 11.054(3).
          In its 2008 order in this case finding
Douglas, yet again, to be a vexatious litigant and dismissing his suit as
frivolous and malicious, the trial court traced the history of Douglas’s
litigation against the Joneses and the rulings against him, satisfying the requirement
in section 11.054 that the defendant must show there is not a reasonable
probability that the plaintiff will prevail in the litigation.  In addition, the court found that Douglas had
commenced “at least five pro se
actions . . . that have been finally determined against him; and/or permitted
to remain pending for at least two years without having been brought to trial;
and/or determined by a trial or appellate court to be frivolous under state or
federal law,” as provided in section 11.054(1) and (2), and it attached to its
order a list of 22 opinions in suits filed by Douglas.  Finally, the court found that Douglas had
“previously been declared a vexatious litigant by a state court in an action
based on the same or substantially similar facts,” satisfying the requirement
in section 11.054(3).  
          The trial court’s findings are supported by the record and
by this Court’s own records and publically available opinions and orders, of
which we hereby take judicial notice.  See Tex.
R. Evid. 201(b)(2); Office of Pub. Utility Counsel, 878 S.W.2d at 600; Douglas,
196 S.W.3d at 878 n.1.   
          Douglas has a long history in the
First and Fourteenth Courts of Appeals testing the construction of the
vexatious litigant statute.  In an
opinion published in 2006, Douglas v. American
Title Co., this Court held that the defendant title company, ATC, against
which Douglas had filed an action to produce mortgage records he claimed it had
a duty to produce, failed to establish that Douglas was a vexatious litigant because
no evidence was offered to establish that the separate action was based on same
or substantially similar facts as action to produce records.  Id. at 882.  We
reached this conclusion even though we acknowledged that Douglas had been
declared a vexatious litigant in a separate action by the 164th district court
in Douglas v. Quaker Home Fin. Serv’s, cause number 2003-2950.  Id. at 878 & n.2.  
          We held in Douglas v. American Title that the prohibition against Douglas’s
filing new litigation in propria persona without
permission from the local administrative judge did not apply because Douglas’s
petition in that case was filed in January 14, 2004, and Douglas was not
declared a vexatious litigant in Douglas
v. Quaker Home Financial Services until March 24, 2004.  Id. at 878 n.3.  We also
held that ATC had failed to satisfy the requirements for proving Douglas a
vexatious litigant under subsection 11.054(2) because “we conclude[d] that the
cause of action, claim, and controversy of the 2003 lawsuit were different from
those of the 2004 lawsuit.”  Id. at 881.  Specifically, “[i]n
the 2003 lawsuit, Douglas sued ATC for breach of contract related to a property
located at 4703 Sauer,” whereas, “[b]y contrast, in the 2004 lawsuit, Douglas
sued ATC for failure to produce documents for properties located at 5646 Belmark (“Belmark”), 3406 Milbrad (“Milbrad”), 11515 Lockgate (“Lockgate”) [the
Joneses’ property].”  Id. 
We observed that Douglas was indicted for real-estate fraud on the last
three properties, but that he was not indicted for real-estate fraud on the
Sauer property, nor did Douglas allege that ATC’s allegedly wrongful acts were
caused by the DA’s office, as he had in the other litigation.  Id. at 881 & n.9. 
Therefore, we concluded that the criminal trial did not involve the same
parties and causes of action.  Id. at 881.  We held that the trial court abused its
discretion in declaring Douglas a vexatious litigant and remanded the case for
further proceedings.  Id. at 883.
          After we reversed Douglas’s suit against
ATC and remanded it to the trial court, Douglas continued his career of
frivolous and malicious in propria persona filings
from prison.  The Fourteenth Court of
Appeals recounted the ATC saga in a memorandum opinion issued November 19,
2009, stating:
          In 1999, Douglas contracted with appellee
American Title Company (ATC) to perform title services.  See
Douglas v. Amer. Title Co., No. 01-04-00265-CV, 2005 WL 568290, at *1 (Tex.
App.—Houston [1st Dist.] Mar. 10, 2005, no pet.) (memo. op.). 
Thereafter, Douglas was indicted for real estate fraud.  See id.  The Harris County District Attorney’s Office
requested that ATC halt all transactions related to properties covered by the
fraud allegations, and ATC complied with that request.  Id.  In response, Douglas sued ATC for breach of
contract.  See id.  ATC filed a summary
judgment motion, which the trial court granted. 
Id. at *2.  Douglas then filed a restricted appeal, which
was dismissed for lack of subject matter jurisdiction.  Id. at *3.
 
