ACCEPTED 03-15-00405-CV 8231515 THIRD COURT OF APPEALS AUSTIN, TEXAS 12/14/2015 4:52:27 PM JEFFREY D. KYLE CLERK No. 03-15-00405-CV
In the Court of Appeals FILED IN 3rd COURT OF APPEALS for the Third District of Texas AUSTIN, TEXAS At Austin, Texas 12/14/2015 4:52:27 PM JEFFREY D. KYLE ___________________________________ Clerk
DARRELL J. HARPER, Appellant,
v.
THE STATE OF TEXAS, Appellees. ____________________________________
On Direct Appeal from the 98th Judicial District Court of Travis County, Texas Trial Court Cause No. D-1-GN-14004224 ____________________________________
APPELLEE THE STATE OF TEXAS’ BRIEF
____________________________________
KEN PAXTON DANIEL C. NEUHOFF* Attorney General of Texas Assistant Attorney General
CHARLES E. ROY OFFICE OF THE ATTORNEY First Assistant Attorney General GENERAL P.O. Box 12548 JAMES E. DAVIS Austin, Texas 78711-2548 Deputy Attorney General Tel: (512) 463-2080 for Civil Litigation Fax: (512) 936-2109
KAREN D. MATLOCK Counsel for Appellee Chief, Law Enforcement *Attorney-In-Charge Defense Division TABLE OF CONTENTS
STATEMENT OF THE CASE .................................................................................. 1
STATEMENT REGARDING ORAL ARGUMENT ............................................... 2
ISSUES PRESENTED...............................................................................................3
STATEMENT OF FACTS ........................................................................................4
SUMMARY OF THE ARGUMENT ........................................................................ 5
ARGUMENT .............................................................................................................6
A. Standard of Review ....................................................................................6 B. Harper is a Vexatious Litigant.................................................................... 6 1. Criteria for Finding a Litigant Vexatious......................................... 7 2. The Trial Court did not Abuse its Discretion when it found there was no Reasonable Probability that Harper will Prevail in the Current Litigation. ............................................................................8 3. The Trial Court did not abuse its discretion when it Found Harper Exceeded the Litigation Requirements of Chapter 11. .................. 10 4. The Trial Court did not Abuse its Discretion when it Dismissed Harper’s Claims after he failed to furnish the security. ................ 11
PRAYER ..................................................................................................................12
NOTICE OF ELECTRONIC FILING .....................................................................14
CERTIFICATE OF SERVICE ................................................................................14
CERTIFICATE OF COMPLIANCE .......................................................................15 TABLE OF AUTHORITIES
Cases
BMC Software Belg. N.V. v. Marchand, 83 S.W.3d 789, 801 (Tex. 2002) ...............6
Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998)). ..............................................6
City of Hempstead v. Kmiec, 902 S.W.2d 118, 122 (Tex. App.—Houston [1st Dist.]
1995, no writ) ..........................................................................................................9
City of LaPorte v. Barfield, 898 S.W.2d 288, 291 (Tex. 1995).................................8
Cronen v. Ray, 2006 WL 2547989, at *4 (Tex. App.—Houston [14th Dist.] 2006,
pet. Denied)(mem. op.) ...........................................................................................9
Dep’t of Agric. & Env’t v. Printing Indus. Ass’n of Tex., 600 S.W.2d 264 (Tex.
1980) .......................................................................................................................8
Douglas v. American Title Co., 196 S.W.3d 876, 879 (Tex. App.—Houston [1st
Dist.] 2006, no pet.) ................................................................................................6
Harris v. Rose, 204 S.W.3d 903, 905 (Tex. App.—Dallas 2006, no pet.) ..........6, 10
Lowe v. Texas Tech. Univ., 540 S.W.2d 297, 298-99 (Tex. 1976) ........................8, 9
Nebout v. City of Hitchcock, 71 F. Supp. 2d 702, 707 (S.D. Tex. 1999) ..................8
Univ. of Texas Med. Branch v. York, 871 S.W.2d 175, 177 (Tex. 1994) ..............8, 9
ii Statutes
TEX. CIV. PRAC. & REM. CODE § 11.051................................................................6, 7
TEX. CIV. PRAC. & REM. CODE § 11.052....................................................................7
TEX. CIV. PRAC. & REM. CODE § 11.054......................................................... 7, 8, 11
TEX. CIV. PRAC. & REM. CODE § 11.055....................................................................7
TEX. CIV. PRAC. & REM. CODE § 11.056....................................................................7
TEX. CIV. PRAC. & REM. CODE § 11.057..................................................................12
TEX. CIV. PRAC. & REM. CODE § 11.101....................................................................7
TEX. CIV. PRAC. & REM. CODE § 11.102....................................................................7
TEX. CIV. PRAC. & REM. CODE § 101.021..................................................................9
TEX. CIV. PRAC. & REM. CODE § 101.022..................................................................9
TEX. CIV. PRAC. & REM. CODE § 101.057..................................................................9
iii STATEMENT OF THE CASE
On October 13, 2014, Plaintiff-Appellant Darrell J. Harper (“Harper”), an
offender currently incarcerated in the Texas Department of Criminal Justice
(“TDCJ”) Ellis Unit, filed suit for damages in the amount of $3,000,000 against the
State of Texas for harassment, entrapment, false incarceration, false arrest and
malicious prosecution. C.R. at 4-5. On November 18, 2014, Texas filed its motion
to have Harper declared a vexatious litigant under Chapter 11 of the Texas Civil
Practice and Remedies Code. C.R. at 19.
