Allen Glenn Thomas v. Texas Department of Criminal Justice Officer Marcus A. Adams

Opinion filed October 9, 2014

In The

Eleventh Court of Appeals
__________

No. 11-12-00312-CV
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ALLEN GLENN THOMAS, Appellant
V.
TEXAS DEPARTMENT OF CRIMINAL JUSTICE
OFFICER MARCUS A. ADAMS ET AL., Appellees

On Appeal from the 259th District Court
Jones County, Texas
Trial Court Cause No. 022853

MEMORANDUM OPINION
Appellant, Allen Glenn Thomas, is currently incarcerated at the French M.
Robertson Unit of the Institutional Division of the Texas Department of Criminal
Justice, which is located in Jones County. Appearing pro se, he challenges the trial
court’s order dismissing his suit. We affirm.
On August 31, 2012, Appellant filed the underlying action against seventeen
defendants, all of whom were officers or officials employed by the Texas
Department of Criminal Justice (TDCJ) at the French M. Robertson Unit.
Appellant alleged claims of inverse condemnation and conversion under Texas law
and alleged that, while he was an inmate, his property was lost or damaged as those
claims are provided for under federal law. He also alleged that he was physically
injured during a “shakedown” because he was forced to carry all of his belongings
to another location even though he was under a medical “no lifting restriction.”
On behalf of the seventeen defendants, the attorney general filed a notice on
September 12, 2012, to inform the trial court that the trial court had previously
found Appellant to be a vexatious litigant. See TEX. CIV. PRAC. & REM. CODE
ANN. § 11.054 (West Supp. 2014). The attorney general stated that the trial court
had ordered Appellant to obtain permission from the local administrative judge
before Appellant filed any additional pro se litigation in state court and that
Appellant had failed to do so prior to filing his petition in this case. See former
CIV. PRAC. & REM. § 11.101 (2011) (current version at CIV. PRAC. & REM. § 11.101
(West Supp. 2014)). As such, the attorney general requested that the court
immediately stay the litigation and requested that the court dismiss the suit unless,
within ten days of the notice, Appellant obtained an order from the local
administrative judge granting him permission to file suit. See former CIV. PRAC. &
REM. § 11.103(b) (1997) (current version at CIV. PRAC. & REM. § 11.1035 (West
Supp. 2014)).
On September 14, 2012, the trial court signed an order in which it found that
Appellant had not obtained permission to file suit from a local administrative judge
within ten days from the date the attorney general filed its notice that Appellant
was a vexatious litigant. The court ordered Appellant’s case to be dismissed with
prejudice. On that same day, the court also signed an order staying the
proceedings. On September 30, 2012, the court signed an order withdrawing the
orders that the court had signed on September 14, and the court signed another
order staying all proceedings. On October 11, 2012, the court again found that
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Appellant had not obtained permission from a local administrative judge, and it
dismissed Appellant’s case with prejudice.
On appeal, Appellant presents eight issues for our review. In his first issue,
he asserts that Chapter 11 of the Texas Civil Practice and Remedies Code is
unconstitutional as applied because it violates his right to access the courts, to due
process, to due course of law, and to equal protection under the Texas and United
States Constitutions. Appellant contends in his second issue that the court order in
which the trial court required Appellant to pay $7,500 in security was an arbitrary
condition that prevented him access to the courts. He argues in his third issue that
the trial court erred when it declared Appellant to be a vexatious litigant and
dismissed Appellant’s property claims. In his fourth, fifth, sixth, and seventh
issues, Appellant raises the questions of whether he stated claims of inverse
condemnation, malicious prosecution, a due process violation regarding his liberty
interest in his expectancy to an early release from prison based on the
accumulation of his good-time credits in prison disciplinary cases, and an Eighth
Amendment violation for deliberate indifference to his serious medical needs
restrictions. Appellant argues in his eighth and final issue that Appellees waived
their “immunity defense under vested property rights and administrative authority
in violation of [the] Texas Tort Claims Act” when prison officials kept him
classified as a “class line III” inmate so that he could not accrue good conduct
time.
We will first address Appellant’s challenge to the constitutionality of
Chapter 11 of the Texas Civil Practice and Remedies Code. Under Chapter 11, a
trial court may place limitations on the litigation activities of a person determined
by the court to be a “vexatious litigant.” See CIV. PRAC. & REM. § 11.054,
§ 11.055 (West 2002), § 11.101. Appellant argues that the statutes improperly
deny him equal protection, due process, a remedy by due course of law, and access
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to the courts. The Austin Court of Appeals has upheld the constitutionality of
Chapter 11 under the open courts provision, the equal protection clause, and the
right to due process. Leonard v. Abbott, 171 S.W.3d 451, 456–58 (Tex. App.—
Austin 2005, pet. denied). We agree with the Austin court’s analysis and holding.
However, Appellant does not cite to, and we cannot find, any page in the appellate
record in which Appellant raised his challenge to the constitutionality of
Chapter 11 in the trial court. Therefore, Appellant has not preserved this issue for
our review. See TEX. R. APP. P. 33.1; see, e.g., Drum v. Calhoun, 299 S.W.3d 360,
369–70 (Tex. App.—Dallas 2009, pet. denied) (holding defendant waived
challenge to constitutionality of vexatious litigant statutes). Appellant’s first issue
is overruled.
In his second issue, Appellant challenges the trial court’s entry of the
vexatious litigant order requiring him to furnish security in the amount of $7,500.
We can find no such order in this case in which the trial court ordered Appellant to
furnish security. Appellant’s second issue is without merit and is overruled.
Appellant argues in his third issue that the trial court abused its discretion
when it dismissed his property claims and declared him to be a vexatious litigant.
We note that the trial court did not declare Appellant to be a vexatious litigant in
this case. The court had previously declared Appellant to be a vexatious litigant
and had entered a prefiling order in which it prohibited Appellant from filing future
litigation without the permission of the local administrative judge. See former CIV.
PRAC. & REM. § 11.101(a). Appellant failed to comply with the trial court’s
prefiling order, and as a result, the trial court dismissed Appellant’s case. 1 Former
Section 11.103 required the trial court to stay Appellant’s litigation when it was
notified by Appellees that Appellant was subject to a prefiling order under
1
We note that the legislature has now prohibited appeals from such dismissals. See CIV. PRAC. &
REM. § 11.1035(c) (West Supp. 2014) (“An order dismissing litigation that was mistakenly filed by a
clerk may not be appealed.”).