          In 2004, Douglas filed a second suit against ATC complaining
of its failure to produce mortgage records. 
See Douglas v. Amer. Title Co.,
196 S.W.3d 876 (Tex. App.—Houston [1st Dist.] 2006, no pet.).  In response to ATC’s motion to have Douglas
declared a vexatious litigant pursuant to Chapter 11 of the Texas Civil
Practice and Remedies Code, the trial court ordered Douglas to pay security in
the amount of $5000.  See id. at 878;
see also Tex. Civ. Prac. & Rem. Code Ann.
§§ 11.054–.056 (Vernon 2002).  The trial
court then dismissed the suit because Douglas failed to furnish the ordered
security within the time set out in the vexatious litigant order.  See
Douglas, 196 S.W.3d at 879; see also
Tex. Civ. Prac.
& Rem. Code Ann. § 11.056 (Vernon 2002).  The First Court of Appeals reversed the
judgment, finding the trial court abused its discretion in granting ATC’s
vexatious litigant motion for security, and remanded the case to the trial
court.  See Douglas, 196 S.W.3d at 883.  No subsequent appeals in the 2004 suit are
reported, but Douglas has acknowledged that the 2004 suit was dismissed
pursuant to Chapter 14 of the “Civil Practice and Remedies Code.  See
Tex. Civ. Prac.
& Rem. Code Ann. § 14.003 (Vernon 2002) (permitting dismissal of an
inmate’s claim if the court finds the claim is frivolous or malicious).  An appeal in the 2004 suit is pending at the
First Court of Appeals under case number 01-07-00358-CV.
 
          In 2007, Douglas filed this new suit against ATC seeking
mortgage documents on the same properties named in the 2004 suit.  On March 13, 2008, the trial court issued a
“Notice of Intent to Dismiss—No Answer Filed.” . . .  Douglas filed a motion to retain on April 2,
2008.   On April 30, 2008, the trial
court signed an order dismissing the case for want of prosecution, stating
Douglas failed to comply with the court’s dismissal notice.  Douglas then filed a motion to reinstate on
June 2, 2008, which was timely mailed on May 30, 2008.  See
Tex. R. Civ. P. 5, 165a(3).  The motion
was overruled by operation of law. See
Tex. R. Civ. P. 165a(3).  Douglas then
brought this appeal.
 
Douglas v. Amer. Title Co., No.
14-08-00676-CV, 2009 WL 3851674, at *1–2 (Tex. App.—Houston [14th Dist.] Nov. 19, 2009, no pet.) (memo. op.).  The court considered and overruled Douglas’s
three issues complaining of the trial court’s failure to conduct a dismissal
hearing, to consider his motion to retain, or to conduct a hearing on his
motion to reinstate, and it affirmed the trial court’s order dismissing
Douglas’s 2007 suit against American Title as frivolous or malicious.  Id. at *5.
          Meanwhile, Douglas had filed in this
Court, in appeal number 01-07-0358-CV—alluded to by the Fourteenth Court of
Appeals in its November 19, 2009 opinion in Douglas
v. American Title Co. as “pending”—an appeal from the judgment entered on
remand of his 2004 suit against ATC. 
This Court’s per curiam dismissal of Douglas’s
earlier 2004 suit against ATC for Douglas’s failure to file the record issued
on the same day as the Fourteenth Court of Appeals’ dismissal of his 2007 suit
against ATC—November 19, 2009—but not before Douglas had accumulated a docket
sheet eleven pages long in his appeal of that 2004 case on remand in this Court
alone, consisting of 84 recorded “events,” including filings by Douglas, filing
deadlines, notices sent to Douglas by the Court, and correspondence from
Douglas to the Court.  
          The trial court’s order in this case satisfies all the
statutory requirements for the court’s finding Douglas to be a vexatious
litigant on its own motion.  Thus, we
hold that the trial court did not abuse its discretion in finding him to be a
vexatious litigant.  See Douglas, 196 S.W.3d at 879.  Douglas has not contested the pre-filing
order pursuant to section 11.101.  We overrule
Douglas’s first and second issues, and we affirm that part of the trial court’s
judgment finding Douglas to be a vexatious litigant and requiring him to comply
with statutory requirements in filing future cases as provided in Chapter 11 of
the Civil Practice and Remedies Code.
B. Dismissal Under Chapter
14, Texas Civil Practice & Remedies Code
In his third
issue, Douglas contends the trial court abused its discretion when it dismissed
his petition as frivolous, i.e., as having
no arguable basis in law, because, he contends, he properly stated a claim for
bill of review.
Chapter 14
of the Texas Civil Practice and Remedies Code applies to an inmate’s in propria persona claim in a suit in which an affidavit or
unsworn declaration of inability to pay costs is filed by the inmate. See Tex.
Civ. Prac. & Rem. Code Ann. § 14.002.  Among several grounds on which a court may
dismiss the suit are findings that the suit is frivolous or malicious, i.e., the claims raised in the suit have
no arguable basis in law or fact.  See id. § 14.003(a)(2),
(b)(2).  Specifically, section 14.003
provides, in part:
(a)   A court may dismiss a claim, either before or
after service of process, if the court finds that:
 
