Court of Appeals of Texas, Fourth District, San Antonio
the 73rd Judicial District Court, Bexar County, Texas Trial
Court No. 2014-CI-17145 Honorable Antonia Arteaga, Judge
Sitting: Karen Angelini, Justice Patricia O. Alvarez, Justice
Irene Rios, Justice
an attempted appeal of an interlocutory order brought under
section 51.014(12) of the Texas Civil Practice and Remedies
Code. See Tex. Civ. Prac. & Rem. Code Ann.
§ 51.014(12) (West Supp. 2016) (authorizing an appeal
from an interlocutory order denying a motion to dismiss under
Chapter 27 of the Texas Civil Practice & Remedies Code,
the Texas Citizens Participation Act).
trial court, Tom Retzlaff, a nonparty to the underlying
proceedings, filed several pleadings seeking protection from
discovery. In response, the defendants in the case filed a
motion to strike Retzlaff's pleadings on the basis that
Retzlaff had been declared a vexatious litigant and had not
obtained the required permission to file pleadings in the
trial court. The defendants also filed a motion for contempt.
Thereafter, Retzlaff moved to dismiss the defendants'
motion for contempt based on the Texas Citizens Participation
Act (TCPA). The trial court concluded that Retzlaff had not
obtained permission to file pleadings as required and granted
the defendants' motion to strike all of Retzlaff's
pleadings in the trial court. In response, Retzlaff filed a
notice of appeal challenging the trial court's effective
denial of his motion to dismiss under the TCPA and commenced
this appeal. See id.
11 of the Texas Civil Practice and Remedies Code governs
vexatious litigants in Texas. Under this statute, "[a]
clerk of a court may not file a litigation, original
proceeding, appeal, or other claim presented, pro
se, by a vexatious litigant subject to a prefiling order
under Section 11.101 unless the litigant obtains an order
from the appropriate administrative judge described in
Section 11.102(a) permitting the filing." Tex. Civ.
Prac. & Rem. Code Ann. § 11.103(a) (West 2017)
(emphasis added). The statute plainly applies to appeals
filed in Texas appellate courts. The only exceptions provided
by the statute are that a clerk of a court of appeals may
file an appeal from a prefiling order entered under Section
11.101 designating a person a vexatious litigant or a timely
filed writ of mandamus under Section 11.102. See id.
§ 11.103(d). Chapter 11 further describes the procedures
courts must follow when litigation is mistakenly filed by a
vexatious litigant. See id. § 11.1035(b). This
procedure consists of dismissing the litigation unless the
vexatious litigant demonstrates to the court that he has
obtained an order from the appropriate administrative judge
permitting the filing. See id.
is no doubt that Retzlaff has been designated a vexatious
litigant subject to a prefiling order under Section 11.101 of
the Texas Civil Practice and Remedies Code. Retlaff's
name appears on the current list of vexatious litigants
maintained by the Texas Office of Court Administration. On
October 15, 2008, Retzlaff was declared a vexatious litigant
in cause number 338432, styled Tom Retzlaff v. GoAmerica
Communications Corporation, Aaron David Dubrinski, John
and/or Jane Doe, and filed in the County Court at Law
#3, in Bexar County, Texas. The order in that case prohibited
Retzlaff "from filing, in propia persona, any new
litigation in any state or federal court located in the
State of Texas without first obtaining permission of the
local administrative judge…." (emphasis added).
Retzlaff appealed the order, and the order was affirmed on
appeal. Retzlaff v. GoAmeria Commc'n Corp., 356
S.W.3d 689, 698-701, 705 (Tex. App.-El Paso 2011, no pet.)
("Nothing stated herein should be construed to cast
doubt on the trial court's conclusion that Retzlaff is a
vexatious litigant or on the court's prohibition against
Retzlaff's filing any new litigation in this
state."). Furthermore, the exception enumerated in
section 11.103(d) of the Texas vexatious litigant statute
does not apply in this appeal, where Retzlaff is not
appealing an order designating him a vexatious litigant, but
rather an order effectively denying his motion to dismiss
under the TCPA.
acknowledge that, on October 19, 2016, the appellees filed a
motion to dismiss this appeal, calling attention to
Retzlaff's vexatious litigant status. On October 21,
2016, Retzlaff filed a response to the motion to dismiss. On
October 21, 2016, we summarily denied the appellees'
motion to dismiss this appeal. However, after further review
and consideration, we are of the opinion that this appeal
must be dismissed unless Retzlaff shows that he has obtained
an order from the appropriate administrative judge granting
him permission to bring this appeal. See Tex. Civ.
Prac. & Rem. Code Ann. §§ 11.103(a),
this appeal will be dismissed unless Retzlaff files
in this Court, no later than ten (10) days from the date
of this order, an order from the local ...