TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-23-00768-CV
Mark Joseph Watson, Appellant
v.
City of San Marcos, Appellee
FROM THE 428TH DISTRICT COURT OF HAYS COUNTY NO. 23-2549, THE HONORABLE JOE POOL, JUDGE PRESIDING
MEMORANDUM OPINION
Mark Joseph Watson, appearing pro se, appeals the trial court’s order declaring
him a vexatious litigant under Chapter 11 of the Texas Civil Practice and Remedies Code
(Chapter 11) and ordering that he post a security bond in the amount of $5,000 or risk dismissal
of his suit against the City of San Marcos. See generally Tex. Civ. Prac. & Rem. Code
§§ 11.001-.104; see id. § 11.101(c) (providing for appeal of order declaring person vexatious
litigant). Under Chapter 11, the City bore the burden to show that there is not “a reasonable
probability” Watson would prevail in his suit against it, and that Watson met one of three other
statutory criteria to be a vexatious litigant. See id. § 11.054(1)-(3) (describing three alternative
criteria). Because the trial court did not abuse its discretion in determining that the City met this
statutory burden, we will affirm the trial court’s order. BACKGROUND
In October 2023, Watson filed a pro se suit against the City in a pleading titled
“Complaint for a Civil Case of Negligent Conduct Resulting in Tortious Interference in a Real
Estate Transaction and Unjust Enrichment.” According to his pleadings, when Watson was in
the process of selling a lot located at 803 Gravel Street in San Marcos, he was informed by the
title company that the City had two liens on the property. Watson alleged that, although he
contacted someone and left a voicemail stating that the liens needed to be removed prior to
closing, he was informed at closing that the City would not release the liens and that the liens
would have to be paid prior to closing. Watson alleged that, to avoid the City later arguing
that he had agreed to pay the liens, he executed a document to reserve his rights pursuant to
section 1.308 of the Texas Business and Commerce Code. See Tex. Bus. & Com. Code § 1.308
(providing that party that, with explicit reservation of rights, performs in manner demanded does
not thereby prejudice rights reserved). In his request for relief, Watson cited to chapter 104 of
Texas Civil Practice and Remedies Code, asserting that it (1) “sets State liability for conduct of
public servants,” (2) “covers the City of San Marcos employees,” (3) “covers conduct including
deprivation of rights with reckless disregard,” and (4) “sets the limits on the amount of
recoverable damages to $300,000 for a single occurrence.” See Tex. Civ. Prac. & Rem. Code
ch. 104 (governing state liability for conduct of public servants). Watson sought damages of
$522,003.54, which included $500,000 for two occurrences of “deprivation of reserved rights,”
$6,003.54 in costs and expenses related to the two liens, and $16,000 for “civil case preparation.”
The City filed a motion to declare Watson a vexatious litigant and to require him
to post security. See id. § 11.051. The City argued that there was no reasonable probability that
Watson would prevail in the litigation and that, in the immediately preceding seven-year period,
2 Watson had “commenced, prosecuted, or maintained at least five litigations as a pro se litigant
other than in small claims court that have been finally determined adversely” to him. See id.
§ 11.054(1)(A). The City also argued that, after a litigation had been finally determined against
him, Watson repeatedly relitigated, or attempted to relitigate, the same 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.
See id. § 11.054(2)(B).
After a hearing on the City’s motion, see id. § 11.053, the trial court signed an
order declaring Watson a vexatious litigant, ordering him to post a security bond of $5,000 with
the court clerk or risk dismissal of his suit, and prohibiting Watson from filing any new litigation
without the permission of the local administrative judge, id. §§ 11.055, .056, .101, .102. Watson
filed a request for findings of fact and conclusions of law but did not submit proposed findings or
conclusions. The court did not file findings of fact or conclusions of law, and Watson perfected
this appeal. See id. § 11.101(c) (“A litigant may appeal from a prefiling order entered under
Subsection (a) designating the person a vexatious litigant.”).