On January 20, 2015, the district court held a hearing and granted Texas’
motion to have Harper declared a vexatious litigant and ordered him to furnish
security in the amount of $2500 by March 2, 2015. C.R. at 86. Harper failed to
furnish the required security on time. On May 29, 2015, the district court entered its
Final Judgment that Harper was determined to be vexatious and failed to furnish the
required security and dismissed his case as to all claims and Defendants. C.R. at 254.
1 STATEMENT REGARDING ORAL ARGUMENT
The defendant-appellee, the State of Texas, does not request oral argument before the Court.
2 ISSUES PRESENTED
Whether the district court abused its discretion when it concluded that Harper is a vexatious litigant when, within the past seven years, he commenced, prosecuted, or maintained at least nine litigations as a pro se litigant, not in small claims court, that were finally determined adversely to him?
Whether the district court abused its discretion when it concluded that Harper is a vexatious litigant when there is not a reasonable probability that he would prevail in the current litigation against the defendant?
3 STATEMENT OF FACTS
Harper was incarcerated for the offense of terroristic threat. C.R. 4-5 & 19.
Since Mar. 1, 2011, Mr. Harper has commenced, prosecuted or maintained 12
separate civil lawsuits. Nine of these cases have been finally determined adversely
to Mr. Harper.
On Aug. 20, 2012, Harper v. State of Texas, No. D-1-GN-11-000623, was
dismissed for want of prosecution. C.R. 31. On Dec. 19, 2012, Harper v. State of
Texas, No. D-1-GN-12-002702, was dismissed with prejudice. C.R. 34. On Oct. 8,
2013, Harper v. State of Texas, et al., No. D-1-GN-12-003417, was dismissed with
prejudice. C.R. 36-37. On Aug. 8, 2014, Harper v. State of Texas, et al., No. D-1-
GN-12-003624, was dismissed for want of prosecution. C.R. 45. On Aug. 8, 2014,
Harper v. Grizzard, No. D-1-GN-12-003656, was dismissed for want of prosecution.
C.R. 45. On Aug. 8, 2014, Harper v. City of Houston, No. D-1-GN-12-003735, was
dismissed for want of prosecution. C.R. 45. On Aug. 8, 2014, Harper v. Knutson,
No. D-1-GN-12-003820, was dismissed for want of prosecution. C.R. 45. On Aug.
25, 2014, Harper v. City of Austin, No. D-1-GN-13-001126, was dismissed for want
of prosecution. C.R. 55. On Nov. 14, 2014, Harper v. Tex. Comm’n on Jail
Standards, No. D-1-GN-14-001263, was dismissed without prejudice pursuant to
Chapter 14 of the Texas Civil Practice and Remedies Code. C.R. 59.
A total of nine cases have been determined adversely to Harper.
4 SUMMARY OF THE ARGUMENT
The trial court did not abuse its discretion because Harper is a vexatious
litigant and was properly dismissed by the district court after he failed to furnish
security. Harper’s claims have no reasonable probability to prevail because he
cannot overcome the State of Texas’ entitlement to sovereign immunity.
Furthermore, Harper exceeds the requisite number of filings in the past seven years
to qualify as a vexatious litigant.
5 ARGUMENT
A. Standard of Review.
A trial court’s determination that a Plaintiff is a vexatious litigant is reviewed
under an abuse of discretion standard. Harris v. Rose, 204 S.W.3d 903, 905 (Tex.
