      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-06-00740-CV



                              Roque Tercero-Aranda, Appellant

                                                v.

Greg Abbott, Attorney General of Texas; Denise A. Villarreal, Assistant Attorney General;
  Patricia K. Dyer, Assistant Attorney General; Carter T. Schildknecht, District Judge;
  Virginia Stewart, District Clerk of Gaines County; Ricky B. Smith, District Attorney;
                           and Troy Bennett, Clerk, Appellees


    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
  NO. D-1-GN-04-003555, HONORABLE GISELA D. TRIANA-DOYAL, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Roque Tercero-Aranda, appearing pro se, challenges the district court’s order

dismissing his civil rights claims against several state and county defendants, including the

attorney general, two assistant attorneys general, a Gaines county district judge and clerk, a

district attorney, and the clerk of the court of criminal appeals. We affirm the district court’s

judgment.

               Aranda filed this civil rights lawsuit in Travis County district court on October 25,

2004. See 42 U.S.C. §§ 1981, 1983, 1985(3) (West 2003). At the time Aranda filed this suit, he was

incarcerated in the McConnell Unit in Beeville, Texas. In April 2007, after he had been released on

parole, Aranda was deported to Mexico.
               The events giving rise to Aranda’s claims in this lawsuit began in 1997. On

October 7, 1997, a jury in Gaines County, Texas, found Aranda guilty of burglary of a habitation.

Aranda’s conviction was affirmed by the Eighth Court of Appeals of Texas on December 3, 1998,

and Aranda did not seek review by the Texas Court of Criminal Appeals. His conviction became

final on January 2, 1999.

               Aranda filed a petition for writ of habeas corpus in federal district court on October 2,

2000, and claimed that he had also filed a state habeas application in state court on October 5, 1999.

In response to Aranda’s federal habeas petition, respondent, Director of the Texas Department of

Criminal Justice Institutional Division (TDCJ Director), filed a motion to dismiss, arguing

that Aranda had failed to exhaust state administrative remedies. Although Aranda claimed that he

had filed his state habeas application on October 5, 1999, the TDCJ Director contended that no

such application had been filed. The federal district judge ordered the TDCJ Director to produce

outgoing mail logs from the prison unit where Aranda was incarcerated as well as an affidavit

from the Gaines County district clerk’s office, showing that no state habeas application had

been mailed or received. The TDCJ Director produced the logs as ordered, and based on those logs,

the federal district court dismissed Aranda’s suit for failure to exhaust state remedies on June 12,

2001. See Coleman v. Thompson, 501 U.S. 722, 731 (1991); Brewer v. Johnson, 139 F.3d 491, 493

(5th Cir. 1998).

               On July 23, 2001, Aranda filed a state habeas application. The court of criminal

appeals denied the application on December 12, 2001, without written order. On March 26, 2002,

Aranda filed a second application for writ of habeas corpus in federal court. Then, on March 7,



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2003, the federal district court dismissed this application as time-barred under the Antiterrorism

and Effective Death Penalty Act of 1996, finding that Aranda’s federal habeas petition was due

January 2, 2000, but not filed until March 26, 2002. See 28 U.S.C. § 2244 (West 2006).

                On October 25, 2004, Aranda filed his original petition in this case for violations

of his federal civil rights pursuant to 42 U.S.C. §§ 1981, 1983, and 1985(3), claiming that appellees

deprived him of his right to relief under a “properly filed” writ of habeas corpus. According to

Aranda, although he “properly filed” his writ of habeas corpus on October 5, 1999, appellees

prevented it from being filed. Aranda contends that either the attorney general appellees prevented

his habeas corpus petition from being filed, or the court appellees “deliberately refused” to file it.

Aranda asked the district court for compensatory and punitive damages, injunctive and declaratory

relief, and equitable relief.

