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Mccray v. Allee

Court of Appeals of Texas, Tenth District, Waco
Jul 30, 2008
No. 10-07-00013-CV (Tex. App. Jul. 30, 2008)

Opinion

No. 10-07-00013-CV

Opinion delivered and filed July 30, 2008.

Appealed from the 12th District Court, Walker County, Texas, Trial Court No. 23,242.

Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.


MEMORANDUM OPINION


Donald McCray, a pro se prison inmate, sued three Texas Department of Criminal Justice employees for "racism" (in that they allegedly kept his cell block too cold) and for allegedly destroying some of his personal property after he had complained that his cell block was too cold and had climbed up fire escapes to see if their doors were leaking in cold air. McCray originally filed suit in Travis County as a declaratory judgment action, but upon the defendants' filing of a motion to transfer venue and their answer, the case was transferred to Walker County.

After a June 12, 2006 hearing, the trial court entered a June 15 order declaring McCray to be a vexatious litigant and requiring that he post security in the amount of $500 by December 12, 2006, failing which his case would be dismissed. See generally TEX. CIV. PRAC. REM. CODE ANN. §§ 11.001-.055 (Vernon 2002). McCray did not post the security, and his case was dismissed by operation of the June 15 order. We dismissed McCray's previous appeal of the June 15 order — he had appealed it before the dismissal — because it was a non-appealable interlocutory order that we did not have jurisdiction of. See McCray v. Allee, No. 10-06-00243-CV, 2006 WL 3028142 (Tex.App.-Waco Oct. 25, 2006, pet. dism'd w.o.j.).

McCray appeals again, asserting in two issues that the trial court erred in granting the State's motion for continuance of a scheduled hearing and erred in not granting him a default judgment. McCray's brief does not identify the entry of the vexatious litigant order as an issue, nor is it discussed in his brief.

We review a trial court's ruling on a motion for continuance for abuse of discretion. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986). It appears from the record that several of McCray's motions were set for hearing on April 10, 2006. The defendants filed a motion for continuance because their counsel was scheduled to be out of the state for a family obligation. The trial court reset the hearing for June 12. In doing so, the trial court did not abuse its discretion. We overrule the first issue.

McCray next asserts that the trial court erred in not granting him a default judgment. The defendants were served on July 7, 2005, and their motion to transfer venue containing their answer was filed on July 15, 2005. Having timely answered, the defendants were not in default. The trial court did not err. We overrule McCray's second issue.

Having overruled McCray's issues, we affirm the trial court's dismissal order.


Summaries of

Mccray v. Allee

Court of Appeals of Texas, Tenth District, Waco
Jul 30, 2008
No. 10-07-00013-CV (Tex. App. Jul. 30, 2008)
Case details for

Mccray v. Allee

Case Details

Full title:DONALD RAY MCCRAY, Appellant v. STEPHEN W. ALLEE, ET AL, Appellee

Court:Court of Appeals of Texas, Tenth District, Waco

Date published: Jul 30, 2008

Citations

No. 10-07-00013-CV (Tex. App. Jul. 30, 2008)