App.—Dallas 2006, no pet.); Douglas v. American Title Co., 196 S.W.3d 876, 879
(Tex. App.—Houston [1st Dist.] 2006, no pet.). The Court can only find an abuse of
discretion if the trial court “acts in an arbitrary or capricious manner without
reference to any guiding rules or principles.” Harris, 204 S.W.3d at 905 (quoting
Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998)). “The court’s decision must be
‘so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.’”
Id. (quoting BMC Software Belg. N.V. v. Marchand, 83 S.W.3d 789, 801 (Tex.
2002)). Thus the Court must apply these principles when determining whether the
trial court’s application of the vexatious litigant statute constitutes an abuse of
discretion.
B. Harper is a Vexatious Litigant.
The trial court found Harper to be a vexatious litigant and ordered him to
furnish security in the amount of $2500 by March 2, 2015 to proceed in the case.
C.R. 86. Chapter 11 provides that a defendant may move the court for an order
determining that a plaintiff is vexatious and requiring the plaintiff to furnish security
for the defendant’s benefit to proceed with his case. TEX. CIV. PRAC. & REM. CODE
6 § 11.051. On the filing of a motion under § 11.051, the litigation is stayed until after
the motion’s disposition. TEX. CIV. PRAC. & REM. CODE § 11.052. If, after hearing
the evidence on the motion, the Court grants the motion, it “shall order the plaintiff
to furnish security for the benefit of the moving defendant” to be paid by a date
determined by the Court. TEX. CIV. PRAC. & REM. CODE § 11.055. If the plaintiff
fails to pay the security within the court’s deadline, the court shall dismiss the
litigation. TEX. CIV. PRAC. & REM. CODE § 11.056 (emphasis added). The word
“shall” shows that this is not discretionary. This is a mandatory requirement.
Additionally, a court may, sua sponte or on any party’s motion, issue an order
prohibiting a person from filing additional pro se litigation in Texas unless the
person first obtains permission to sue from a local administrative judge. TEX. CIV.
PRAC. & REM. CODE § 11.101. The administrative judge screens subsequent
litigations to ensure each: (1) has merit; and (2) was not filed for harassment or delay.
TEX. CIV. PRAC. & REM. CODE § 11.102. The administrative judge has discretion
regarding whether to require the furnishing of security for the defendant’s benefit.
TEX. CIV. PRAC. & REM. CODE § 11.102(e).
1. Criteria for Finding a Litigant Vexatious
Under section 11.054, a court may find a plaintiff a vexatious litigant if the
defendant shows there is no reasonable probability the plaintiff will prevail in the
litigation against the defendant, and that the plaintiff, in the seven preceding years,
7 “has commenced, prosecuted, or maintained [pro se] at least five litigations other
than in a small claims court” that were: (1) finally determined against him; (2) are
permitted to remain pending at least two years without having been brought to trial;
or (3) “determined by a trial or appellate court to be frivolous or groundless under
state or federal laws or rules of procedure.” TEX. CIV. PRAC. & REM. CODE §
11.054(1). The claims may be filed in either state or federal court.
2. The Trial Court did not Abuse its Discretion when it found there was no Reasonable Probability that Harper will Prevail in the Current Litigation.
The trial court did not abuse its discretion when it found that Harper failed to
overcome the State of Texas’s protection from suit by sovereign immunity. It is well
settled that sovereign immunity precludes suit against the State unless the
Legislature creates a waiver through “clear and unambiguous language.” See City of
LaPorte v. Barfield, 898 S.W.2d 288, 291 (Tex. 1995); Dep’t of Agric. & Env’t v.
Printing Indus. Ass’n of Tex., 600 S.W.2d 264 (Tex. 1980). The State of Texas
cannot be held liable for causes of action brought under Texas common law unless
the Texas Legislature has expressly waived governmental immunity. Nebout v. City
of Hitchcock, 71 F. Supp. 2d 702, 707 (S.D. Tex. 1999)(holding that a Texas
municipality cannot be held liable for causes of action brought under Texas common
law unless the legislature has expressly waived governmental immunity)(citing
Univ. of Texas Med. Branch v. York, 871 S.W.2d 175, 177 (Tex. 1994)). “This
immunity has only been waived as to claims brought pursuant to the Texas Tort 8 Claims Act.” Id. (citing Lowe v. Texas Tech. Univ., 540 S.W.2d 297, 298-99 (Tex.