DISCUSSION
In Chapter 11, “the legislature struck a balance between Texans’ right of access to
their courts and the public interest in protecting defendants from those who abuse our civil
justice system.” Leonard v. Abbott, 171 S.W.3d 451, 455 (Tex. App.—Austin 2005, pet. denied).
Chapter 11 provides that a defendant in “a litigation in this state” may move for an order
determining that the plaintiff is a vexatious litigant. Tex. Civ. Prac. & Rem. Code § 11.051; see
id. § 11.001(2) (defining “litigation” to mean “a civil action commenced, maintained, or pending
3 in any state or federal court”), (5) (defining “plaintiff” to mean “an individual who commences
or maintains a litigation pro se”). After a hearing on the evidence, “[a] court may find a plaintiff
a vexatious litigant if the defendant shows,” as relevant here:
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 at least five litigations as a pro se litigant other than in a small claims court that have been: (A) finally determined adversely to the plaintiff;. . . or (C) determined by a trial or appellate court to be frivolous or groundless under state or federal laws or rules of procedure; . . . [or] (2) relitigates or attempts to relitigate, pro se, . . .(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.
Id. § 11.054. We review a trial court’s determination that a plaintiff is a vexatious litigant for an
abuse of discretion. Leonard, 171 S.W.3d at 459. “However, because a trial court may exercise
its discretion to declare a party a vexatious litigant only if it first makes prescribed statutory
evidentiary findings, we also review the trial court’s subsidiary findings under chapter 11 for
legal and factual sufficiency.” See id. A legal sufficiency challenge fails “if there is no more
than a scintilla of evidence to support the finding,” and a factual sufficiency challenge fails
unless the “ruling is so contrary to the overwhelming weight of the evidence as to be clearly
wrong and manifestly unjust.” Id.
Watson raises three issues on appeal. First, Watson asserts that the trial court
lacked jurisdiction to declare him a vexatious litigant because (1) he was not the “plaintiff” in the
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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-23-00768-CV
Mark Joseph Watson, Appellant
v.
City of San Marcos, Appellee
FROM THE 428TH DISTRICT COURT OF HAYS COUNTY NO. 23-2549, THE HONORABLE JOE POOL, JUDGE PRESIDING
MEMORANDUM OPINION
Mark Joseph Watson, appearing pro se, appeals the trial court’s order declaring
him a vexatious litigant under Chapter 11 of the Texas Civil Practice and Remedies Code
(Chapter 11) and ordering that he post a security bond in the amount of $5,000 or risk dismissal
of his suit against the City of San Marcos. See generally Tex. Civ. Prac. & Rem. Code
§§ 11.001-.104; see id. § 11.101(c) (providing for appeal of order declaring person vexatious
litigant). Under Chapter 11, the City bore the burden to show that there is not “a reasonable
probability” Watson would prevail in his suit against it, and that Watson met one of three other
statutory criteria to be a vexatious litigant. See id. § 11.054(1)-(3) (describing three alternative
criteria). Because the trial court did not abuse its discretion in determining that the City met this
statutory burden, we will affirm the trial court’s order. BACKGROUND
In October 2023, Watson filed a pro se suit against the City in a pleading titled
“Complaint for a Civil Case of Negligent Conduct Resulting in Tortious Interference in a Real
Estate Transaction and Unjust Enrichment.” According to his pleadings, when Watson was in
the process of selling a lot located at 803 Gravel Street in San Marcos, he was informed by the
title company that the City had two liens on the property. Watson alleged that, although he
contacted someone and left a voicemail stating that the liens needed to be removed prior to
closing, he was informed at closing that the City would not release the liens and that the liens
would have to be paid prior to closing. Watson alleged that, to avoid the City later arguing
that he had agreed to pay the liens, he executed a document to reserve his rights pursuant to
section 1.308 of the Texas Business and Commerce Code. See Tex. Bus. & Com. Code § 1.308
(providing that party that, with explicit reservation of rights, performs in manner demanded does
not thereby prejudice rights reserved). In his request for relief, Watson cited to chapter 104 of
Texas Civil Practice and Remedies Code, asserting that it (1) “sets State liability for conduct of
public servants,” (2) “covers the City of San Marcos employees,” (3) “covers conduct including
deprivation of rights with reckless disregard,” and (4) “sets the limits on the amount of
recoverable damages to $300,000 for a single occurrence.” See Tex. Civ. Prac. & Rem. Code
ch. 104 (governing state liability for conduct of public servants). Watson sought damages of
$522,003.54, which included $500,000 for two occurrences of “deprivation of reserved rights,”
$6,003.54 in costs and expenses related to the two liens, and $16,000 for “civil case preparation.”
