Opinion
01-20-00556-CR
03-03-2022
THOMAS WAYNE FLORENCE, Appellant v. THE STATE OF TEXAS, Appellee
Do not publish. Tex.R.App.P. 47.2(b).
On Appeal from the 56th District Court Galveston County, Texas Trial Court Case No. 10-CR-1217.
Panel consists of Goodman, Rivas-Molloy, and Farris Justices.
MEMORANDUM OPINION
PER CURIAM.
Appellant Thomas Wayne Florence attempts to appeal the local administrative judge's denial of Florence's request for permission to file a motion for DNA testing after his conviction for sexual assault of a child. We dismiss the appeal for want of jurisdiction.
Florence has been declared a vexatious litigant by three district courts and is the subject of three prefiling orders. Office of Court Administration: Vexatious Litigants, List of Vexatious Litigants Subject to a Prefiling Order, http://www.txcourts.gov/judicial-data/vexatious-litigants (last visited Feb. 28, 2022); Florence v. Guarnelo, No. 01-17-00690-CV, 2017 WL 5495129, at *1 (Tex. App.-Houston [1st Dist.] Nov. 16, 2017, no pet.) (per curiam) (mem. op.) (acknowledging that Florence is listed as vexatious litigant on Office of Court Administration's website); see Tex. Civ. Prac. & Rem. Code § 11.104(b) (requiring Office of Court Administration to maintain list of vexatious litigants on agency's website). These prefiling orders apply to every court in the state and prohibit Florence from filing, pro se, new litigation without first obtaining the permission of a local administrative judge. See Tex. Civ. Prac. & Rem. Code § 11.101(a), (e).
In 2019, Florence, proceeding pro se, filed a motion for DNA testing in the criminal district court in which he was convicted of sexual assault of a child in 2011. See Tex. Code Crim. Proc. art. 64.01(a-1) (authorizing person convicted of criminal offense to file motion for DNA testing in convicting court). Florence requested permission from the local administrative judge to file the motion for DNA testing. See Tex. Civ. Prac. & Rem. Code § 11.102(a). The local administrative judge entered an order finding that Florence previously had been declared a vexatious litigant and denying permission to file the motion. The order prohibited the district clerk from accepting any filings from Florence "related to the issue of 'Article 64 DNA Testing.'" Florence filed a notice of appeal from this order.
A decision of a local administrative judge "denying a litigant permission to file a litigation . . . is not grounds for appeal, except that a litigant may apply for a writ of mandamus with the court of appeals" within thirty days of the decision. Id. § 11.102(f); see Harper v. State, No. 01-18-00030-CV, 2018 WL 1954183, at *1 (Tex. App.-Houston [1st Dist.] Apr. 26, 2018, no pet.) (per curiam) (mem. op.) (dismissing direct appeal of local administrative judge's order denying permission to file litigation for want of jurisdiction); see also In re Johnson, 390 S.W.3d 584, 585-86 (Tex. App.-Amarillo 2012, orig. proceeding) (dismissing vexatious litigant's untimely mandamus petition for want of jurisdiction). Here, Florence did not file a timely application for a writ of mandamus, and he may not file a direct appeal of the local administrative judge's order denying him permission to file the motion for DNA testing. Therefore, the Court concludes that it lacks jurisdiction over this appeal. See Tex. Civ. Prac. & Rem. Code § 11.102(f); Harper, 2018 WL 1954183, at *1. Accordingly, we dismiss the appeal for want of jurisdiction. See Tex. R. App. P. 43.2(f).
The Court cannot construe Florence's notice of appeal as a petition for writ of mandamus because it does not meet the requirements for an original proceeding under Rule of Appellate Procedure 52. See Tex. R. App. P. 52.3; Harper v. State, No. 01-18-00030-CV, 2018 WL 1954183, at *1 (Tex. App.-Houston [1st Dist.] Apr. 26, 2018, no pet.) (per curiam) (mem. op.).
The Court also notes that the Clerk of this Court may not file an appeal by a vexatious litigant subject to a prefiling order unless either the litigant first obtains an order from a local administrative judge permitting the appeal or the appeal is from a prefiling order designating the person a vexatious litigant. See Tex. Civ. Prac. & Rem. Code § 11.103(a); Florence v. Guarnelo, No. 01-17-00690-CV, 2017 WL 5495129, at *1 (Tex. App.-Houston [1st Dist.] Nov. 16, 2017, no pet.) (per curiam) (mem. op.).
The second motion is entitled "Request for Leave of Court to File § 666 U.S.C. in Support of Remand/Hearing." In this motion, Florence requests that the Court review 42 U.S.C. § 666 in support of his arguments on appeal. The Court grants this motion. Finally, the third motion is entitled "Request for Leave of Court During Submission for Court/Justices to Take [Judicial Notice] of Winfield v. State." See 430 S.W.3d 405 (Tex. Crim. App. 2014). In this motion, Florence requests that the Court review Winfield in support of his arguments on appeal. The Court grants this motion. These rulings do not change our decision that we lack jurisdiction over this appeal. Florence, proceeding pro se, filed three motions that are currently pending before the Court. The first motion is entitled "Motion for the New Justices to Take Judicial Notice [] on the Record Evidence in this Court Clerk's File [for Appeal No.] 01-11-00822-CR." In this motion, Florence requests that the Court take judicial notice of a DNA report that was admitted into evidence at his criminal trial and the trial court's docket sheet from his criminal proceedings. See Tex. R. Evid. 201(b) (authorizing courts to judicially notice facts not subject to reasonable dispute). Our review of the record on appeal indicates that these documents are contained in the supplemental clerk's record. Therefore, the Court may review these documents without resorting to judicial notice. Accordingly, the Court dismisses this motion as moot.