Conroy v. McCraw

1

John Alan Conroy, Appellant v. Steven C. McCraw, Director, Texas Department of Public Safety, Appellee

No. 03-22-00081-CV

Court of Appeals of Texas, Third District, Austin

August 22, 2023

FROM THE 98TH DISTRICT COURT OF TRAVIS COUNTY NO D-1-GN-20-005171, THE HONORABLE MAYA GUERRA GAMBLE, JUDGE PRESIDING

Before Chief Justice Byrne, Justices Triana and Smith

MEMORANDUM OPINION

Darlene Byrne, Chief Justice

Appellant John Alan Conroy challenges the trial court's finding that he is a vexatious litigant and its issuance of a prefiling order prohibiting Conroy from filing "in forma pauperis" any new litigation without first obtaining permission from a local administrative judge. See Tex. Civ. Prac. & Rem. Code § 11.101. For the following reasons, we modify the prefiling order to substitute "pro se" for "in forma pauperis," and we affirm the order as modified.

BACKGROUND

On July 3, 2010, John Alan Conroy was arrested by state law enforcement officers, and his person and trailer were searched, leading to the seizure of a laptop and other electronic devices and media. Conroy was subsequently arrested several weeks later pursuant to a federal arrest warrant "based on evidence discovered by the state officials in the search of [his] house and travel trailer." Conroy v. Henry, No. 16-CV-750-JPG 2017 WL 1346636, at *1 (S.D. Ill. Apr. 12, 2017).

He pleaded guilty to production of child pornography and receiving a visual depiction of a minor engaging in sexually explicit conduct, see id. (citing 18 U.S.C §§ 2251(a), 2252(a)(2)), and he was sentenced to 405 months' imprisonment.

Conroy filed the present lawsuit on September 15, 2020, alleging that the Texas Department of Public Safety has never returned various pieces of personal property (e.g., family photographs, work materials, book research materials, and financial records) seized during the 2010 search and asserting a conversion cause of action against appellee Steven McCraw in his official capacity as director of the Department (the "State"). On May 14, 2021, the State moved to have the trial court declare Conroy a vexatious litigant and to issue a prefiling order. After a hearing, the trial court entered an order on January 10, 2022, finding Conroy a vexatious litigant; ordering Conroy to furnish $100.00 in security by April 1, 2022, to proceed in the present case; and issuing a prefiling order prohibiting Conroy from "filing, in forma pauperis, any new litigation in a court of this State without first obtaining permission from a local administrative judge." See Tex. Civ. Prac. & Rem. Code §§ 11.054, 11.101(a). This timely appeal followed.^[1]See id. § 11.101(c) (authorizing appeal from prefiling order designating person vexatious litigant).

STANDARD OF REVIEW

The vexatious litigant statute allows a court to enter an order "prohibiting a person from filing, pro se, a new litigation in a court to which the order applies" without first receiving permission from the local administrative judge. See Tex. Civ. Prac. & Rem. Code § 11.101(a). The statute and its corresponding designation on a party are aimed at restricting "frivolous and vexatious litigation" and protecting defendants "from those who abuse our civil justice system." Serafine v. Crump, 665 S.W.3d 93, 105 (Tex. App.-Austin 2023, pet. filed) (quoting Leonard v. Abbott, 171 S.W.3d 451, 455, 457 (Tex. App.-Austin 2005, pet. denied)).

For a plaintiff to be designated as a vexatious litigant, a trial court must find (1) "that there is not a reasonable probability that the plaintiff will prevail in the litigation against the defendant" and, among several options, (2) that the plaintiff, within the seven-year period immediately preceding the date of defendant's vexatious litigant motion, has "commenced, prosecuted, or maintained at least five litigations as a pro se litigant other than in a small claims court" that have either been finally determined adversely to plaintiff, remained pending for at least two years without being brought to trial or hearing, or determined to be frivolous or groundless. Tex. Civ. Prac. & Rem. Code § 11.054(1). The defendant bears the burden of showing those elements. Id.

We review the trial court's determination that a plaintiff is a vexatious litigant under the abuse of discretion standard. Serafine, 665 S.W.3d at 105. A trial court abuses its discretion when it rules "arbitrarily, unreasonably, without regard to guiding legal principles, or without supporting evidence." Id.