The City filed a motion to declare Watson a vexatious litigant and to require him
to post security. See id. § 11.051. The City argued that there was no reasonable probability that
Watson would prevail in the litigation and that, in the immediately preceding seven-year period,
2 Watson had “commenced, prosecuted, or maintained at least five litigations as a pro se litigant
other than in small claims court that have been finally determined adversely” to him. See id.
§ 11.054(1)(A). The City also argued that, after a litigation had been finally determined against
him, Watson repeatedly relitigated, or attempted to relitigate, the same 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.
See id. § 11.054(2)(B).
After a hearing on the City’s motion, see id. § 11.053, the trial court signed an
order declaring Watson a vexatious litigant, ordering him to post a security bond of $5,000 with
the court clerk or risk dismissal of his suit, and prohibiting Watson from filing any new litigation
without the permission of the local administrative judge, id. §§ 11.055, .056, .101, .102. Watson
filed a request for findings of fact and conclusions of law but did not submit proposed findings or
conclusions. The court did not file findings of fact or conclusions of law, and Watson perfected
this appeal. See id. § 11.101(c) (“A litigant may appeal from a prefiling order entered under
Subsection (a) designating the person a vexatious litigant.”).
DISCUSSION
In Chapter 11, “the legislature struck a balance between Texans’ right of access to
their courts and the public interest in protecting defendants from those who abuse our civil
justice system.” Leonard v. Abbott, 171 S.W.3d 451, 455 (Tex. App.—Austin 2005, pet. denied).
Chapter 11 provides that a defendant in “a litigation in this state” may move for an order
determining that the plaintiff is a vexatious litigant. Tex. Civ. Prac. & Rem. Code § 11.051; see
id. § 11.001(2) (defining “litigation” to mean “a civil action commenced, maintained, or pending
3 in any state or federal court”), (5) (defining “plaintiff” to mean “an individual who commences
or maintains a litigation pro se”). After a hearing on the evidence, “[a] court may find a plaintiff
a vexatious litigant if the defendant shows,” as relevant here:
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 at least five litigations as a pro se litigant other than in a small claims court that have been: (A) finally determined adversely to the plaintiff;. . . or (C) determined by a trial or appellate court to be frivolous or groundless under state or federal laws or rules of procedure; . . . [or] (2) relitigates or attempts to relitigate, pro se, . . .(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.
Id. § 11.054. We review a trial court’s determination that a plaintiff is a vexatious litigant for an
abuse of discretion. Leonard, 171 S.W.3d at 459. “However, because a trial court may exercise
its discretion to declare a party a vexatious litigant only if it first makes prescribed statutory
evidentiary findings, we also review the trial court’s subsidiary findings under chapter 11 for
legal and factual sufficiency.” See id. A legal sufficiency challenge fails “if there is no more
than a scintilla of evidence to support the finding,” and a factual sufficiency challenge fails
unless the “ruling is so contrary to the overwhelming weight of the evidence as to be clearly
wrong and manifestly unjust.” Id.