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Section 11.101. Id. § 11.103(b). The statute further provided that the trial court
“shall dismiss the litigation unless the plaintiff, not later than the 10th day after the
date the notice is filed, obtains an order from the local administrative judge under
Section 11.102 permitting the filing of the litigation.” Id.
After reviewing the record, we have not found, nor does Appellant argue that
he secured, a letter from the local administrative judge granting Appellant
permission to file his suit against the prison officials. Appellant claims that he
filed a motion on September 20, 2012, in which he sought permission from the
local administrative judge. Appellant further claims that the clerk withheld the
filing of his motion until September 27, 2012, and that the local administrative
judge refused to rule on his motion. Appellant also contends that the local
administrative judge is the same judge that was presiding over his case and
ultimately dismissed his case. In addition, Appellant contends that he did not get
notice that the trial court withdrew its original orders staying the case and
dismissing the case. However, Appellant does not explain how this lack of notice
affected his ability to secure permission to file his case from the local
administrative judge.
Appellant’s contention that the local administrative judge in Jones County is
the same judge that was presiding over his case is correct. See TEX. GOV’T CODE
ANN. § 74.091 (West 2013) (“In a county with only one district judge, [such as
Jones County,] the district judge serves as the local administrative district judge.”).
And, while Appellant claimed that he already knew that he could not obtain
permission from the local administrative judge because the local judge was the
same judge who “conspired with TDCJ,” he did not seek recusal of the local
administrative judge, nor did he request review of his motion by a different
administrative judge. Based on the structure of his motion and the fact that
Appellant claimed he could not obtain the permission necessary to file his suit, it
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appears that Appellant was actually requesting mandamus relief from this court
regarding permission to file his suit instead of seeking permission from the
administrative judge. Thus, it does not appear from the record that Appellant
actually sought permission from the local administrative judge. We note that
Appellant did not pursue mandamus relief in this court regarding his contention
that the local administrative judge refused to rule on his motion. Furthermore,
Appellant did not complain below that the local administrative judge refused to
rule, nor did he subsequently request a ruling. We cannot conclude from our
review of the record that the local administrative judge refused to rule on
Appellant’s motion seeking permission to file suit, if in fact the motion sought
such permission from the local judge. Moreover, even if the local administrative
judge had denied Appellant’s request for permission, Appellant could not seek
review of the judge’s denial by direct appeal. See former CIV. PRAC. & REM.
§ 11.102(c) (2011) (current version at CIV. PRAC. & REM. § 11.102(f) (West Supp.
2014)) (“A decision of a local administrative judge denying a litigant permission to
file a litigation . . . is not grounds for appeal, except that the litigant may apply for
a writ of mandamus with the court of appeals.”).
We can, however, conclude from the record that Appellant did not obtain
permission from the local administrative judge to file his suit as required under the
vexatious litigant statutes. Therefore, because Appellant failed to obtain permission
as required, the trial court did not abuse its discretion when it dismissed
Appellant’s suit. Appellant also claims that the trial court erred when it dismissed
his claims with prejudice. However, Appellant did not raise this issue in the trial
court and, thus, has waived error for appellate review. See TEX. R. APP. P. 33.1;
Leonard, 171 S.W.3d at 461 (holding defendant waived argument that his suit
should not have been dismissed with prejudice when he failed to timely file a

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postjudgment motion to correct the judgment). We overrule Appellant’s third
issue.
Because we have held that the trial court did not err when it dismissed
Appellant’s case for Appellant’s failure to comply with the prefiling order, we
need not consider Appellant’s remaining issues as to whether he stated various
claims or whether the prison officials waived governmental immunity. See TEX. R.
APP. P. 47.1.
We affirm the judgment of the trial court.

JIM R. WRIGHT
CHIEF JUSTICE

October 9, 2014
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.

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