

Opinion filed July 12,
2012











                                                                      
In The
                                                                             

  Eleventh
Court of Appeals
                                                                  
__________
 
                                                        
No. 11-10-00190-CV 
                                                   
__________
 
                            
WAYNE ERNEST BARKER, Appellant
 
                                                            
V.
 
                               
 THOMAS HUTT ET AL., Appellees

 
                                  
On Appeal from the 12th District Court
                                                         
 Walker County, Texas
                                                    
Trial Court Cause No. 24,850 
 

 
                                           
M E M O R A N D U M   O P I N I O N
           
This is an appeal from the trial court’s order declaring Wayne Ernest Barker a
vexatious litigant and dismissing his lawsuit after he failed to furnish
court-ordered security.  See Tex.
Civ. Prac. & Rem. Code Ann. §§ 11.001–.055 (West 2002 & Supp.
2011).  In four
“assignments” of error, appellant claims that (1) the trial judge erred in
failing to recuse himself; therefore, all subsequent
orders by the court were void; (2) the trial court erred in assessing costs
against him because no defendant had filed within the ten-day period a contest
to appellant’s affidavit of indigence; (3) the trial court erred in failing to
enter a separate order dismissing appellant’s lawsuit when appellant failed to
furnish the security of $2,000 required in the court’s order dated May 10,
2010; and (4) the trial court erred in not addressing appellant’s motion to
have all funds returned that were paid from his inmate trust account and to
rescind further payments.  We review a trial court’s declaration of a
vexatious litigant under an abuse of discretion standard.  In re Douglas, 333 S.W.3d 273, 283 (Tex. App.—Houston [1st
Dist.] 2010, pet. denied).  We affirm.
Background
           
Appellant, acting pro se, filed suit against correctional officers of the
Estelle High Security Unit of the Texas Department of Criminal Justice: Thomas
Hutt, as High Security Major; R. Jenkins, as Security Captain; and T. Hunt, as
Assistant Warden-High Security.  He also named Lave Lacy, a State
Classification Committee Member, as a defendant; however, the record reflects
that Lacy was never properly served.[1]
 Appellant alleged that his constitutional rights had been violated
because he had been wrongfully placed in administrative segregation in the high
security unit.  Appellant sought damages in the amounts of $135 for each
day he was assigned to administrative segregation, $100,000 for mental pain and
suffering, future damages of $150,000 from each appellee,
$75,000 for the lost pleasure of living, and $500,000 in punitive or exemplary
damages.
           
Appellees timely filed a motion to declare appellant
a vexatious litigant.  Under Chapter 11 of the Texas Civil Practice and
Remedies Code, a defendant may file a motion with the court for an order
declaring that the plaintiff is a vexatious litigant and requiring the
plaintiff to furnish security, provided that the defendant makes the motion on
or before the ninetieth day after the defendant files the original answer or
makes a special appearance.  Section 11.051. 
After a hearing on May 10, 2010, pursuant to Section 11.053, the trial court
granted appellees’ motion.  Appellant failed to
furnish the security ordered by the trial court to be furnished on or before
June 1, 2010.  Under the court’s order, appellant’s lawsuit was dismissed.
Motion
for Recusal of Trial Judge
           
We will first address appellant’s motion to have the trial judge recused and his argument that all subsequent orders entered
by the trial judge are void.  Tex.
R. Civ. P. 18a(a) requires that a recusal
motion be verified.  Appellant failed to comply with the requirement of
Rule 18a(a); therefore, he waived his right to
complain of the trial judge’s failure to recuse
himself.  In addition, appellant’s grounds for seeking recusal were based
on the judge’s rulings in the case, especially the court’s order assessing $659
in court costs and fees against him and ordering that costs and fees be paid
from appellant’s inmate trust account.  One of the requirements for a
recusal motion is that it “must not be based solely on the judge’s rulings in
the case.”  Rule 18a(a)(3).  Also, a
recusal motion must state with detail and particularity facts that, “if proven,
would be sufficient to justify recusal or disqualification.”  Rule 18a(a)(4)(C).  Appellant’s motion did not meet that
requirement.
To
recuse a judge, a party must follow the procedure
prescribed by Rule 18a.  Carson v. Serrano, 96 S.W.3d 697, 698
(Tex. App.—Texarkana 2003, pet. denied).  If a party fails to follow the
requirements of Rule 18a, he waives the right to complain of a judge’s failure
to recuse himself.  Id.; Wirtz v. Mass. Mut. Life Ins. Co., 898 S.W.2d 414, 423 (Tex. App.—Amarillo 1995, no
writ).  Appellant’s first assignment of error is
overruled.
Assessment
of Costs Against Appellant
           
In appellant’s second assignment of error, he asserts that the trial court
erred in assessing the costs of his lawsuit against him.  His argument is
based on the fact that he filed an affidavit of indigence that was not
contested.    
           
