Opinion
Appellate case number: 01-18-00292-CV
05-01-2018
In re Brandy Brenay Charles and Prophet Ronald Dwayne Whitfield, Relators
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 12, 2018, relators, Brandy Charles and Prophet Ronald Dwayne Whitfield, filed a second pro se petition for a writ of mandamus seeking an order to compel the respondent district judge to return the child in question in the underlying suit affecting the parent-child relationship. Relators also seek to have this Court forward this petition to the Honorable Olen Underwood, presiding judge of the Second Administrative Judicial Region, for permission to file litigation under Texas Civil Practice and Remedies Code Ann. § 11.102(2). Also on April 12, 2018, relators filed emergency motions for leave to file this emergency application/petition for writ of mandamus and affidavit to proceed as indigent. However, relators' emergency motions are both denied because no certificate of compliance was included. See TEX. R. APP. P. 52.10(a).
On August 10, 2017, this Court previously denied relators' similar 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 relators' 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 the attached letter to relators stating that, because relator 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 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 original proceeding 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," or else a timely-filed writ of mandamus under Section 11.102. Id. at § 11.103(a) (emphasis added), (d) (West 2002).
Accordingly, unless relator Whitfield files proof that he has previously obtained an order from the local administrative judge permitting the filing of this original proceeding, this mandamus petition 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). Relator'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