                The state appellees filed their motion to dismiss on November 4, 2005, arguing

that Aranda’s claim was frivolous or malicious under section 14.003(a)(2) of the civil practice

and remedies code. See Tex. Civ. Prac. & Rem. Code Ann. § 14.003(a)(2) (West 2002). According

to the state appellees, Aranda’s claim was frivolous or malicious because, among other reasons,

“Aranda has filed the same claims in three other courts” and “Aranda is estopped from re-litigating

the central issue of whether he filed a petition for writ of habeas corpus in state court.”

                On June 12, 2005, the county appellees filed a “Notice That Plaintiff Roque Tercero

Aranda Is a Vexatious Litigant and Requirement That His Lawsuit Be Dismissed Unless He Obtains

An Order From the Local Administrative Judge,” requesting that, pursuant to section 11.103(b) of

the civil practice and remedies code, the district court:



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       immediately stay the litigation and that it be dismissed no later than the 10th day after
       this notice has been filed in the event that the Plaintiff does not obtain an order from
       the local administrative judge to permit this litigation to go forward.


See id. § 11.103(b) (West 2002).

               Following a telephonic hearing with all parties, the district court entered its order of

dismissal as to the state appellees on October 26, 2006. The court’s order concluded that appellees’

“motion to dismiss should be GRANTED in accordance with Tex. Civ. Prac. & Rem. Code

§ 14.003(a)(2) as frivolous or malicious.” The district court dismissed Aranda’s claims as to the

county appellees on November 13, 2006, finding that “the Plaintiff has not obtained an order from

the local administrative judge allowing the litigation to proceed within the time period required.”

               We review a dismissal pursuant to chapter 14 under an abuse-of-discretion standard.

Presiado v. Sheffield, 230 S.W.3d 272, 274 (Tex. App.—Beaumont 2007, no pet.). A trial court has

broad discretion to dismiss an inmate’s suit as frivolous “because: (1) prisoners have a strong

incentive to litigate; (2) the government bears the cost of an in forma pauperis suit; (3) sanctions are

not effective; and (4) the dismissal of unmeritorious claims accrues to the benefit of state officials,

courts, and meritorious claimants.” Retzlaff v. Texas Dep’t of Crim. Justice, 94 S.W.3d 650, 654

(Tex. App.—Houston [14th Dist.] 2002, pet. denied). A trial court abuses its discretion if it acts

in an arbitrary or unreasonable manner without reference to guiding rules or principles. Downer

v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). Because the district court did

not state the basis on which it found Aranda’s suit frivolous, we will affirm on any basis supported

by the record. See Sellers v. Foster, 199 S.W.3d 385, 390 (Tex. App.—Fort Worth 2006, no pet.).




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               Aranda argues that his claims were not frivolous or malicious under

section 14.003(a)(2) because his claims were not, as appellees contend, substantially similar to

previous claims he had filed. See Tex. Civ. Prac. & Rem. Code Ann. § 14.003(b) (West 2002).

Under section 14.003(b), in determining whether a claim is frivolous or malicious, the court may

consider whether “the claim is substantially similar to a previous claim filed by the inmate because

the claim arises from the same operative facts.” Id. Aranda argues that his claims were not frivolous

or malicious under section 14.003(a)(2) because his claims were not, as appellees contend,

substantially similar to previous claims he had filed.

               The present suit turns on whether, as Aranda contends, he “properly filed” a petition

for habeas corpus in state court on October 5, 1999. According to Aranda, appellees prevented

his “properly filed” petition from actually being filed. In an order dated June 12, 2001, the federal

district court determined that Aranda “ha[d] not exhausted any of his claims in the State court” and,

accordingly, granted Respondent’s Motion to Dismiss for Failure to Exhaust. In its order, the federal

district court cited to sworn affidavits of the TDCJ director indicating that:


       (1)     Petitioner did not file a petition for discretionary review with the Texas Court
               of Criminal Appeals;

       (2)     no application for writ of habeas corpus in the name of Roque R. Aranda has
               been filed with the Texas Court of Criminal Appeals;

       (3)     according to the official docket sheet maintained by the District Court of
               Gaines County, Texas, the Clerk’s office received two documents from
               Petitioner during the period of time from September 15, 1999, through
               November 15, 1999—(a) a “Supplemental Report in Support of Writ” on
               November 8, 1999, and (b) another “Supplemental Report in Support of
               Application” on November 10, 1999;



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        (4)    the Gaines County District Clerk’s Office also received a document on May
               19, 1999, entitled “Application for Writ of Habeas Corpus;” however, “the
               document filed by petitioner was only a letter and was not an application for
               Writ of Habeas Corpus.”