(1) the allegation of poverty in
the affidavit or unsworn declaration is false; 
 
(2) the claim is frivolous or
malicious; or
 
(3) the inmate filed an affidavit
or unsworn declaration required by this chapter that the inmate knew was false.
 
(b)  In determining whether a claim is frivolous or
malicious, the court may consider whether:
 
(1) the claim’s realistic chance
of ultimate success is slight;
 
(2) the claim has no arguable
basis in law or in fact;
 
(3) it is clear that the party
cannot prove facts in support of the claim; or
 
(4) the claim is substantially
similar to a previous claim filed by the inmate because the claim arises from
the same operative facts.
 
Id.
§ 14.003(a), (b). 

          Section 14.003 further provides that,
in determining whether subsection 14.003(a) applies, the court “may” hold a
hearing and, if it dismisses a claim brought by a person housed in a TDCJ
facility, it “may notify [TDCJ] of the dismissal.”  Id. § 14.003(c)–(d). 
The trial court’s failure to conduct a hearing on whether an inmate’s
suit is frivolous is not an abuse of discretion when the inmate has failed to
demonstrate that there is evidence he would have presented had a hearing been
held.  Hall, 39 S.W.3d at 724.  When the trial court does not hold a hearing,
the issue before the appellate court is whether the trial court properly
determined that the lawsuit had no arguable basis in law.  Presiado v. Sheffield, 230 S.W.3d 272, 274 (Tex.
App.—Beaumont 2007, no pet.).
          In addition, section 14.004 of the
Code provides:
(a)  An inmate who files an
affidavit or unsworn declaration of inability to pay costs shall file a
separate affidavit or declaration:
 
(1) identifying each suit . . .
previously brought by the person and in which the person was not represented by
an attorney, without regard to whether the person was an inmate at the time the
suit was brought; and
 
(2)  describing each suit that was previously
brought by:
 
(A)         
 stating the operative facts for
which relief was sought;
 
(B)  listing the case name, cause number, and the
court in which the suit was brought;
 
(C)  identifying each party named in the suit; and
 
(D)         
 stating
the result of the suit, including whether the suit was dismissed as frivolous
or malicious under Section 14.001 or Section 14.003 or otherwise.
 
(b) If the affidavit or
unsworn declaration filed under this section states that a previous suit was
dismissed as frivolous or malicious, the affidavit or unsworn declaration must
state the date of the final order affirming the dismissal.
 
(c) The affidavit or unsworn
declaration must be accompanied by the certified copy of the trust account
statement required by Section 14.006(f).
 
Tex. Civ. Prac. & Rem. Code Ann. § 14.004.
Finally, section 14.006(f), referenced in section 14.004(c),
provides:
(f)  The inmate shall file a certified copy of the
inmate’s trust account statement with the court.  The statement must reflect the balance of the
account at the time the claim is filed and activity in the account during the
six months preceding the date on which the claim is
filed.  The court may request the
department or jail to furnish the information required under this subsection.
              
