in Re R Wayne Johnson, Relator

NO. 07-07-0431-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

JULY 27, 2009

______________________________

IN RE R. WAYNE JOHNSON, RELATOR

_______________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

MEMORANDUM OPINION

          Relator R. Wayne Johnson, acting pro se, filed a petition seeking relief by writ of mandamus. We will deny his petition.

          According to his petition, relator seeks a writ of mandamus against the Honorable John B. Board, judge of the 181^st District Court of Potter County. The petition asserts that Judge Board, in his capacity as local administrative judge, abused his discretion by refusing to sign an order relator submitted that would have allowed him to file a civil suit.

          Relator’s petition includes a copy of an order entered in June 2001 in the District Court of Bee County, granting a motion to declare relator a vexatious litigant. The order further prohibits relator from filing suit in Texas courts without permission of a local administrative judge. See Tex. Civ. Prac. & Rem. Code Ann. §§ 11.051 (providing for motions for determination that plaintiff is vexatious litigant), 11.101 (providing for pre-filing orders) (Vernon 2002). See also In re Johnson, No. 07-06-0359-CV, 2006 WL 2919071 (Tex.App.–Amarillo October 12, 2006) (orig. proceeding) (recognizing relator’s status as vexatious litigant).

          Courts will issue mandamus to correct a clear abuse of discretion or the violation of a duty imposed by law when there is no other adequate remedy available by appeal. In re Prudential Ins. Co. of America, 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding); Canadian Helicopters Ltd. v. Wittig, 876 S.W.2d 304, 305 (Tex. 1994) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). It is the relator's burden to show entitlement to the relief being requested. See generally Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985) (orig. proceeding).

          To our knowledge, no court has found that a local administrative judge’s denial of permission to a vexatious litigant to file suit is reviewable by mandamus. See Tex. Civ. Prac. & Rem. Code Ann. § 11.102 (Vernon 2002) (providing for such permission). It is not necessary for us to determine that question here, and we do not address it. Even assuming mandamus to be available in a proper case, relator’s petition does not demonstrate his entitlement to mandamus relief.

 

          By his petition, relator contends that Chapter 11 of the Civil Practice and Remedies Code does not apply to him because the 2001 order of the Bee County District Court declaring him a vexatious litigant is void. He points out the Attorney General of Texas was a defendant in the Bee County case in which the order was entered, and asserts that the Attorney General submitted the motion asking that he be declared a vexatious litigant. He further cites section 402.021 of the Government Code, and points to its language that the Attorney General shall prosecute and defend all actions in which the State is interested before the Supreme Court and Courts of Appeals. Tex. Gov’t Code Ann. § 402.021 (Vernon 2005). From this statute, relator reasons that the Attorney General had no authority to appear in the Bee County District Court, and so had no authority to submit the motion under section 11.051, rendering the District Court’s order void.

          Relator’s reasoning is faulty, for several reasons. We will mention three. First, section 11.101 does not require that a party to litigation file a motion for the entry of a pre-filing order against a person determined to be a vexatious litigant. That section provides a court may enter a pre-filing order on its own motion. Tex. Civ. Prac. & Rem. Code Ann. § 11.101 (Vernon 2002). Second, the Bee County District Court’s pre-filing order reflects the style of that litigation as “R. Wayne Johnson A.K.A. “Legal Eagle,” plaintiff v. John Cornyn, Attorney General and Andy Taylor, defendants.” Nothing in relator’s mandamus petition demonstrates what claims he asserted against then-Attorney General Cornyn in Bee County, or in which capacity the defendants were sued, so it is not clear that any particular statutory authority was necessary for them to defend the action against them. Third, section 402.021 is not the only basis for the Attorney General’s representation of the State in litigation. See Tex. Const. art. IV, § 22. See also El Paso Elec. Co. v. Texas Dept. Of Ins., 937 S.W.2d 432, 438-439 (Tex. 1996) (the legislature, pursuant to the authority delegated to it under article IV, section 22, may empower the Attorney General to represent the State in district court). For these reasons, and others not necessary to discuss, relator’s petition would not authorize issuance of a writ of mandamus, assuming mandamus to be available.

          Accordingly, relator’s petition is denied.

 

                                                                           James T. Campbell

                                                                                     Justice

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NO. 07-10-00216-CV

 

IN THE COURT OF APPEALS

 

FOR THE SEVENTH DISTRICT OF TEXAS

 

AT AMARILLO

 

PANEL B

 

JUNE 11, 2010

 

 

IN RE RICARDO GUTIERREZ

 

 

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

 

 

MEMORANDUM OPINION

 

Ricardo Gutierrez has filed a “Petition for Bill of Review” with this Court requesting that we rescind the conditional grant of Gutierrez’s petition for writ of mandamus issued in In re Gutierrez, No. 07-00-0482-CV, 2000 Tex.App. LEXIS 8429 (Tex.App.—Amarillo December 9, 2000, no pet.).  We dismiss for want of jurisdiction.