DISCUSSION

Liberally construing Conroy's briefing, he raises six issues on appeal relating to the determination that he is a vexatious litigant.^[2] Conroy first raises three procedural and evidentiary issues, arguing that he did not receive "fair notice" of the vexatious litigant statute, that certain witnesses did not testify at the vexatious litigant hearing, and that the trial court did not issue findings of fact and conclusions of law supporting its prefiling order. Conroy then, through two additional issues, challenges each of the statutory predicate findings necessary for the vexatious litigant determination. Finally, Conroy challenges the language of the prefiling order. We address each in turn.

Procedural and evidentiary issues

In his first issue, Conroy contends that he is entitled to "fair notice" of the vexatious litigant statute before he could be "punished" by being designated as a vexatious litigant. Contrary to Conroy's suggestion, the record demonstrates that he received notice and participated in a hearing before being designated as a vexatious litigant, as required under the statute. See Tex. Civ. Prac. & Rem. Code § 11.101(a) (authorizing trial court to enter vexatious litigant order only "after notice and hearing").^[3] Further, the federal court decisions referenced by Conroy in his briefing are not applicable here because those decisions specifically address due process requirements before an inmate may be punished for violating prison policies. See, e.g., Reeves v. Pettcox, 19 F.3d 1060, 1061 (5th Cir. 1994) (providing that "it is a violation of due process to punish inmates for acts which they could not have known were prohibited" under prison disciplinary rules); Adams v. Gunnell, 729 F.2d 362, 369 (5th Cir. 1984) (same); Williams v. Nix, 1 F.3d 712, 716 (8th Cir. 1993) (same). We overrule Conroy's first issue.

Conroy next argues that the State improperly blocked certain subpoenaed witnesses from testifying at the vexatious litigant hearing and failed to disclose an expert witness in its discovery responses. Courts of appeals have narrow interlocutory jurisdiction to consider only specific statutorily-listed rulings, which includes a vexatious litigant order. See, e.g., Tex. Civ. Prac. & Rem. Code § 51.014 (Appeal from Interlocutory Order); see also id. § 11.101(c) (authorizing appeals from interlocutory vexatious litigant prefiling order). Conroy has failed to direct us to any interlocutory ruling on those evidentiary disputes, and even if the trial court had made such rulings, our jurisdiction to review vexatious litigant findings does not include evidentiary rulings not contained within the vexatious litigant order. See, e.g., Serafine, 665 S.W.3d at 105 (explaining jurisdiction to consider interlocutory orders of vexatious litigant finding is "distinct from" rulings regarding "denials of testimony"). We overrule Conroy's second issue.

Conroy then argues that the trial court failed to expressly state the basis for the vexatious litigant finding, which we construe as challenging the trial court's failure to include findings of fact or conclusions of law as part of its prefiling order. "For interlocutory orders, '[t]he trial court need not file findings of fact and conclusions of law but may do so' within a certain time." Id. at 103 (quoting Tex.R.App.P. 28.1(c)). Because trial courts have discretion to enter findings of fact and conclusion of law for interlocutory appeals, a trial court does not abuse its discretion when it decides not to enter either in support of a vexatious litigant order. See id. We overrule Conroy's third issue. Vexatious litigant determination

In his fourth and fifth issues, Conroy challenges the trial court' declaration that he is a vexatious litigant, arguing that the State has failed to show either that there was no "reasonable probability" that he would prevail in the present dispute or that he had brought five qualifying litigations in the past seven years. See Tex. Civ. Prac. & Rem. Code § 11.054(1).

For the "reasonable probability" element, we review the trial court's ruling for an abuse of discretion, Serafine, 665 S.W.3d at 107, and a trial court may decide the issue based on "any evidence material to the ground of the motion," including exhibits and testimony, see Tex. Civ. Prac. & Rem. Code § 11.053(b). The State contends that Conroy's claim has no reasonable probability of success because it is barred by the applicable statute of limitations and sovereign immunity.^[4] Conroy, in contrast, argues that the statute of limitations was tolled and immunity does not apply to the relief he seeks in his suit.

In his pleading, Conroy asserts a claim for conversion of his personal property taken as part of the 2010 search. "To establish a claim for conversion of personal property, a plaintiff must allege and prove that: (1) the plaintiff owned or had legal possession of the property or entitlement to possession; (2) the defendant unlawfully and without authorization assumed and exercised dominion and control over the property to the exclusion of, or inconsistent with, the plaintiff's rights as an owner; (3) the plaintiff demanded return of the property; and (4) the defendant refused to return the property." 1st & Trinity Super Majority, LLC v....