Id. § 14.006(f). 
Section 14.006 also provides that a court may order an inmate who has filed
a claim to pay court fees, court costs, and other costs, and it prescribes a
method for assuring payment.  Id. § 14.006(a)–(e).  The court may dismiss the claim if the inmate
fails to pay fees and costs assessed under the section.  Id. § 14.006(h).
The
standard of review of the dismissal of a lawsuit brought by an inmate who had
filed an affidavit or declaration of inability to pay costs is abuse of
discretion.  Thomas v. Knight, 52 S.W.3d 292, 294 (Tex. App.—Corpus Christi
2001, pet. denied).  To establish an
abuse of discretion, the inmate must show that the trial court’s action was
arbitrary or unreasonable in light of all the circumstances in the case.  Id.   While
dismissals of inmate litigation under chapter 14 are generally reviewed for an
abuse of discretion, the question whether there was an arguable basis in law
for an inmate’s claims is reviewed de novo.  Scott v. Gallagher, 209 S.W.3d 262, 266 (Tex. App.—Houston [1st
Dist.] 2006, no pet.); Sawyer v. Tex.
Dep’t of Crim. Justice, 983 S.W.2d 310, 311 (Tex. App.—Houston [1st Dist.]
1998, pet. denied). 
When an
inmate does not comply with the affidavit requirements in filing an affidavit
or unsworn declaration of inability to pay costs, the trial court is entitled
to assume the suit is substantially similar to one previously filed by the
inmate and, therefore, frivolous.   Thompson, 52 S.W.3d at 295; Hall,
39 S.W.3d at 724; Bell v. TDCJ-Inst. Div., 962 S.W.2d 156, 158
(Tex. App.—Houston [14th Dist.] 1998, pet. denied).  This is so even when the inmate contends that
defects in his affidavit could be cured with copies of his previous lawsuits,
filed as exhibits.  Clark v. Unit, 23 S.W.3d 420, 422 (Tex.
App.—Houston [1st Dist.] 2000, pet. denied).  The description of previous suits must be
contained a separate affidavit or declaration, and the court is not required to
sift through numerous documents filed by the inmate to find the information
specified by the statute.  Id. 
An inmate’s unsworn allegation in his petition for declaratory relief
that he has not filed any previous lawsuit concerning the subject matter of the
cause of action and has not previously filed any other civil actions in any
court does not qualify as either an affidavit or an unsworn declaration satisfying
the procedural requirements for civil inmate litigation, and thus, in such a
case, the suit may be dismissed as frivolous. 
Jackson v. TDCJ-Inst. Div., 28
S.W.3d 811, 814 (Tex. App.—Corpus Christi 2000, pet. denied).  
An inmate’s
failure to file the affidavit or unsworn declaration relating to previous
filings is mandatory in inmate litigation, and the failure to file the
affidavit is grounds alone to dismiss the suit. 
Amir-Sharif v.
Mason, 243 S.W.3d 854, 858 (Tex. App.—Dallas 2008, no pet.).  The dismissal of a state prisoner’s suit
merely for failure to comply with the conditions set out in section 14.004 is
not, however, a dismissal on the merits and is, therefore, generally a
dismissal without prejudice.  Thomas, 52 S.W.3d at
295.  
To
determine whether the trial court properly decided that there was no arguable
basis in law for an inmate’s suit filed with an affidavit or declaration of
inability to pay costs, the court of appeals must examine the types of relief
and causes of action the inmate pleaded in his petition to determine whether,
as a matter of law, the petition stated a cause of action that would authorize
relief.  Spurlock v. Schroedter,
88 S.W.3d 733, 736 (Tex. App.—Corpus Christi 2002, no pet.); Jackson, 28 S.W.3d at 813.  In reviewing a dismissal of a suit filed by
an inmate for inability to pay costs, the appellate court is bound to take as
true the allegations in the inmate’s original petition.  Brewer v. Simental, 268 S.W.3d 763, 770 (Tex.
App.—Waco 2008, no pet.); Jackson, 28
S.W.3d at 813.  The court should
consider whether the suit was dismissed with prejudice, and, if it was, it
should determine whether the prisoner’s error could be remedied through more
specific pleading; if it could, dismissal with prejudice was improper.  Thomas,
52 S.W.3d at 296.
Here,
Douglas filed a petition for a bill of review in the trial court and an unsworn
declaration of inability to pay.   There
is no indication in the record that Douglas filed the affidavit required by
section 14.004 of the Civil Practice and Remedies Code identifying and
describing the suits he had filed in propria persona
or the certified copy of his trust account statement required by sections
14.004(c) and 14.006(f) of the Code.  See Tex.
Civ. Prac. & Rem. Code Ann. §§ 14.004(c),
14.006(f).  Therefore, the suit was, for
that reason alone, subject to dismissal. 
See Amir-Sharif, 243 S.W.3d at
858; Thompson, 52 S.W.3d at 295; Hall, 39 S.W.3d at 724; Clark, 23 S.W.3d at 422; Bell,
962 S.W.2d at 158. 
In
considering the merits of Douglas’s contentions, nevertheless, we reach the
same conclusion as the trial court, namely that his suit was properly dismissed
as frivolous and malicious.
In this
case, Douglas has filed a bill of review seeking further review of the
consolidated cases he filed in 2001 against the Joneses arising out of the
matters that were the subject of his criminal conviction for theft and the
bankruptcy court’s subsequent finding that he defrauded the Joneses.  A bill of review is an independent, equitable
proceeding to set aside a judgment that, while not void on the face of the
record, is no longer appealable or subject to a motion for new trial.  King Ranch, Inc. v.
Chapman, 118 S.W.3d 742, 751 (Tex. 2003).  Generally, a petitioner seeking to set aside
a prior judgment by bill of review must plead and prove (1) a meritorious claim
or defense, (2) that was not asserted due to fraud, accident,