1976)). The Texas Tort Claims Act (TTCA) creates a limited waiver of sovereign
immunity for certain damages: (1) arising from the operation of a motor-driven
vehicle or motor-driven equipment; (2) those caused by a condition or use of tangible
personal or real property; or (3) certain claims arising from premises defects. TEX.
CIV. PRAC. & REM. CODE § 101.021 & 101.022.
However, the TTCA’s waiver of sovereign immunity does not apply to a claim
“arising out of assault, battery, false imprisonment, or any other intentional tort.”
TEX. CIV. PRAC. & REM. CODE § 101.057. This is an express non-waiver of sovereign
immunity. False arrest, malicious prosecution and false imprisonment are intentional
torts and the Tort Claims Act does not waive immunity for intentional torts. City of
Hempstead v. Kmiec, 902 S.W.2d 118, 122 (Tex. App.—Houston [1st Dist.] 1995,
no writ)(Holding plaintiff’s claims fail because most of plaintiff’s allegations are for
intentional torts—false arrest, malicious prosecution, defamation and the Tort
Claims Act does not waive immunity for intentional torts); Cronen v. Ray, 2006 WL
2547989, at *4 (Tex. App.—Houston [14th Dist.] 2006, pet. Denied)(mem.
op.)(Holding that appellant sued appellees for false arrest and false imprisonment.
These constitute intentional torts and therefore are barred.).
Harper sued the state of Texas for harassment, entrapment, false incarceration
(imprisonment), false arrest, and malicious prosecution. Accordingly, Harper’s
9 claims against the State of Texas for malicious prosecution, false arrest and false
imprisonment are barred insofar as they are intentional torts and the State of Texas
does not waive sovereign immunity for intentional torts. The trial court did not abuse
its discretion by ruling so.
Harper’s claims that the State of Texas is liable for harassment and entrapment
are not covered by the Tort Claims Act’s limited waiver of immunity. Harassment
and entrapment do not fall into one of the three claims giving rise to the limited
waiver of sovereign immunity. They do not arise from the operation or use of a motor
vehicle. They are not caused by a condition or use of tangible personal or real
property. Finally, they are not claims that arise from a premises defect. Harper’s
claims against the State of Texas for harassment and entrapment are barred by the
doctrine of sovereign immunity, as the trial court correctly found. The trial court
referred to these rules and guidelines when making its determination that Harper had
not reasonable probability of success in this litigation. The trial court did not act “in
an arbitrary or capricious manner without reference to any guiding rules or
principles.” Harris, 204 S.W.3d at 905. To the contrary, the trial court followed both
Chapter 11 and Chapter 101 of the Texas Civil Practice and Remedies Code as well
as relevant case law in making its determination.
3. The Trial Court did not abuse its discretion when it Found Harper Exceeded the Litigation Requirements of Chapter 11.
10 The trial court found that, within the seven years before the State of Texas
filed its motion to declare Harper a vexatious litigant, Harper filed at least nine
litigations, not in small claims court that meet the criteria of Chapter 11. Harper only
needed to commence, prosecute, or maintain five litigations as a pro se litigant other
than in a small claims court that were finally determined adversely to him. TEX. CIV.
PRAC. & REM. CODE. §11.054(1)(A). All of Mr. Harper’s nine previous litigations
were dismissed and, as such, were determined adversely to Mr. Harper. C.R. 31, 34,
36-37, 45, 55, & 59. In order to be determined a vexatious litigant, Mr. Harper need
only have filed five such claims in the past seven years, which criteria he has
exceeded. See Supra Appellee’s Brief at 4. Accordingly, the trial court determined
Harper qualifies as a vexatious litigant under section 11.054(1).
The State of Texas sent a notice of hearing and an amended notice of hearing to
Harper, informing him that a hearing on the motion to declare him vexatious would
be held at 2:00 p.m. on Tuesday, January 20, 2014. C.R. 61-62, 68-69. The trial court
also sent a letter informing the warden at Harper’s unit of assignment to make Harper
available to appear at the hearing by phone on the date of the hearing. C.R. 80. The
trial court held the hearing and declared Harper to a vexatious litigant pursuant to
section 11.054 of the Texas Civil Practice and Remedies Code and ordered him to
furnish security of $2500 by March 2, 2015. This was not an abuse of discretion.
