Opinion
01-20-00556-CR
01-24-2023
IN RE THOMAS WAYNE FLORENCE, Relator
Do not publish. Tex.R.App.P. 47.2(b).
Original Proceeding on Petition for Writ of Mandamus
Panel consists of Justices Goodman, Rivas-Molloy, and Farris.
MEMORANDUM OPINION ON REHEARING
PER CURIAM
Relator Thomas Wayne Florence, proceeding pro se, challenges the local administrative judge's orders prohibiting the district clerk from accepting the filing of Florence's pro se motion for post-conviction forensic DNA testing under Code of Criminal Procedure Chapter 64. The judge prohibited the filing of the motion because Florence previously had been found to be a vexatious litigant subject to prefiling orders under the vexatious litigant statute in Civil Practice and Remedies Code Chapter 11. This Court's March 3, 2022 memorandum opinion dismissed the appeal for want of jurisdiction.
The underlying case is The State of Texas v. Thomas Wayne Florence, Cause No. 10-CR-1217, in the 56th District Court of Galveston County, Texas, the Honorable Lonnie Cox presiding.
Florence has filed a timely motion for rehearing arguing that the local administrative judge's orders are void because the vexatious litigant statute applies only in civil proceedings, not in criminal proceedings such as post-conviction DNA testing. We grant Florence's motion for rehearing, withdraw our March 3, 2022 memorandum opinion and judgment, and issue the following opinion in its place. The Court construes Florence's notice of appeal as a petition for writ of mandamus.
See Ex parte Caldwell, 58 S.W.3d 127, 130 (Tex. Crim. App. 2000) (observing that substance of filing, not title, governs), superseded by statute on other grounds as recognized by Druery v. State, 412 S.W.3d 523, 534 (Tex. Crim. App. 2013); In re Barrera, No. 03-22-00533-CR, 2022 WL 5047775, at *1 (Tex. App.-Austin Oct. 5, 2022, no pet.) (mem. op., not designated for publication) (construing pro se notice of appeal as petition for writ of mandamus); In re Richardson, No. 04-22-00065-CR, 2022 WL 465405, at *1 (Tex. App.-San Antonio Feb. 16, 2022, no pet.) (per curiam) (mem. op., not designated for publication) (same); Pegues v. State, 518 S.W.3d 529, 537 (Tex. App.-Houston [1st Dist.] 2017, no pet.) (stating that courts review pro se pleadings with "patience and liberality") (citation omitted).
Because we agree with Florence that the local administrative judge's orders are void, we conditionally grant the writ.
In 2011, a Galveston County jury convicted Florence of the second-degree felony offense of sexual assault of a child and sentenced him as a habitual offender to seventy years' imprisonment. See Tex. Penal Code §§ 22.011(a)(2)(A), (f), 12.42(b), 12.32(a). In 2019, he filed a pro se motion for post-conviction DNA testing in the convicting criminal court. See Tex. Code Crim. Proc. art. 64.01(a-1) (authorizing person convicted of criminal offense to file motion for forensic DNA testing of evidence in convicting court).
Prior to filing this motion, Florence had been declared a vexatious litigant by three district courts, and he 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 Jan. 5, 2023); see 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., not designated for publication) (acknowledging Florence's status as vexatious litigant); see also Tex. Civ. Prac. & Rem. Code §§ 11.054 (listing criteria for finding person to be vexatious litigant), 11.101(a) (authorizing prefiling order). Prefiling orders apply to every court in the state and prohibit the subject of the order from filing "new litigation" pro se without the permission of a local administrative judge. Tex. Civ. Prac. & Rem. Code §§ 11.101(e), 11.102(a).
Pursuant to the prefiling orders entered against Florence under the vexatious litigant statute, the local administrative judge entered an order finding that Florence had continued filing documents in the criminal case despite previously having been declared a vexatious litigant. The local administrative judge ordered the district clerk to reject any filings from Florence that do not comply with the vexatious litigant statute.
Florence subsequently filed a motion requesting a ruling on his motion for DNA testing. The local administrative judge entered an order denying this request on the grounds that Florence previously had been declared a vexatious litigant and, "without the necessity of a hearing, that Mr. Florence's pleadings do not have merit." The order further prohibited the district clerk from accepting any pleadings from Florence "related to the issue of 'Article 64 DNA Testing.'" Florence appealed.