or wrongful act of an opponent or official
mistake, (3) unmixed with any fault or negligence by the petitioner.
See id. at 752.  However, when the bill-of-review petitioner
participates in the underlying suit, but was prevented from pursuing a motion
for new trial or appeal because the district clerk failed to give notice of the
judgment, the bill-of-review petitioner must establish a “meritorious ground of
appeal” in lieu of a meritorious claim or defense. Petro-Chem.
Transp., Inc. v. Carroll, 514 S.W.2d 240, 245–46 (Tex. 1974); Thompson
v. Ballard, 149 S.W.3d 161, 164 (Tex. App.—Tyler 2004, no pet.).  A “meritorious ground of appeal” is one that
might, and probably would, result in a reversal of the trial court's judgment. Petro-Chem.,
514 S.W.2d at 245; Thompson, 149 S.W.3d at 164.
Douglas had
his appeal of his consolidated suits against the Joneses in the Fourteenth
Court of Appeals in 2004 and allowed it to be dismissed for want of
prosecution.  The litigation history of
Douglas’s claims related to the Joneses and to his theft of their property that
resulted in his conviction and sentence to life in prison, as well as numerous
related claims, have been litigated by Jones in at least 22 directly and
indirectly related causes of action to date. The trial court made the requisite
findings to support dismissal of this suit under section 14.003(a) as a
frivolous or malicious suit.  See id. § 14.003(a)–(b) (listing factors
to consider in determining frivolousness, namely, slight realistic chance of
ultimate success of the claim, lack of arguable basis in law or in fact,
inability of party to prove facts in support of claim, or claim’s substantial
similarity to previous claim filed by inmate because arising from same
operative facts).  
Our review
of the record substantiates the trial court’s findings that Douglass’s suit is
frivolous and malicious.  Douglas has
prosecuted his petition for a bill of review in the trial court and this Court
since 2006, despite repeated prior rulings adverse to him in the consolidated
cases against the Joneses and integrally related cases, despite his allowing
his first appeal of the consolidated cases to languish for two years in the
Fourteenth Court of Appeals without prosecution, despite never serving the
Joneses with his 2006 petition for bill of review, despite the trial court’s
2008 ruling finding him to be a vexatious litigant (as he had previously been
found to be a vexatious litigant in other, related litigation), despite failing
to serve the Joneses with his notice of appeal of the dismissal of his bill of
review, and despite his failing to file the affidavit of previous filings and
statement of his trust account required of all inmates who have filed an
affidavit or unsworn declaration of inability to pay, as he has.  
On this
record, we can discern no basis on which Douglas could establish a meritorious
ground of appeal. See Petro-Chem., 514 S.W.2d at 245.  We,
therefore, affirm the trial court’s judgment dismissing Douglas’s petition for
bill of review as frivolous and malicious.
Judicial
Misconduct
In his fourth and final
issue on appeal, Douglas contends that the trial court judge was biased against
him, thus depriving him of his constitutional right to have his suit decided by
a fair and impartial judge.  Douglas
contends that trial court’s bias against him is shown by its order that the
Executive Director of TDCJ and to the Chair of the Texas Board of Pardons and
Paroles be sent certified copies of its order dismissing his suit as frivolous,
malicious, and without basis in law or fact.
To reverse a
judgment on the ground of judicial misconduct, we must find
judicial impropriety coupled with probable prejudice to the complaining party. Silcott
v. Oglesby, 721 S.W.2d 290, 293 (Tex. 1986); Erskine v. Baker, 22
S.W.3d 537, 539 (Tex. App.—El Paso 2000, pet. denied); Metzger v. Sebek,
892 S.W.2d 20, 39 (Tex. App.—Houston [1st Dist.] 1994, writ denied). We examine
the entire record to determine whether these factors are present. Metzger, 892 S.W.2d at
39. 
Section 14.003(e) of the
Civil Practice and Remedies Code expressly provides that “[a] court that
dismisses a claim brought by a person housed in a facility operated by or under
contract with [TDCJ] may notify [TDCJ] of the dismissal.”  Tex.
Civ. Prac. & Rem. Code Ann. §
14.003(e).  The record does not indicate
why the trial court also directed that the Texas Board of Pardons and Paroles
be notified of the dismissal, and we will not speculate as to the trial court’s
actions in the absence of any indication that Douglas could have brought forth evidence
to establish the trial court’s bias against him or the harm caused him by this
notice.  Rather, Douglas’s “blizzard of
unsuccessful state and federal civil litigation brought . . . against the
complainants, prosecutors, defense attorneys, witnesses, judges, and other
individuals and companies directly or indirectly involved in his criminal
convictions, spanning seven years and, as evinced by the instant lawsuit,
continuing into the present,” argue against Douglas’s ability to show judicial
bias against him.  See Douglas v. Haynes,
No. H-09-0598, 2009 WL 1871964, at *1 (S.D. Tex. June 26, 2009).  Finding no evidence to support Douglas’s
contention of judicial impropriety, we overrule his final issue.
CONCLUSION
We affirm
the trial court’s order finding appellant Ralph O. Douglas to be a vexatious
litigant under Chapter 11 of the Texas Civil Practice and Remedies Code and
requiring that he satisfy the statutory filing requirements for vexatious
litigant prescribed by Chapter 11 in all future cases.  We likewise affirm the trial court’s order dismissing
Douglas’s suit under Chapter 14 of the Code as frivolous and malicious.
 