4. The Trial Court did not Abuse its Discretion when it Dismissed Harper’s Claims after he failed to furnish the security. 11 The trial court did not abuse its discretion when, pursuant to section 11.057
of the Texas Civil Practice and Remedies Code they dismissed Harper’s litigation
after he failed to furnish security by March 2, 2015. “The Court shall dismiss a
litigation as to a moving defendant if a plaintiff ordered to furnish security does not
furnish the security within the time set by the order.” Tex. Civ. Prac. & Rem. Code
§ 11.057. This is not discretionary. If a plaintiff does not furnish the security the case
will be dismissed. On May 29, 2015, more than two months after the court required
Harper to furnish security and he did not do so, the court dismissed his case. C.R.
254. The trial court did not abuse its discretion when it dismissed Harper’s case
because it did not have discretion to do so, the outcome was statutorily mandated.
PRAYER
Defendant State of Texas requests the Court affirm the decision of the court
below in declaring Harper to be a vexatious litigant and dismissing his case when he
failed to furnish the required security.
Date: December 14, 2015
Respectfully submitted,
KEN PAXTON Attorney General of Texas
CHARLES E. ROY First Assistant Attorney General 12 JAMES E. DAVIS Deputy Attorney General for Civil Litigation
KAREN D. MATLOCK Assistant Attorney General Chief, Law Enforcement Defense Division
/s/ Daniel C. Neuhoff DANIEL C. NEUHOFF Assistant Attorney General Attorney-in-Charge Texas Bar No. 24088123
Law Enforcement Defense Division P. O. Box 12548, Capitol Station Austin TX 78711 (512) 463-2080/Fax (512) 936-2109 daniel.neuhoff@texasattorneygeneral.gov
ATTORNEYS FOR APPELLEE STATE OF TEXAS
13 NOTICE OF ELECTRONIC FILING
I, DANIEL C. NEUHOFF, Assistant Attorney General of Texas, do hereby certify that I have electronically submitted for filing, a true and correct copy of the above and foregoing Brief in accordance with the electronic filing system for the Third Court of Appeals on this the 14th day of December, 2015.
/s/ Daniel C. Neuhoff DANIEL C. NEUHOFF Assistant Attorney General
CERTIFICATE OF SERVICE
I, DANIEL C. NEUHOFF, Assistant Attorney General of Texas, certify that a true and correct copy of the above and foregoing APELLEE’S BRIEF has been served by placing it in the United States Mail, postage prepaid, on December 14, 2015, addressed to: Darrell J. Harper, No.1957729 TDCJ - Ellis Unit 1697 FM 980 Huntsville, TX 77343 Plaintiff Pro Se
/s/ Daniel C. Neuhoff DANIEL C. NEUHOFF Assistant Attorney General
14 CERTIFICATE OF COMPLIANCE
Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), the undersigned certifies this brief complies with the type-volume limitations of Texas Rule of Appellate Procedure 9.4.
1. Exclusive of the exempted portions in Texas Rule of Appellate Procedure 9.4(i)(1, this brief contains 2,046 words, including headings and footnotes.
2. This brief has been prepared in proportionally spaced typeface using: Microsoft Word 2010 in Times New Roman, size 14 for text.
3. The undersigned understands a material misrepresentation in completing this certificate, or circumvention of the type-volume limits in Texas Rule of Appellate Procedure 9.4 may result in the court’s striking the brief and imposing sanctions against the person signing the brief.
/s/ Daniel C. Neuhoff DANIEL C. NEUHOFF Assistant Attorney General
15 No. 03-15-00405-CV
In the Court of Appeals for the Third District of Texas At Austin, Texas
___________________________________
THE STATE OF TEXAS, Appellees. ____________________________________
On Direct Appeal from the 98th Judicial District Court of Travis County, Texas Trial Court Cause No. D-1-GN-14004224 ____________________________________
____________________________________ APPENDIX TABLE OF CONTENTS
Exhibit A Order dated Jan. 20, 2015
Exhibit B Final Judgment dated May 29, 2015
Exhibit C Tx. Civ. Prac. & Rem. §11.051
Exhibit D Tx. Civ. Prac. & Rem. §11.052
Exhibit E Tx. Civ. Prac. & Rem. §11.054
Exhibit F Tx. Civ. Prac. & Rem. §11.055
Exhibit G Tx. Civ. Prac. & Rem. §11.056
Exhibit H Tx. Civ. Prac. & Rem. §11.057
Exhibit I Tx. Civ. Prac. & Rem. §11.101
Exhibit J Tx. Civ. Prac. & Rem. §11.102
Exhibit K Tx. Civ. Prac. & Rem. §101.021
Exhibit L Tx. Civ. Prac. & Rem. §101.022
Exhibit M Tx. Civ. Prac. & Rem. §101.057