Chapter 14, entitled “Inmate Litigation,” applies to a suit brought by an
inmate in a district, county, justice of the peace, or small claims court in
which an affidavit or unsworn declaration of inability to pay costs is filed by
the inmate.  Tex. Civ. Prac. &
Rem. Code Ann. ch. 14 (West 2002 & Supp. 2011); see Section
14.002.  Appellant is an inmate who filed an affidavit of inability to pay
costs; therefore, Chapter 14 applies to this lawsuit.  
           
Section 14.006 provided authority for the trial court in this case to assess
against appellant the court costs and fees related to his lawsuit:
           
(a) A court may order an inmate who has filed a claim to pay court fees, court
costs, and other costs in accordance with this section and Section
14.007.  The clerk of the court shall mail a copy of the court’s order and
a certified bill of costs to the department or jail, as appropriate.
 
           
(b) On the court’s order, the inmate shall pay an amount equal to the lesser
of:
 
           
(1) 20 percent of the preceding six months’ deposits to the inmate’s trust
account; or
 
           
(2) The total amount of court fees and costs.
 
           



 
           
(c) In each month following the month in which payment is made under Subsection
(b), the inmate shall pay an amount equal to the lesser of:
 
           
(1) 10 percent of that month’s deposits to the trust account; or
 
           
(2) The total amount of court fees and costs that remain
unpaid.      
 
The trial court
followed the requirements of Section 14.006 each time it assessed costs and
fees against appellant.
           
Even though appellant filed an affidavit of indigence, the trial court was
within its discretion in assessing costs and fees against appellant.  See
Hatcher v. TDCJ-Institutional Div., 232 S.W.3d 921 (Tex. App.—Texarkana
2007, pet. denied); Carson, 96 S.W.3d 697; Obadele
v. Johnson, 60 S.W.3d 345 (Tex. App.—Houston [14th Dist.] 2001, no pet.); Thomas
v. Knight, 52 S.W.3d 292, 296 (Tex. App.—Corpus Christi 2001, pet.
denied).  An inmate who has funds in his trust account is not
indigent.  See Allred v. Lowry, 597 S.W.2d 353, 355 (Tex. 1980); McClain
v. Terry, 320 S.W.3d 394 (Tex. App.—El Paso 2010, no pet.).  Appellant
directs us to no authority suggesting that the trial court’s assessment of
costs was improper.  See Obadele, 60 S.W.3d at 351.
           
In his brief, appellant points out that this court allowed him to proceed in
this appeal without advance payment of costs because no contest to his
declaration of indigence was timely filed.  The letter from this court,
dated November 3, 2010, dealt only with this appeal, not prior assessments of
costs and fees by the trial court.  Appellant’s second assignment of error
is overruled.
The
Trial Court’s Order Properly Dismissed Appellant’s Lawsuit
           
In appellant’s third assignment of error, he argues that the trial court erred
in failing to enter a separate order dismissing appellant’s lawsuit when
appellant failed to furnish the security of $2,000 required in the court’s
order dated May 10, 2010.
           
After declaring appellant a vexatious litigant, the May 10 order reads in
pertinent part as follows:
           
Plaintiff is ordered to furnish security in the amount of $2000.00.  This
amount must be furnished to the Court on or before the date of 1 June,
2010.  Should Plaintiff fail to furnish such security within the time set
by this Order, the above referenced and numbered cause is dismissed. 
Should the case be dismissed upon its merits, Plaintiff shall pay Defendant’s
reasonable expenses incurred in or in connection with this litigation,
including costs and attorney’s fees.
 