In this original mandamus proceeding, Florence argues that the local administrative judge's orders prohibiting the district clerk from accepting the motion for DNA testing are void because the vexatious litigant statute applies only to civil proceedings, not to criminal proceedings like those for post-conviction DNA testing.
Generally, mandamus relief is proper when (1) a relator has no other adequate legal remedy and (2) the act the relator seeks to compel is purely ministerial. In re State ex rel. Ogg, 618 S.W.3d 361, 363 (Tex. Crim. App. 2021) (orig. proceeding); State v. Gault, __S.W.3d__, No. 01-22-00157-CR, 2022 WL 4830811, at *6 (Tex. App.-Houston [1st Dist.] Oct. 4, 2022, orig. proceeding). When an order is void, however, the relator need not establish the first prong because "mandamus will issue to vacate a void order even when there is an adequate remedy by appeal." Gault, 2022 WL 4830811, at *6 (quoting In re Off. of Att'y Gen. of Tex., 264 S.W.3d 800, 805 (Tex. App.-Houston [1st Dist.] 2008, orig. proceeding)).
"An act is purely ministerial if the relator has a clear and indisputable right to the relief sought, i.e., when the facts and circumstances of the case dictate but one rational decision under unequivocal, well-settled, and clearly controlling legal principles." Id. (quoting In re Yeager, 601 S.W.3d 356, 358 (Tex. Crim. App. 2020) (orig. proceeding)). "This requirement of a ministerial duty is sometimes discussed in terms of a trial court's authority or jurisdiction." Id. (quoting In re Gambling Devices & Proceeds, 496 S.W.3d 159, 164 (Tex. App.-San Antonio 2016, pet. denied)). "If a trial judge lacks authority or jurisdiction to take a particular action, the judge has a 'ministerial' duty to refrain from taking that action, to reject or overrule requests that he take such action, and to undo the action if he has already taken it." Id. (quoting In re Gambling Devices, 496 S.W.3d at 164). "In other words, a trial court has a ministerial duty to vacate a void order." Id.; see State ex rel. Thomas v. Banner, 724 S.W.2d 81, 85 (Tex. Crim. App. 1987) (orig. proceeding) ("Absent proper jurisdiction, it was the trial court's ministerial duty to vacate the orders.").
A court order is void if the record shows that the court had no jurisdiction over the parties, no subject-matter jurisdiction, no jurisdiction to enter the order, or no capacity to act as a court. Gault, 2022 WL 4830811, at *6. That is, "when a judge . . . lacks authority to issue an order, the order is void." Id.; see State ex rel. Holmes v. Salinas, 784 S.W.2d 421, 427-28 (Tex. Crim. App. 1990) (orig. proceeding) ("Because [the trial court] did not have the authority to issue the orders, the orders are void."). Mandamus relief is available when a court issues a void order outside of the court's statutory authority. Gault, 2022 WL 4830811, at *7.
In this case, under the authority of the vexatious litigant statute, the local administrative judge issued two orders prohibiting the filing of Florence's motion for DNA testing. The vexatious litigant statute authorizes a court to find that a plaintiff is a vexatious litigant and, in turn, to enter an order prohibiting the plaintiff from filing "a new litigation" pro se without permission from a local administrative judge. Tex. Civ. Prac. & Rem. Code §§ 11.054, 11.101(a). Chapter 11 defines "litigation" as "a civil action commenced, maintained, or pending in any state or federal court." Id. § 11.001(2) (emphasis added).
When interpreting statutory language, courts give effect to the plain meaning of the language unless it is ambiguous or its plain meaning leads to absurd results that the legislature could not have possibly intended. Ex parte Ulloa, 514 S.W.3d 756, 758 (Tex. Crim. App. 2017). If a word or phrase is defined in the statute, we must give effect to that statutory definition. Id.; Tex. Gov't Code § 311.011(b) ("Words and phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly."). Courts presume that every word has a purpose and strive to give effect to each word, clause, and sentence in a statute if reasonably possible. In re Yeager, 601 S.W.3d at 359.
Because the vexatious litigant statute defines "litigation," we must afford the term its statutory definition. See Ex parte Ulloa, 514 S.W.3d at 758; Tex. Gov't Code § 311.011(b). As stated above, "litigation" is defined as a "civil action . . . ." Tex. Civ. Prac. & Rem. Code § 11.001(2). This definition plainly and unambiguously applies only to civil actions, not to all legal actions. If we were to construe the vexatious litigant statute to apply to criminal actions, the word "civil" in the statutory definition would be rendered meaningless. See In re Yeager, 601 S.W.3d at 359. Therefore, the text itself shows that the statute does not apply to criminal proceedings.