            In his current petition, Gutierrez contends that this Court’s conditional grant of mandamus in In re Gutierrez was improper because the opinion relied upon a case that has subsequently been declared invalid.[1]  Thus, according to Gutierrez, this Court was without jurisdiction to conditionally grant the petition for writ of mandamus that he filed on the basis of the Heath case upon which Gutierrez relied.[2]  Gutierrez contends that this Court has jurisdiction over his petition for bill of review because a bill of review is a direct attack on a judgment and, therefore, a bill of review must be filed in the court that rendered the judgment being challenged. 

            The jurisdiction of all Texas courts is conferred solely by the Texas Constitution and state statutes.  Chenault v. Phillips, 914 S.W.2d 140, 141 (Tex. 1996).  A Texas court does not have jurisdiction to decide any case absent an express constitutional or statutory grant.  Id.  Courts of appeals have appellate jurisdiction as specified in section 6 of the Texas Constitution, together with such other original and appellate jurisdiction as may be prescribed by law.  Tex. Const. art. V, § 6.  Gutierrez has not cited this Court to any express constitutional or statutory grant of jurisdictional authority over a petition for bill of review.  Nor have we found any such grant of authority.  See Tex. Gov’t Code Ann. §§ 22.220 (Vernon Supp. 2009), 22.221 (Vernon 2004).  Thus, having no authority to consider Gutierrez’s petition for bill of review, we dismiss this petition for want of jurisdiction.

            To the extent that Gutierrez is requesting mandamus relief by his petition for bill of review, we would reiterate what we stated in In re Gutierrez, No. 07-10-0048-CV, 2010 Tex.App. LEXIS 1305, at *3 (Tex.App.—Amarillo February 24, 2010, no pet. h.),

However, it appears more likely that Gutierrez is requesting mandamus relief.  But, he is requesting this Court issue a writ of mandamus against itself.  This court's authority to grant writs of mandamus is limited.  A court of appeals is authorized to issue a writ of mandamus: (1) in any case when necessary to enforce its jurisdiction; and (2) in cases in which relief is sought against a judge of a district or county court in the court of appeals district; or a judge of a district court who is acting as a magistrate at a court of inquiry in the court of appeals district.  In re Hettler, 110 S.W.3d 152, 154 (Tex.App.--Amarillo 2003, orig. proceeding).  We have no authority to issue a writ of mandamus against an official not prescribed by statute. See Casner v. Rosas, 943 S.W.2d 937, 938 (Tex.App.--El Paso 1997, no writ).  The statute does not authorize a court of appeals to issue a writ of mandamus against itself.

 

            For the foregoing reasons, we conclude that we are without jurisdiction to grant Guterriez the relief sought by his “Petition for Bill of Review” and, accordingly, dismiss the same for want of jurisdiction.

 

 

                                                                                                Mackey K. Hancock

                                                                                                            Justice

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[1] The case that Gutierrez takes issue with, Heath v. State, 817 S.W.2d 335 (Tex.Crim.App. 1991), has been overruled by subsequent decisions.  However, we note that Heath was overruled by Ex parte Williams, 65 S.W.3d 656, 658 (Tex.Crim.App. 2001), which was decided nearly four months after this Court conditionally granted Gutierrez’s petition for writ of mandamus.  As an intermediate appellate court, we are bound to follow the precedents of the Texas Supreme Court and Texas Court of Criminal Appeals “unless and until” those courts overrule them or the legislature supersedes them by statute.  Petco Animal Supplies, Inc. v. Schuster, 144 S.W.3d 554, 565 (Tex.App.—Austin 2004, no pet.).  Thus, this Court’s opinion in In re Gutierrez properly relied upon the binding precedent of the Texas Court of Criminal Appeals at the time that it was decided and was not rendered invalid by the subsequent overruling of Heath.

 

[2] Because Gutierrez requested the issuance of a writ of mandamus that was conditionally granted in In re Gutierrez, we note that his complaint on the merits is barred by the doctrine of invited error.  The invited error doctrine applies to situations where a party requests the court to make a specific ruling, then complains of that ruling on appeal, or, as in the present situation, by collateral attack on the requested ruling.  See In re Dep't of Family & Protective Servs., 273 S.W.3d 637, 646 (Tex. 2009); Tittizer v. Union Gas Corp., 171 S.W.3d 857, 862 (Tex. 2005).