               Aranda’s claims arise from the same operative facts as those at issue in the federal

lawsuit and, in fact, seek a determination of exactly the same question already answered by the

federal court—whether the state court habeas corpus petition was “properly filed.” Nothing in the

record supports Aranda’s contention that appellees conspired to prevent his “properly filed”

application from being filed. We conclude that Aranda’s claims are substantially similar to his

previously determined federal claim, and that the trial court did not abuse its discretion in

characterizing the petition as frivolous or malicious under section 14.003(b). See id.

               Aranda also argues that he was denied a full and fair hearing of his case and

that, despite his request, he was denied a jury trial. Under section 14.003(c), a trial court “may”

hold a hearing before dismissing a suit under section 14.003(a), but is not required to do so. Id.

§ 14.003(c); Presiado, 230 S.W.3d at 274; Thomas v. Bilby, 40 S.W.3d 166, 168

(Tex. App.—Texarkana 2001, no pet.). A trial court’s decision on whether to hold a hearing is

discretionary. See Williams v. Brown, 33 S.W.3d 410, 411 (Tex. App.—Houston [1st Dist.] 2000,

no pet.).

               According to the record, the district court did, in fact, hold a telephonic hearing

with all parties on October 26, 2006, at which Aranda was able to present his arguments. Although

Aranda contends that he was denied a jury trial, a chapter 14 dismissal is based on the pleadings

and does not contemplate the presentation of evidence before judge or jury. See Tex. Civ. Prac.



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& Rem. Code Ann. § 14.003. In addition, to the extent that Aranda complains of the manner in

which the hearing was held, telephonic hearings are expressly permitted by the rules of judicial

administration. See Tex. R. Jud. Admin. § 7(a)(6)(b). We conclude that Aranda was afforded a full

and fair hearing as contemplated under the applicable statutes.

                As to the county appellees, Aranda challenges the district court’s order dismissing

his claims for failure to obtain an order from the local administrative judge allowing the litigation

to proceed. Aranda argues that there is no evidence that he is a vexatious litigant.

                The district court’s prior determination as to whether Aranda is a vexatious litigant

is not at issue in this litigation. See Aranda v. State, No. 11-05-00246-CV, 2006 Tex. App. LEXIS

898 (Tex. App.—Eastland 2006, pet. denied) (mem. op.) (per curiam) (affirming the trial court’s

order adjudicating Aranda a vexatious litigant pursuant to section 11.101 of the civil practice

and remedies code). The only issue before us is whether—given the existing order that Aranda is

a vexatious litigant—he complied with applicable prerequisites to filing additional state lawsuits.

Aranda makes no contention that he complied with the applicable requirements, and there is

no evidence in the record that Aranda obtained the order required for the lawsuit to proceed. See

Tex. Civ. Prac. & Rem. Code Ann. § 11.101 (West 2002). We conclude that the district court

properly dismissed Aranda’s lawsuit pursuant to section 11.101 of the civil practice and remedies

code. See id.

                Having determined that Aranda’s claims are substantially similar to his previously

determined federal claim, that the hearing on Aranda’s claim conformed to applicable procedural




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rules, and that Aranda failed to comply with procedural requirements applicable to vexatious

litigants, we overrule Aranda’s issues. The judgment of conviction is affirmed.




                                            __________________________________________

                                            G. Alan Waldrop, Justice

Before Justices Patterson, Pemberton and Waldrop

Affirmed

Filed: February 27, 2009




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