Patrick Lee Mullins v. Hector Ortiz, Darrel Sutton, Robert Jenkins, Steven Rich, John Porter, and T. Roddey

440 S.W.3d 48, 2009 WL 2264347, 2009 Tex. App. LEXIS 5846
CourtCourt of Appeals of Texas
DecidedJuly 29, 2009
Docket10-08-00225-CV
StatusPublished
Cited by5 cases

This text of 440 S.W.3d 48 (Patrick Lee Mullins v. Hector Ortiz, Darrel Sutton, Robert Jenkins, Steven Rich, John Porter, and T. Roddey) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Patrick Lee Mullins v. Hector Ortiz, Darrel Sutton, Robert Jenkins, Steven Rich, John Porter, and T. Roddey, 440 S.W.3d 48, 2009 WL 2264347, 2009 Tex. App. LEXIS 5846 (Tex. Ct. App. 2009).

Opinions

OPINION

FELIPE REYNA, Justice.

Patrick Lee Mullins, a Texas inmate, filed an in forma pauperis lawsuit against several employees of the Texas Department of Criminal Justice (“TDCJ”). The trial court granted the TDCJ’s motion to declare Mullins a vexatious litigant. On appeal, Mullins contends that: (1) the trial court improperly dismissed his lawsuit; (2) he may assert a claim under the Administrative Procedures Act; and (3) the trial court failed to send him a copy of the order finding him to be a vexatious litigant. We affirm.

[51]*51VEXATIOUS LITIGANT

In his first issue, Mullins contends that his lawsuit was improperly dismissed on a vexatious litigant finding because the trial court did not hold a hearing on the TDCJ’s motion and because he established his ability to prevail on his claims.1

Failure to Hold a Hearing

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. See Tex. Civ. PRAC. & Rem.Code Ann. § 11.053(a) (Vernon 2002) (emphasis added). This requirement is not discretionary. See id.; see also Wilemon v. Wilemon, 930 S.W.2d 290, 295 (Tex.App.-Waco 1996, no pet.) (The term “shall” is mandatory language).

Although the record does not demonstrate that the trial court held a hearing pursuant to section 11.053, such a failure is subject to a harm analysis. See Dueitt v. Arrowhead Lakes Prop. Owners, Inc., 180 S.W.3d 733, 740-41 (Tex.App.-Waco 2005, pet. denied). Error requires reversal if it probably caused the rendition of an improper judgment or probably prevented Mullins from properly presenting his case to the court of appeals. Tex.R.App. P. 44.1(a); Dueitt, 180 S.W.3d at 741.

Mullins filed a lengthy response to the TDCJ’s motion. The record does not indicate that he had any live testimony or other evidence that was not available to the trial court from the written pleadings at the time of its ruling. Thus, we cannot say that the failure to hold a hearing caused the rendition of an improper judgment. Nor could the failure to hold a hearing prevent Mullins from presenting his case on appeal, as he presents the same arguments on appeal. The trial court’s failure to hold a hearing on the TDCJ’s motion to declare Mullins a vexatious litigant was harmless. See Tex. R.App. P. 44.1(a); see also Dueitt, 180 S.W.3d at 741.

Vexatious Litigant Finding

A plaintiff may be found to be vexatious if (1) there is no reasonable probability that he will prevail; and (2) in the preceding seven-year period, he has commenced, prosecuted, or maintained in pro-pria persona at least five litigations other than in a small claims court that have been (a) finally determined adversely to him; (b) pending at least two years without having been brought to trial or hearing; or (c) found to be frivolous or groundless. Tex. Civ. PRAC. & Rem.Code Ann. § 11.054(1)(A)-(C) (Vernon 2002). A trial court’s vexatious litigant finding is reviewed for abuse of discretion. See Pandozy v. Beaty, 254 S.W.3d 613, 619 (Tex.App.-Texarkana 2008, no pet.).

Retaliation Claim

Mullins alleges that Sergeant Darrel Sutton denied him access to a disciplinary hearing for destruction of state property and Captain Hector Ortiz found him guilty of such conduct in retaliation for being named in one of Mullins’s prior lawsuits.2

[52]*52An inmate claiming retaliation must allege facts or a chronology of events showing that the defendant acted in retaliation against him for exercising a specific constitutional right. See Johns v. Johnson, No. 10-03-00388-CV, 2005 WL 428465, at *2-3, 2005 Tex.App. LEXIS 1500, at *7 (Tex.App.-Waco Feb. 23, 2005, no pet.) (mem. op.). The claimant’s personal belief that he is a victim of retaliation is insufficient. See Brewer v. Simental, 268 S.W.3d 763, 771 (Tex.App.-Waco 2008, no pet.).

Mullins has not alleged facts or a chronology of events showing that Sutton acted in retaliation against him for exercising a specific constitutional right. The record indicates that Sutton approached Mullins with the intent to escort him to the hearing. He instructed Mullins to shave. See Tex. Dep’t of CRIMINAL Justice, Offender Orientation Handbook 10 (Nov. 2004) (“Male offenders must be clean-shaven.”); see also Tex. Dep’t of Criminal Justice, Disciplinary Rules And Procedures For Offenders 28 (Jan. 2005) (refusal to comply with grooming standards violates TDCJ offender rules). Mullins argues that no TDCJ policy requires inmates to be clean-shaven before attending a disciplinary hearing. However, “[o]ffenders charged with rule violations shall be present at their disciplinary hearings unless their behavior immediately before or during the hearing justifies their exclusion ...” Disciplinary Rules And Procedures For Offenders 12 (emphasis added). Destroying state property is a rule violation. See id. at 27; see also Offender Orientation Handbook 22. Only after Mullins refused to shave did Sutton refuse to escort him to the hearing.3

Moreover, the disciplinary report alleged that Mullins removed his shower bench from the wall and used the bench to strike the cell door. Although Mullins denies damaging any property, he admits removing the shower bench, which was loose, and using the bench to strike his cell door. The bench had to be welded back to the wall. Mullins’s inmate trust account was subject to seizure for damage to state property. See Offender Orientation Handbook 50. Mullins has not alleged facts or a chronology of events showing that Ortiz found him guilty in retaliation against him for exercising a specific constitutional right. See Johns, 2005 WL 428465 at *2-3, 2005 Tex.App. LEXIS 1500, at *7.

Other than Mullins’s personal belief that he was retaliated against, the record does not indicate that either Sutton or Ortiz acted with retaliatory intent. Mullins’s affidavit of previous filings does not even indicate that Sutton and Ortiz were parties to any of his suits. But for Mullins’s own conduct, he would have attended the hearing and the complained of incident would not have occurred.

[53]*53Administrative Procedures Act Claim

In Mullins’s first' and second issues, he maintains that he is entitled to relief under the Administrative Procedures Act. See Tex. Gov’t Code Ann. § 2001.171 (Vernon 2008) (“A person who has exhausted' all administrative remedies available within a state agency and who is aggrieved by a final decision in a contested case is entitled to judicial review under this chapter.”). However, the Act “does not apply to a rule or internal procedure of the Texas Department of Criminal Justice or Texas Board of Criminal Justice that applies to an inmate or any other person under the custody or control of the department or to an action taken under that rule or procedure.” Tex. Gov’t Code Ann. § 2001.226 (Vernon 2008); Harrison v. Tex. Dep’t of Crim. Justice,

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440 S.W.3d 48, 2009 WL 2264347, 2009 Tex. App. LEXIS 5846, Counsel Stack Legal Research, https://law.counselstack.com/opinion/patrick-lee-mullins-v-hector-ortiz-darrel-sutton-robert-jenkins-steven-texapp-2009.