Ralph O. Douglas

Opinion to: SR TJ EVK ERA GCH LCH JB JS MM TGT

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 i d . 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.