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Donohue v. Bandera County Law Enforcement Personnel

Court of Appeals of Texas, Fourth District, San Antonio

January 8, 2020

John M. DONOHUE, Appellant
v.
BANDERA COUNTY LAW ENFORCEMENT PERSONNEL: Daniel R. Butts, J.J. Martinez, Gerald Johnson, Rod Chalmers, D.J. Nowlin, Ernest Ferniz, Luis Moreno, Kim Manglberger, Chris Ahumada, Shane Merritt, Jose Hernandez, Matt Hernandez, Birdie Tyler; Boerne Police Department Personnel: Pablo Morales; San Antonio Police Department Personnel: Perla Dominguez and Kevin Nakata; Denice Martinez and Martha L. Donohue, Appellees

          From the 198th Judicial District Court, Bandera County, Texas Trial Court No. CV-15-0000271 Honorable M. Rex Emerson, Judge Presiding

          Sitting: Sandee Bryan Marion, Chief Justice Patricia O. Alvarez, Justice Beth Watkins, Justice

          MEMORANDUM OPINION

          Sandee Bryan Marion, Chief Justice

         John M. Donohue appeals the trial court's December 9, 2015 order declaring him a vexatious litigant. Donohue contends the motion to declare him a vexatious litigant was not properly filed, some of the defendants did not have standing to present evidence at the hearing on the motion, and the evidence is insufficient to support the order. We affirm the trial court's order.

         Background

         On July 31, 2015, Donohue filed a lawsuit against the appellees in the 198th Judicial District Court of Bandera County, Texas. In the lawsuit, Donohue alleged the appellees committed criminal acts and violated his rights under the Texas Constitution based on actions taken on various dates in August of 2013, including his arrest or attempted arrest on August 13, 2013. On August 13, 2013, Donohue's actions caused the officers to open fire on him which injured Donohue and damaged his truck.

         On September 11, 2015, the Bandera County Law Enforcement Personnel defendants (the "Bandera County appellees") filed a plea to the jurisdiction asserting immunity from suit. On September 14, 2015, the Bandera County appellees filed a motion to declare Donohue a vexatious litigant, asserting Donohue had previously sued them for claims arising from the same set of facts in four district court cases and one county court case. On November 17, 2015, the trial court signed an order setting the Bandera County appellees' plea to the jurisdiction and motion to declare Donohue a vexatious litigant for a hearing to be held on December 9, 2015.

         On December 1, 2015, Denise Martinez, a lawyer who was sued individually, filed a motion to join the Bandera County appellees' motion to declare Donohue a vexatious litigant. Also on December 1, 2015, the Boerne Police Department and Boerne Police Officer Pablo Morales (the "Boerne appellees") filed a plea to the jurisdiction asserting immunity from suit. The Boerne appellees' plea to the jurisdiction was also set for the December 9, 2015 hearing.

         On December 4, 2015, the Bandera County appellees filed the affidavit of Sheriff Daniel R. Butts in support of their motion to declare Donohue a vexatious litigant. In the affidavit, Sheriff Butts states Donohue previously filed the following lawsuits:

1. Cause No. CV-14-0000180, filed on June 4, 2014, in the 198th Judicial District Court of Bandera County, Texas, alleging assault, aggravated assault and false imprisonment claims arising out of the personal injuries he suffered during his August 13, 2013 arrest by the Bandera County law enforcement officials named in that lawsuit. The trial court granted the Bandera County defendants' plea to the jurisdiction, and the order dismissing the claims was affirmed by this court.[1]
2. Cause No. CV-14-0000239, filed on July 24, 2014, in the 198th Judicial District Court of Bandera County, Texas, asserting claims based on the Bandera County law enforcement officials named in that lawsuit firing shots at Donohue's truck during his August 13, 2013 arrest. The trial court granted the Bandera County defendants' plea to the jurisdiction, and the order dismissing the claims was affirmed by this court.[2]
3. Cause No. 2014-CI-09579, filed on June 16, 2015, in Bexar County, Texas alleging the Bandera County law enforcement officials named in that lawsuit conspired to commit and committed perjury by falsely testifying and presenting false documents during the sentencing phase of his criminal trial. The trial court granted the Bandera County defendants' plea to the jurisdiction, and Donohue appealed the order dismissing the claims.[3]
4. Cause No. 15-003-CCL, filed on August 4, 2015, in Kendall County, Texas, alleging claims against the Bandera County law enforcement officials named in that lawsuit arising from an attempted arrest of Donohue on August 9, 2013, for abuse of 911 calls. The trial court granted the Bandera County defendants' plea ...

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