Watson raises three issues on appeal. First, Watson asserts that the trial court
lacked jurisdiction to declare him a vexatious litigant because (1) he was not the “plaintiff” in the
underlying proceeding and, consequently not properly the subject of a Chapter 11 motion, and
(2) the “matter was never referred to the Local Administrative Judge, as required by statute.”
Second, Watson challenges the evidence supporting a finding that he had commenced at least
4 five pro se litigations in the previous seven-year period that had been determined adversely to
him. Third, Watson asserts that the vexatious litigant determination was based on false
information and “to silence a legitimate legal claim and thwart a lawful debt.” We construe
Watson’s complaints as challenges to the trial court’s determinations of the prescribed statutory
evidentiary findings and will review those findings to determine whether the trial court abused its
discretion in declaring Watson a vexatious litigant.
No reasonable probability that Watson would prevail
Watson’s original petition in this case, which was filed in Hays County District
Court on October 2, 2023, and assigned Cause No. 23-2549, is identical to one he filed against
the City on March 1, 2022, in Hays County District Court (Cause No. 22-0424). The original
petition in this case even bears the March 1, 2022 date on the cover page, on the footer of each
page in the pleading, and in the signature block. In Cause No. 22-0424, the City filed a plea to
the jurisdiction, which the trial court granted. Watson appealed the trial court’s dismissal order
in Cause No. 22-0424 to this Court, and we affirmed the trial court’s order after concluding that
Watson’s claims were all barred by sovereign immunity. See Watson v. City of San Marcos,
No. 03-22-00307-CV, 2023 WL 3010938, at *3-4 (Tex. App.—Austin Apr. 20, 2023, pet.
denied) (mem. op.). Watson sought review of this Court’s judgment in the Texas Supreme
Court, which denied the petition for review.
The City asserted in its Chapter 11 motion that Watson’s claims were barred by
sovereign immunity and by res judicata. See Rosetta Res. Operating, LP v. Martin, 645 S.W.3d
212, 225 (Tex. 2022) (noting that res judicata requires proof of prior final judgment on merits by
court of competent jurisdiction, identity of parties, and second action based on same claims as
5 were raised or could have been raised in first action). Evidence that this Court previously
determined that identical claims brought by Watson against the City were barred by sovereign
immunity supports the trial court’s determination that Watson’s claims were barred by both
sovereign immunity and the doctrine of res judicata. The trial court did not err in determining
that the City met its burden of demonstrating that there was not a reasonable probability that
Watson would prevail on his claims against the City. See Tex. Civ. Prac. & Rem. Code § 11.054.
Evidence of at least five litigations in the preceding seven-year period decided adversely
The City presented evidence of at least five litigations in the previous seven-year
period that were decided adversely to Watson and thereby met one of the three other statutory
criteria required to declare Watson a vexatious litigant. See id. § 11.054(1)(A).1 These
litigations are:
• Watson v. City of San Marcos, No. 03-22-00307-CV, 2023 WL 3010938 (Tex. App.—Austin Apr. 20, 2023, pet. denied); affirming trial court order granting City of San Marcos’s plea to the jurisdiction and dismissing with prejudice Watson’s claims against the City.
• Watson v. Bell County, Texas; No. 6:19-CV-00626-ADA, 2020 WL 10063083, W.D. Texas (Waco Division), January 27, 2020; granting motion to dismiss Watson’s pro se Complaint.2
• Watson v. Texas State Univ., No. 1:20-CV-553, W.D. Texas (Austin Division); granting motion to dismiss Watson’s pro se Complaint as frivolous.3
1 Although Watson asserts that he filed only one litigation as a pro se plaintiff, the court records for each of the litigations plainly state that Watson was appearing pro se. 2 The United States Court of Appeals for the Fifth Circuit concluded that Watson’s appeal of the district court’s dismissal order was frivolous, dismissed the appeal, and warned Watson that future frivolous, repetitive, or abusive filings may result in sanctions. See Watson v. Bell County, Texas; No. 20-50072, 814 Fed. Appx. 890 (5th Cir. 2020). 3 The United States Court of Appeals for the Fifth Circuit concluded that Watson’s appeal of the district court’s dismissal order was frivolous, dismissed the appeal, and sanctioned
6 • Watson v. Texas State Univ., No. 03-20-00566-CV, 2020 WL 7757362 (Tex. App.—Austin Dec. 30, 2020, no pet.); dismissing Watson’s appeal for want of jurisdiction.
