Court of Appeals of Texas, Ninth District, Beaumont
Submitted on August 25, 2017
Appeal from the County Court at Law Polk County, Texas Trial
Cause No. CV03358
McKeithen, C.J., Kreger and Horton, JJ.
MEMORANDUM OPINION 
CHARLES KREGER Justice
suit underlying this appeal, the trial court declared Norman
Crittendon to be a vexatious litigant and ordered him to
deposit security. See Tex. Civ. Prac. & Rem.
Code Ann. § 11.055(a) (West 2017). The trial court
dismissed the case after Crittendon failed to make the
deposit. The single issue Crittendon raises in this appeal
maintains that the proper procedure for invoking Chapter 11
of the Civil Practice and Remedies Code was not followed.
See generally Tex. Civ. Prac. & Rem. Code Ann.
§§ 11.002-.104 (West 2017). We find no reversible
error and affirm the trial court's judgment.
on March 16, 2016, Crittendon's original petition alleged
that J. Doe, C. Lee, and J. Raschke, while employed by the
Texas Department of Criminal Justice, violated the Texas
Theft Liability Act. See generally Tex. Civ. Prac.
& Rem. Code Ann. §§ 134.001-.005 (West 2011
& Supp. 2016). The petition alleged that in the course of
Crittendon's transfer between two prison units, C. Lee
received Crittendon's personal property, which included
legal material and twelve books, and that J. Doe inventoried
and confiscated the property as excessive. The legal
materials were subsequently returned to Crittendon but the
twelve books were not. Other than stating that Raschke was
employed by the Department as a property officer, the factual
recitations in Crittendon's pleadings do not mention
Raschke. Crittendon alleged that on December 31, 2015, he
received two responses to the grievances he had filed earlier
in the year. One response stated that his books had been
confiscated and that he had received paperwork on same on
June 18, 2015, and the other stated that his books had been
returned by Correctional Officer K. O'Brien on September
2, 2015. Crittendon alleged that he attempted to exhaust the
grievance process by filing the required Step 2 grievances
but was told he was too late.
served Raschke by certified mail on April 13, 2016, but
failed to perfect service on C. Lee. The unit's warden
accepted service of the J. Doe citation, but no answer was
April 27, 2016, Jeremy Raschke filed a motion to dismiss the
petition as frivolous pursuant to Chapter 14 of the Texas
Civil Practice and Remedies Code. See generally Tex.
Civ. Prac. & Rem. Code Ann. §§ 14.001-.014
(West 2017). The motion alleged Crittendon failed to exhaust
his administrative remedies under section 501.008 of the
Texas Government Code. See generally Tex. Gov't
Code Ann. § 501.008 (West 2012). Additionally, Raschke
alleged that Crittendon failed to file a copy of the final
decision of the grievance system and that he filed an
incomplete declaration of previous filings. Raschke argued
Crittendon's claims lacked an arguable basis because he
alleged tort claims that could have been brought against the
Department, in that the acts were alleged to have been made
by government employees in the performance of their duties,
and for which there is no waiver of immunity.
4, 2016, Raschke filed a motion to declare Crittendon a
vexatious litigant. The motion alleged there was no
reasonable probability that Crittendon would prevail in the
litigation because he (1) failed to exhaust his
administrative remedies; (2) failed to file a required
affidavit stating the date he submitted and received his
grievances; (3) failed to properly describe his previous
lawsuits; (4) failed to declare more than 50 previous pro
se lawsuits to the Court; (5) filed a false declaration
with the Court; (6) raised frivolous claims with no arguable
basis in law; (7) raised claims that are subject to section
101.106 of the Texas Civil Practice and Remedies
and ultimately barred by sovereign immunity and (8) raised
claims against Department employees that are barred by
official immunity. Raschke further alleged that within the
last seven years, Crittendon had commenced, prosecuted, or
maintained at least five separate lawsuits or appeals that
were finally determined adversely to him. Raschke attached
copies of judgments and other documents from six cases in
which Crittendon was the plaintiff and the non-prevailing
5, 2016, Crittendon filed a motion in which he alleged that
"The Plaintiff recently discovered that Defendant
[Raschke] . . . had no direct relation with the
misappropriation of the Plaintiff Property; and because of
these facts, The Plaintiff move (sic) this Court to Delete
said Defendant [Raschke] from this Action as being improperly
19, 2016, the trial court held a hearing on the motion to
declare Crittendon a vexatious litigant. Appearing by
telephone, Crittendon argued that Raschke had no standing
because Crittendon had filed a notice of non-suit as to
Raschke. Crittendon explained that his declaration of
previous filings was incomplete because he had not retained
all of his papers from his previous suits. He asked the trial
court to consider the descriptions of his cases contained in
Raschke's filings, which he argued showed that his claims
were not duplicated in his previous cases. Crittendon
admitted he received a decision on his grievance, but he
suggested that his failure to exhaust his administrative
remedies was the fault of the grievance coordinator and
argued that a Theft Liability Act violation was not
22, 2016, the trial court signed an order declaring
Crittendon a vexatious litigant, ordering him to furnish $12,
500 by September 15, 2016 in order to proceed against the
defendants in the case and prohibiting Crittendon from filing
any new litigation in a Texas court without permission from a
local administrative judge. Crittendon did not deposit
security and the trial court dismissed the suit.
appeal brief, Crittendon argues that section 11.054 of the
Civil Practice and Remedies Code allows a trial court to find
a plaintiff a vexatious litigant only "if the defendant
shows that there is not a reasonable probability that the
plaintiff will prevail in the litigation[.]" Tex. Civ.
Prac. & Rem. Code Ann. § 11.054. He argues that the
procedure for invoking section 11.054 was not invoked because
J. Doe offered no evidence in the hearing and Raschke offered
no evidence on behalf of J. Doe. He contends Raschke lacked
standing to show that there is not a reasonable probability
that Crittendon would prevail in the suit because at the time
of the hearing Raschke was no longer considered a defendant.
trial court had the power to rule on pending motions while it
retained plenary power over the suit. Scott & White
Mem'l Hosp. v. Schexnider, 940 S.W.2d 594, 596 (Tex.
1996). Any attempt by Crittendon to non-suit his claims
against Raschke occurred after Raschke sought affirmative
relief from the trial court by filing a motion to declare
Crittendon a vexatious litigant. Crittendon framed his motion
as correction of a misjoinder under Rule 41, but it was in
substance a nonsuit, which is governed by Rule 162.
Compare Tex. R. Civ. P. 41 with Tex. R.
Civ. P. 162. Any dismissal pursuant to Rule 162 "shall
not prejudice the right of an adverse party to be heard on a
pending claim for affirmative relief[.]"Tex. R. Civ. P.
162. A dismissal under Rule 162 also has "no effect on
any motion for sanctions, attorney's fees or other costs,
pending at the time of dismissal, as determined by the
court." Id. Therefore, Crittendon's notice
of non-suit had no effect on the trial court's authority
to consider and rule on Raschke's motion to declare
Crittendon a vexatious litigant, which Raschke filed before
Crittendon attempted to non-suit his claims against Raschke.
See Garrett v. Macha, No. 2-09-443-CV, 2010 WL
3432826, at *5 (Tex. App.-Fort Worth Aug. 31, 2010, no pet.)
(mem. op.). Furthermore, the filing of a motion to declare
the plaintiff a vexatious litigant stays all other
proceedings in the trial court until after the trial court
rules on the motion, and the trial court is required to
determine the motion. See Tex. Civ. Prac. & Rem.
Code Ann. §§ 11.052- .053. Therefore, the trial
court did not abuse its ...