 
 
 
                                                          Evelyn
V. Keyes
                                                          Justice

 
Panel consists of Justices Keyes, Sharp, and Massengale.
Justice Sharp, concurring and dissenting.




[1]           Douglas’ suit was dismissed by the trial judge prior to service of
citation.  As a result, the defendants named
in Douglas’ petition for bill of review were never informed of the suit nor
were they given an opportunity to enter an appearance in this case.  Moreover, Douglas does not raise any issues
or points of error with respect to any of the named defendants.  Thus, there are no “appellees”
for purposes of this appeal.  See Yilmaz v.
McGregor, 265 S.W.3d 631, 637 (Tex. App.—Houston [1st Dist.] 2008, pet.
denied) (“To be a ‘party’ to a lawsuit, one generally must be named in the
pleadings and either be served, accept or waive service, or make an
appearance.  Merely being named in a
petition as a defendant does not make one a ‘party’ to the lawsuit.”); Ex parte Bowers, 886 S.W.2d 346, 349
(Tex. App.—Houston [1st Dist.] 1994, writ dism’d w.o.j.) (“A party to a suit generally is one named in the
pleadings, who is served, accepts or waives service, or appears, and who
participates at trial and contests the cause of action”); see also Mapco, Inc. v.
Carter, 817 S.W.2d 686, 687 (Tex. 1991) (holding judgment may not be
rendered against defendant unless upon service, acceptance or waiver of
process, or appearance); Showbiz
Multimedia, LLC v. Mt. States Mortg. Ctrs., Inc., 303 S.W.3d 769, 771 n.3 (Tex. App.—Houston [1st
Dist.] 2009, no pet.) (appellee must be party to trial
court’s final judgment and someone against whom appellant raises
issues or points of error in appellant’s brief) (citing Gray v. Allen,
41 S.W.3d 330, 331 n.2 (Tex. App.—Fort Worth 2001, no pet.)).