• In re Watson, No. 03-21-00231-CV, 2021 WL 2006478, (Tex. App.—Austin May 19, 2021, orig. proceeding); dismissing Watson’s petition for writ of mandamus seeking relief against the Texas Comptroller of Public Accounts for want of jurisdiction.
Each of these is a section 11.054(1)(A) qualifying litigation. See Tex. Civ. Prac. & Rem. Code
§ 11.054(1)(A). The evidence is legally and factually sufficient to support the trial court’s
determination that Watson had commenced, prosecuted, or maintained at least five litigations
as a pro se litigant that were determined adversely to him. The City met its burden under
section 11.054(1)(A).
Moreover, the City also demonstrated that Watson met another of the three
statutory criteria to be a vexatious litigant because, after Cause No. 22-0424 in Hays County
District Court had been finally determined adversely to him, he filed an identical pleading
(the original petition in the underlying proceedings) in Hays County District Court. See id.
§ 11.054(2)(B) (providing statutory criteria for declaring plaintiff vexatious litigant if, after
litigation has been finally determined against him, he relitigates or attempts to relitigate the cause
of action, claim, controversy, or any issues of fact or law determined by final determination
against same defendant).
In his appellate briefing, Watson asserts that the trial court lacked jurisdiction to
declare him a vexatious litigant because he was not the “plaintiff” in the underlying proceeding.
This position is directly contradicted by the record, which includes Watson’s original petition
filed by him as plaintiff against the City. Watson also asserts that the trial court could not
Watson in the amount of $500. See Watson v. Texas State Univ.; No. 20-50436, 829 F.App’x 686 (5th Cir. 2020).
7 declare him a vexatious litigant because, in his view, only the local administrative judge has the
authority to declare a person a vexatious litigant. We disagree. While the local administrative
judge has the authority to consider the filing request of a person already deemed a vexatious
litigant, see id. § 11.102, there is no such restriction on which court may entertain and rule on a
motion to declare a plaintiff a vexatious litigant or to enter a prefiling order. See id. §§ 11.051
(providing that “in a litigation in this state, the defendant may [] move the court for an order
determining that the plaintiff is a vexatious litigant”), .101 (“A court may, on is own motion or
the motion of any party, enter” a prefiling order) (emphases added). Finally, Watson complains
that the trial court did not file findings of fact and conclusions of law despite his request that it
do so. However, a trial court is not required to file findings of fact or conclusions of law here
“because the vexatious litigant issue was not tried in a conventional bench trial.” Willms v.
Americas Tire Co., Inc., 190 S.W.3d 796, 802 (Tex. App.—Dallas 2000, pet. denied); see IKB
Indus. (Nigeria) Ltd. V. Pro-Line Corp., 938 S.W. 2d 440, 442 (Tex. 1997) (noting that purpose
of rule 296 is to give party right to findings of fact and conclusions of law following
conventional trial on merits and that in other situations party is not entitled to findings and
conclusions because they are often unnecessary and requiring them in every case would unduly
burden trial courts).
CONCLUSION
The trial court’s determinations that the City met its burden of establishing the
criteria for declaring Watson a vexatious litigant are supported by legally and factually sufficient
evidence. We conclude that the trial court did not abuse its discretion in declaring Watson a
vexatious litigant, and we therefore affirm the trial court’s order.
8 __________________________________________ Chari L. Kelly, Justice
Before Chief Justice Byrne, Justices Baker and Kelly
Affirmed
Filed: July 31, 2024