Donald Ray McCray v. Michele L. Henricks, Ren Patrick Rigby, Jr., William C. Dever, Dallas County and Joseph Phillips

• Court: Court of Appeals of Texas
• Decided: March 24, 2010
• Docket: 03-08-00225-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-08-00225-CV

Donald Ray McCray, Appellant

v.

Michele L. Henricks, Ren Patrick Rigby, Jr., William C. Dever, Dallas County and Joseph Phillips, Appellees

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT NO. D-1-GN-07-004488, HONORABLE SUZANNE COVINGTON, JUDGE PRESIDING

M E M O R A N D U M O P I N I ON

Appellant Donald Ray McCray, a pro se litigant currently in the custody of the

Texas Department of Criminal Justice, sued appellees Michele L. Henricks, Ren Patrick Rigby, Jr.,

William C. Dever, Dallas County, and Joseph Phillips, asserting various causes of action. In several

orders, the trial court dismissed McCray’s claims against all of the defendants—Henricks under the

provisions of chapter 14 of the civil practice and remedies code relating to indigent inmate litigation,

and the others because McCray had been deemed a vexatious litigant requiring him to seek

permission of the local administrative judge before filing new lawsuits, which he did not do.

See Tex. Civ. Prac. & Rem. Code Ann. §§ 11.101-.103 (West 2002). McCray appeals, asserting that

the trial court erred in dismissing his suit.

We begin by addressing whether McCray complied with the prerequisites to filing

this suit. Concluding that he did not and that dismissal was proper for that reason, we need not address whether the trial court abused its discretion by dismissing McCray’s claims against Henricks

under chapter 14 of the civil practice and remedies code.

According to the database maintained by the Office of Court Administration,

see id. § 11.104, McCray had been deemed a vexatious litigant prior to filing the suit giving rise to

this appeal. As a vexatious litigant, McCray must obtain permission from the local administrative

judge before filing a pro se suit in Texas. Id. § 11.102. While the Travis County Clerk mistakenly

accepted and filed McCray’s suit without the requisite permission, the trial court, after notice,

properly stayed proceedings to allow McCray time to seek the needed permission.

See id. § 11.103(b). McCray does not assert that he sought or received that permission, nor can we

find evidence in the record that he did. Because he did not obtain the requisite permission, the trial

court properly dismissed his suit. Id. (“[T]he court . . . shall dismiss the litigation unless the plaintiff

. . . obtains an order . . . permitting the filing.”). Accordingly, we affirm the trial court’s orders

dismissing McCray’s suit.

__________________________________________

J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Puryear and Pemberton

Affirmed

Filed: March 24, 2010