[2]           See Tex.
Civ. Prac. & Rem. Code Ann. § 14.002 (Vernon
2002).


[3]           In its
order, the trial court took judicial notice of other facts in its records.  A court may take judicial notice of its own
records “between the same parties involving the same subject matter.”  Douglas
v. Am. Title Co., 196 S.W.3d 876, 878 n.1 (Tex. App.—Houston [1st Dist.]
2006, no pet.); see also Office of Pub.
Utility Counsel v. Public Utility Comm’n of Tex.,
878 S.W.2d 598, 600 (Tex. 1994) (per curiam) (citing Tex. R. Civ. Evid.
201(b)(2), which provides that, to be proper subject
of judicial notice, fact must be “capable of accurate and ready determination
by resort to sources whose accuracy cannot reasonably be questioned,” and
holding that court of appeals erred in failing to take judicial notice of PUC
ratemaking order affirmed by trial court whose “authenticity and contents . . .
are capable of accurate and ready determination by resort to a published record
whose accuracy cannot reasonably be questioned”).


[4]                               Each of the cases cited by the dissent, with the
exception of one, an unpublished memorandum opinion, is a case in which the
defendant moved for an order declaring the plaintiff a vexatious litigant after
the 90 day deadline in section 11.051 had passed.  These cases are, therefore, inapplicable to
this case. See Dishner
v. Huitt-Zollars, Inc., 162 S.W.3d 370, 377 (Tex.
App.—Dallas 2005, no pet.) (holding trial court abused
its discretion in declaring appellant vexatious litigant when motion was filed
outside ninety-day time period); In re
Marriage of Grossnickle, 115 S.W.3d 238, 252
(Tex. App.—Texarkana 2003, no pet.) (“[T]he ‘vexatious litigant’ statute
applies only when filed within ninety days after date on which a defendant
files his or her original answer.”); Spiller
v. Spiller, 21 S.W.3d 451, 454 (Tex. App.—San Antonio 2000, no pet.) (holding section 11.051 motion filed outside the ninety-day
period was untimely).
In Scott v. TDCJ-Inst. Div., No. 13-07-00718-CV, 2008 WL 4938265, at *3
(Tex. App.—Corpus Christi Nov. 20, 2008, no pet.) (mem. op.), the appellate
court held that trial court abused its discretion by declaring inmate vexatious
litigant because, inter alia, the vexatious litigant statute did not authorize the
court to raise the issue sua sponte.  The court based its conclusion on the holding
by the Fourteenth Court of Appeals in Akinwamide v. Transp.
Ins. Co., No. 14-06-01054-CV, 2008 WL 660303 (Tex. App.—Houston [14th
Dist.] Mar. 11, 2008, pet. denied) (memo op.),
concluding that the vexatious litigant statute did not provide for the courts
to declare litigants vexatious sua sponte, but only to declare litigants vexatious on a motion
of the defendant within 90 days of filing of suit; and it rejected Texas
Supreme Court cases decided prior to the enactment of the statute holding that
courts have inherent power to declare litigants vexatious.  Id.
at *4 (citing Univ. of Tex. v. Morris,
344 S.W.2d 426, 428 (Tex. 1961); Birdo v. Holbrook,
775 S.W.2d 411, 412–14 (Tex. App.—Fort Worth 1989, writ denied)).
Neither the Scott court nor the Akinwamide court mentioned or considered section 11.101 of
the Texas Civil Practice and Remedies Code. 
Moreover, in Akinwamide,
the defendant had filed an untimely motion under section 11.054 of the Code
seeking an order declaring the plaintiff a vexatious litigant, so that the
court’s discourse on the inherent power of the court to declare a litigant
vexatious, to the extent it dealt with sua sponte motions of the court, was dictum because there was
no such motion in the case.  Id.  To
the extent Scott or Akinwamide, or
any of the other cases cited by the dissent, holds that a court lacks both
inherent and statutory power under the vexatious litigant statute to declare a
litigant vexatious on its own motion, we disagree with those holdings.