In its response to Florence's motion for rehearing, the State argues that whether the vexatious litigant statute applies to criminal cases is "an open question" under Texas law. We disagree.
The Court of Criminal Appeals has held that the vexatious litigant statute does not apply to a habeas corpus proceeding because "the proceeding is criminal, not civil, in nature." Aranda v. Dist. Clerk, 207 S.W.3d 785, 786 (Tex. Crim. App. 2006) (per curiam) (orig. proceeding). In Aranda, the district clerk refused to file a defendant's application for a writ of habeas corpus because the defendant was found to be a vexatious litigant subject to a prefiling order. Id. On appeal, the court considered whether the vexatious litigant statute applied to a habeas proceeding filed under Code of Criminal Procedure article 11.07. Id.
The court stated that the vexatious litigant statute expressly applies to a "civil action," but a habeas proceeding is criminal, not civil, in nature. Id. (stating that when defendant who is confined for violating criminal statute files application for writ of habeas corpus challenging confinement, habeas proceeding is criminal action). The court concluded that because the habeas proceeding was criminal in nature, the vexatious litigant statute did not apply to prohibit the defendant from filing an application for a writ of habeas corpus. Id. Under Aranda and a plain reading of the statutory text, we conclude that the vexatious litigant statute does not apply to criminal proceedings.
We also conclude that a proceeding on a motion for post-conviction forensic DNA testing is criminal in nature, not civil. In Kutzner v. State, the Court of Criminal Appeals considered whether a Chapter 64 DNA proceeding is a criminal case for purposes of its constitutional jurisdiction. 75 S.W.3d 427, 429 (Tex. Crim. App. 2002) (stating that Texas Constitution provides Court of Criminal Appeals with final appellate jurisdiction "in all criminal cases") (quoting Tex. Const. art. V, § 5(a)). The court reasoned that such a proceeding is a criminal action because the Legislature enacted Chapter 64 as part of the Code of Criminal Procedure, and a Chapter 64 proceeding "is closely connected to, and could affect, a conviction and sentence assessed to a criminal defendant in a criminal case." Id. Thus, for purposes of its constitutional jurisdiction, the court held that a Chapter 64 DNA proceeding is a criminal case. Id. at 431.
Although Kutzner was decided in the jurisdictional context, its reasoning applies here. DNA testing is authorized by the Code of Criminal Procedure, a code which "is intended to embrace rules applicable to the prevention and prosecution of offenses against the laws of this State." Tex. Code Crim. Proc. art. 1.03. Moreover, a criminal defendant must file a motion for post-conviction DNA testing in the court which convicted the defendant of a criminal offense. Id. art. 64.01(a-1). This strongly indicates that Chapter 64 DNA testing proceedings are criminal in nature. Furthermore, if Florence's motion is successful, the result would be "closely connected to, and could affect" the conviction and sentence in his 2011 criminal case. See Kutzner, 75 S.W.3d at 429. We therefore conclude that the proceeding on Florence's motion for post-conviction forensic DNA testing under Code of Criminal Procedure Chapter 64 is a criminal action.
Because the proceeding is criminal in nature, the vexatious litigant statute did not authorize the local administrative judge to enter the orders prohibiting the filing of Florence's motion for DNA testing. The judge's lack of authority to enter the orders renders the orders void. See Salinas, 784 S.W.2d at 427-28; Gault, 2022 WL 4830811, at *6-7. The judge had a ministerial duty to vacate the void orders. See Banner, 724 S.W.2d at 85; Gault, 2022 WL 4830811, at *6. Therefore, Florence has established his entitlement to mandamus relief regardless of whether he has an adequate legal remedy. See In re State ex rel. Ogg, 618 S.W.3d at 363; Gault, 2022 WL 4830811, at *6.
The Court conditionally grants Florence's petition for writ of mandamus. We are confident that the local administrative judge will vacate the orders prohibiting the district clerk from accepting Florence's motion for post-conviction forensic DNA testing. The writ will issue only if the local administrative judge fails to do so. Any pending motions are dismissed as moot.