The court’s
order was self-executing.  When appellant failed to furnish security in
the amount of $2,000, his lawsuit was dismissed under the May 10 order. 
It was not dismissed on the merits.  One of the requirements for a finding
that a plaintiff is a vexatious litigant is a showing by a defendant that there
is not a reasonable probability that the plaintiff will prevail in the
litigation.  Section 11.054.  By requiring
appellant to furnish security, the court implicitly found that there was not a
reasonable probability that appellant would prevail in his lawsuit. 
However, appellant had the opportunity to continue his lawsuit by furnishing
the required security.
           
Appellant’s basic complaint in his lawsuit is that he was misclassified and placed
in administrative segregation.  The Fifth Circuit has held that prison
systems have broad discretion in the internal classification of inmates, and
courts should not interfere with classification decisions except in extreme
circumstances.  Young v. Wainwright, 449 F.2d 338
(5th Cir. 1971).  Inmates have neither a protectable property nor
liberty interest in custodial classification.  Pichardo v. Kinker, 73 F.3d 612, 613 (5th Cir. 1996); Moody v.
Baker, 857 F.2d 256 (5th Cir. 1988).  Absent evidence of abuse,
the classification of prisoners is a matter left to the discretion of prison
officials.  McCord v. Maggio,
910 F.2d 1248, 1250 (5th Cir. 1990).  From appellant’s pleadings
and the record, we find that the trial court was correct in determining that
there was not a reasonable probability that appellant would prevail in his
litigation.
           
In addition to showing that there was not a reasonable probability that
appellant would prevail in his lawsuit, appellees
also had to show that appellant, in the seven-year period immediately preceding
the date of appellees’ motion under Section 11.051,
had 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 appellant, (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.  Section 11.054.  Appellant’s “Unsworn Declaration of
Prior Suits” under Section 14.004 listed eight separate suits he had filed
other than the present litigation.  
           
Appellees submitted ample evidence to meet the second
requirement of Section 11.054:  (1) five cases filed by appellant that had
been dismissed by the trial court, four of which had been affirmed by the
United States Court of Appeals for the Fifth Circuit and one in which it
appeared that no appeal was taken, and (2) three separate applications for
writs of mandamus filed by appellant with the Twelfth District Court of Appeals
in Tyler that were denied.  Appellees also
provided citations for additional lawsuits filed by appellant: three cases
pending in the 2nd District Court of Cherokee County, one case pending in the
295th District Court of Harris County, and one case pending in a district court
in Travis County.  
           
Appellees sustained their burden under Section
11.054.  The trial court followed the requirements of Chapter 11 of the
Texas Civil Practice and Remedies Code in finding that appellant is a vexatious
litigant and in dismissing appellant’s lawsuit.  Appellant’s third
assignment of error is overruled.
Trial
Court’s Refusal To Address Appellant’s Motion For
Refund
           
In appellant’s fourth assignment of error, he argues that the trial court erred
in not addressing his motion to have all funds returned that were paid from his
inmate trust account and to rescind further payments.  
           
This appears to be an alternative argument seeking the refund of the court
costs and fees that we addressed in the discussion of appellant’s second
assignment of error.  Appellant argues that Section 14.007(b)(2) provided
the sole grounds for the trial court to assess costs against him and that,
therefore, because the court did not dismiss his case as frivolous or malicious
under Section 13.001 or Section 14.003, the trial court was without authority
to leave in effect the assessments of court costs and fees against appellant. 
We disagree with appellant’s interpretation of the statutes.
           
Section 14.006(a) provides that “[a] court may order an inmate who has filed a
claim to pay court fees, court costs, and other costs in accordance with this
section and Section 14.007.”  As we held above, the trial court was
justified in assessing the costs against appellant under Section 14.006. 
Appellant’s fourth assignment of error is overruled.
This
Court’s Ruling
           
The order of the trial court finding appellant to be a vexatious litigant is
affirmed.  Court costs and fees were properly assessed by the trial court
against appellant. 
           

           

                                                                                               
TERRY McCALL
July 12,
2012                                                                          
JUSTICE
Panel consists of: Wright, C.J.,
McCall, J., and Kalenak, J.







               
[1]However, a  Dinah
Lovelady was subsequently served by certified mail, and she filed an answer and
jury demand.  Lovelady was represented by the same assistant attorney
general who represented the other defendants/appellees.



