Opinion
Appellate case number: 01-18-00311-CV
05-01-2018
Brandy Brenay Charles and Ronald Dwayne Whitfield v. Texas Department of Family and Protective Services
CORRECTED ORDER AND NOTICE OF INTENT TO DISMISS FOR WANT OF JURISDICTION Trial court case number: 2017-02559J Trial court: 314th District Court of Harris County
On April 16, 2018, appellants, Brandy Charles and Ronald Dwayne Whitfield, filed a pro se notice of appeal challenging the trial court's April 12, 2018 "Permanency Hearing Order Before Final Order," and a motion for a free appellate record. Appellants' motion for a free appellate record is denied without prejudice to refiling a Statement of Inability to Afford Payment of Court Costs in the trial court that complies with Texas Rule of Civil Procedure 145. See TEX. R. APP. P. 20.1(b)(1), (c); TEX. R. CIV. P. 145(b). This Court's April 17, 2018 Order and Notice of Intent to Dismiss for Want of Jurisdiction had addressed appellants' similar request for relief filed in a mandamus petition, which was assigned to appellate cause number 01-18-00292-CV, arising from the same underlying trial court cause number 2017-02559J.
On August 10, 2017, this Court had previously denied appellants' similar request for relief filed in a mandamus petition arising from the same underlying trial court cause number 2017-02559J. See In re Charles and Whitfield, No. 01-17-00369-CV, 2017 WL 3429420, at *1 (Tex. App.—Houston [1st Dist.] Aug. 10, 2017, orig. proceeding) (per curiam) (mem. op). On December 15, 2017, the Texas Supreme Court dismissed appellants' similar mandamus petition arising from the same trial court cause number 2017-02559J. See In re Charles and Whitfield, No. 17-0911 (Tex. Dec. 15, 2017, orig. proceeding). Furthermore, on December 19, 2017, the Clerk of the Texas Supreme Court issued a letter to appellants stating that, because appellant Whitfield had been determined to be a vexatious litigant subject to a prefiling order under Texas Civil Practice Remedies Code Section 11.101, unless approval was given for filing the action by the local administrative judge, the Clerk was prohibited by statute from filing any further documents. See In re Charles and Whitfield, No. 01-17-00369-CV, Ltr. from Blake A. Hawthorne, Clerk, The Supreme Court of Texas, dated Dec. 19, 2017.
Section 11.102(a) provides that a "vexatious litigant subject to a prefiling order under Section 11.101 is prohibited from filing, pro se, new litigation in a court to which the order applies without seeking the permission of: (1) the local administrative judge of the type of court in which the vexatious litigant intends to file," or "(2) the local administrative district judge of the county in which the vexatious litigant intends to file if the litigant intends to file in a justice or constitutional county court." TEX. CIV. PRAC. & REM. CODE ANN. § 11.102(a) (West 2002). The Clerk of this Court may not file an appeal presented by a pro se vexatious litigant subject to a prefiling order unless the litigant first "obtains an order from the appropriate local administrative judge described by Section 11.102(a) permitting the filing," but it may file an appeal from a prefiling order entered under Section 11.101 or a timely-filed writ of mandamus under Section 11.102(f) challenging the local administrative judge's denial of permission. Id. at § 11.103(a) (emphasis added), (d) (West 2002).
Accordingly, unless appellant Whitfield files proof that he has obtained an order from the local administrative judge permitting the filing of this notice of appeal, this appeal may be dismissed for want of jurisdiction without further notice. See TEX. CIV. PRAC. & REM. CODE ANN. § 11.103(a); cf. § 11.1035(b) (West 2002) (noting that, if district clerk mistakenly files litigation from vexatious litigant, court shall immediately stay litigation and shall dismiss litigation unless plaintiff obtains order from local administrative judge within ten days of clerk's notice); see also TEX. R. APP. P. 42.3(a), (c). Appellant's permission order from the local administrative judge, if any, is due to be filed with the Clerk of this Court within 30 days from the date of this Order.
It is so ORDERED. Judge's signature: /s/ Laura Carter Higley
[×] Acting individually Date: May 1, 2018