COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-16-00044-CV
RAYFORD F. PERRY APPELLANT
V.
STEVEN SWIFT, BRAD APPELLEES
LIVINGSTON, JESSI KEITH, AND
GOLDIE JACQUES
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FROM THE 89TH DISTRICT COURT OF WICHITA COUNTY
TRIAL COURT NO. 181,533-C
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MEMORANDUM OPINION1
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Appellant Rayford F. Perry—an inmate who is confined in the Texas
Department of Criminal Justice, Institutional Division—appeals pro se from the
dismissal of his lawsuit for failure to post a $5,000 security deposit ordered by the
trial court after Perry was declared a vexatious litigant. The sole issue we decide
1
See Tex. R. App. P. 47.4.
is whether the trial court’s failure to conduct a hearing before declaring Perry a
vexatious litigant probably caused the rendition of an improper judgment or
probably prevented Perry from properly presenting his case to this court.
Because we hold that the trial court’s failure to hold a hearing was harmless, we
will affirm.
Perry filed a pro se suit against Appellees Steven Swift, Brad Livingston,
Jessi Keith, and Goldie Jacques, all of whom were employees of the Department.
The Attorney General filed an amicus curiae advisory requesting an order
declaring Perry a vexatious litigant and requiring him to furnish security. See
Tex. Civ. Prac. & Rem. Code Ann. § 11.051 (West 2002). The Attorney General
alleged that no reasonable probability existed that Perry would prevail in his
litigation against Appellees and that in the preceding seven-year period, Perry
had commenced, prosecuted, or maintained in courts other than small claims
court at least five litigations as a pro se litigant that had been determined by a
trial or appellate court to be frivolous or groundless under state or federal laws or
rules of procedure. See id. § 11.054 (West Supp. 2015). The Attorney General
attached to its request court documents showing at least five lawsuits that Perry
had maintained in the past seven years that had been determined to be frivolous.
The trial court, after considering the Attorney General’s request, found that
Perry was a vexatious litigant pursuant to section 11.054 of the Texas Civil
Practice and Remedies Code and ordered him to furnish security in the amount
of $5,000 by October 8, 2015, to proceed in the case. On November 5, 2015, the
2
trial court signed a final judgment, which stated, “Because Plaintiff has been
determined to be a vexatious litigant and has failed to furnish the required
security by the date previously ordered, his case is hereby DISMISSED as to all
claims and Defendants.” Perry timely perfected this appeal.2
In his third issue,3 Perry argues that the trial court abused its discretion by
failing to hold a hearing under Texas Civil Practice and Remedies Code section
11.053 to determine whether Perry was a vexatious litigant. The vexatious
litigant statute provides, “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.” Tex. Civ. Prac. & Rem. Code Ann. § 11.053(a) (West 2002). This
2
Appellees assert that Perry failed to timely perfect this appeal because his
“Motion to Alter Or Amend The Judgment,” which was filed eighteen days after
the judgment was signed, did not extend the appellate timetable. Because
Perry’s motion seeks a new trial, however, it acted to trigger the extended ninety-
day deadline for filing his notice of appeal, and thus, his notice of appeal was
timely filed. See Tex. R. App. P. 26.1(a)(1); Tex. Dep’t of Criminal Justice v.
Simons, 140 S.W.3d 338, 349 (Tex. 2004) (directing courts to look to the
substance of the motion rather than the title). We therefore have jurisdiction over
this appeal.
3
Perry’s brief recites three issues under the heading “Issues Presented.”
Issue one complains that his motion for leave to submit an application to proceed
in forma pauperis was overruled by operation of law. Issue two complains that
his motion to alter or amend the judgment was overruled by operation of law.
The only issue, however, on which Perry presents argument is his third issue
complaining that the trial court failed to hold a hearing before declaring him a
vexatious litigant. We therefore overrule Perry’s first and second issues as
inadequately briefed. See Tex. R. App. P. 38.1(i); ERI Consulting Eng’rs, Inc. v.
Swinnea, 318 S.W.3d 867, 880 (Tex. 2010) (recognizing that “[t]he Texas Rules
of Appellate Procedure require adequate briefing.”); Fredonia State Bank v. Gen.
Am. Life Ins. Co., 881 S.W.2d 279, 284–85 (Tex. 1994) (observing that appellate
court has discretion to deem issues waived due to inadequate briefing).
3
requirement is not discretionary. See id.; Mullins v. Ortiz, 440 S.W.3d 48, 51
(Tex. App.—Waco 2009, no pet.). But the failure to hold a hearing pursuant to
section 11.053 is subject to a harm analysis. See Mullins, 440 S.W.3d at 51.
Error requires reversal if it probably caused the rendition of an improper
judgment or probably prevented the appellant from properly presenting his case
to this court. See Tex. R. App. P. 44.1(a); Mullins, 440 S.W.3d at 51.
The trial court here did not conduct a hearing prior to declaring Perry to be
a vexatious litigant; accordingly, the trial court erred. We therefore conduct a
harm analysis of the trial court’s error in failing to conduct a hearing. See Tex. R.
App. P. 44.1(a); Mullins, 440 S.W.3d at 51.
Perry filed numerous responses to the Attorney General’s request. 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, and in his brief, Perry does not point to any evidence or testimony that he
was denied the opportunity to present to the trial court. Thus, we cannot say that
the failure to hold a hearing caused the rendition of an improper judgment. See,
e.g., In re Douglas, 333 S.W.3d 273, 287 (Tex. App.—Houston [1st Dist.] 2010,
pet. denied) (holding error in failing to hold a hearing before declaring litigant
vexatious harmless because litigant failed to explain in trial or appellate court
what evidence he would have presented at hearing). Likewise, the trial court’s
failure to hold a hearing before declaring Perry a vexatious litigant did not prevent
4
Perry from presenting his case on appeal,4 and Perry sets forth no explanation of
any complaints he was purportedly prevented from presenting. Accordingly, the
trial court’s error in failing to hold a hearing before declaring Perry a vexatious
litigant was harmless. See Tex. R. App. P. 44.1(a); Douglas, 333 S.W.3d at 287
(holding error in failure to hold hearing before declaring litigant vexatious
harmless); Mullins, 440 S.W.3d at 51 (same); see also Jon v. Gaston, No. 10-09-
00357-CV, 2010 WL 3584391, at *2 (Tex. App.—Waco Sept. 15, 2010, pet.
denied) (mem. op.) (same). Accordingly, we overrule Perry’s third issue.
Having held that the trial court’s failure to hold a section 11.053 hearing
was harmless, we affirm the trial court’s judgment.5
/s/ Sue Walker
SUE WALKER
JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and WALKER, JJ.
DELIVERED: June 9, 2016
4
Perry’s first and second issues were presented, just not adequately
briefed, and his third issue simply complains of no hearing.
5
On April 4, 2016, this court received the following documents from Perry:
“Order To Show Cause For A Preliminary Injunction,” “Memorandum of Law,”
and “Affidavit And Citizen’s Petition.” All relief requested in these documents is
denied.
5