Opinion
Nos. 10-07-00084-CR, 10-07-00165-CV 10-07-00166-CR
Opinion delivered and filed July 18, 2007. DO NOT PUBLISH.
Appeal from Original Proceeding. Petitions dismissed.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA. (Chief Justice Gray dissenting)
MEMORANDUM OPINION
Before this Court are three separate mandamus proceedings Carl Long has filed which relate to his conviction for manufacturing a controlled substance and his efforts to have that conviction set aside. In cause number 10-07-00084-CR (denominated as an "appeal"), Long complains of the district clerk's refusal to file two pleadings, an application for writ of attachment and a bill of review/motion to amend motion for new trial, purportedly at the direction of Respondent, the Honorable John H. Jackson, Judge of the 13th District Court of Navarro County. In cause number 10-07-00165-CV, Long complains of Respondent's determination that he is a vexatious litigant under Chapter 11 of the Civil Practice and Remedies Code. And in cause number 10-07-00166-CR, Long seeks mandamus relief from this Court: (1) compelling Respondent to furnish him a copy of attorney Amanda Doan's findings regarding her investigation of new evidence which he alleges would entitle him to a new trial; (2) conducting oversight of Doan's investigation; and (3) granting "any other relief this Court sees appropriate." We will dismiss all three proceedings. Long's complaints in cause numbers 10-07-00084-CR and 10-07-00165-CV stem from an order signed by Respondent on February 20, 2007, in which Respondent made a sua sponte finding that Long is a vexatious litigant under Chapter 11 of the Civil Practice and Remedies Code. Thus, Respondent instructed the Navarro County District Clerk to return a petition Long had tendered for filing. See TEX. CIV. PRAC. REM. CODE ANN. § 11.101(a) (Vernon 2002) (court may enter order prohibiting a person found to be a vexatious litigant from filing new litigation). The district clerk apparently acted pursuant to this order when she refused to accept the two pleadings at issue in cause number 10-07-00084-CR. On the day after Long's petition in cause number 10-07-00084-CR was postmarked, this Court issued an opinion reviewing the history of Long's prosecution and post-conviction proceedings and explaining the proper procedures to be pursued in further post-conviction litigation. See In re Long, No. 10-06-235-CV, 2007 WL 765284 (Tex.App.-Waco Mar. 14, 2007, orig. proceeding) (mem. op.). In response, Respondent signed an order on March 19 which provides in pertinent part:
[T]he Court hereby vacates its previous order which directs the Clerk to reject further requests for relief and lawsuits filed or to be filed by Carl Long. The Clerk shall accept such filings in the future and such matters shall be docketed accordingly.
Carl Long is directed to resubmit such suits as he deems proper.In light of this order, we dismiss Long's petitions in cause numbers 10-07-00084-CR and 10-07-00165-CV as moot. See In re Decker, 187 S.W.3d 838, 839 (Tex.App.-Texarkana 2006, orig. proceeding); In re Keys, 109 S.W.3d 598, 599 (Tex.App.-Fort Worth 2003, orig. proceeding) (per curiam). Long's petition in cause number 10-07-00166-CR essentially asks this Court to become involved in a post-conviction habeas matter. Article 11.07, section 5 of the Code of Criminal Procedure provides, "After conviction the procedure outlined in this Act shall be exclusive and any other proceeding shall be void and of no force and effect in discharging the prisoner." TEX. CODE CRIM. PROC. ANN. art. 11.07, § 5 (Vernon 2005). Thus, the Court of Criminal Appeals and lower courts have recognized that "the exclusive post-conviction remedy in final felony convictions in Texas courts is through a writ of habeas corpus pursuant to [article] 11.07." Olivo v. State, 918 S.W.2d 519, 525 n. 8 (Tex.Crim.App. 1996); Ex parte Mendenhall, 209 S.W.3d 260, 261 (Tex.App.-Waco 2006, no pet.). Accordingly, we dismiss cause number 10-07-00166-CR for want of jurisdiction. See Mendenhall, 209 S.W.3d at 261.
DISSENTING OPINION SERENITY PRAYER
God, grant me the serenity to accept the things I cannot change, courage to change the things I can, and wisdom to know the difference. — Reinhold Niebuhr (1892-1971) With the serenity prayer in mind, I dissent.APPENDIX DISSENTING OPINION
Before I engaged in the time consuming process of drafting something in response to the majority opinion of dismissal I thought I would drop the author a note and make some observations. Those observations have now been edited and converted to the first part of this dissenting opinion. My hope in preparing the original note was that the author would start over on this entire proceeding, as more fully explained below.THE NOTE WITH OBSERVATIONS
The note, which initially was sent as an email on April 6, 2007, had to be edited slightly to convert it to this format and text appropriate for this dissenting opinion. To the extent possible, it is presented as delivered.
1. A transmittal letter addressed to the clerk. This page is stamped received by the clerk of this Court on March 16, 2007. It was marked by Mr. Long with a file number indicating that it related to 10-06-00311-CR. It had, however, been stamped with a docket number by the clerk of this court with a new docket number of 10-07-00084-CR. It was not filed by the clerk of this court. This document seeks no relief but references a NOA (notice of appeal) filed with the trial court clerk with regard to two documents. It is unclear whether there was one or two NOAs filed. There is none attached. The attachments are as follows:
a. Attached to the transmittal letter is an "Application for Writ of Attachment." From the style of this document, it is clear that it was addressed to the district clerk and district court. Not only is this clear from the style, the salutation is "To the Honorable District Clerks and To the Honorable Judge John H Jackson." Nevertheless, it is stamped as being separately "filed" in this Court on March 20, 2007 and the clerk of this Court stamped it with a docket number 10-07-00084-CR. The document had also been filed with the Navarro County District Clerk and bears a file stamp there dated February 28, 2007. The District Clerk's file stamp has, however, been x'd out. (See item (d) below).
b. Also attached to the transmittal letter is an "Application for Bill of Review and/or Motion to Amend Request for New Trial Pursuant to CCP 40.001." From the style of this document, it is clear that it, too, was addressed to the district court. Not only is this clear from the style, but the salutation is "To the Honorable John H. Jackson." Nevertheless, it is also stamped as being separately "filed" in this Court on March 20, 2007 in docket number 10-07-00084-CR.
c. A document with the style "In Re: Attempted Filing of Civil Suit by Carl Long Against Paul Fulbright" titled "Order Directing Refusal to File Suit and Return of Documents to Carl Long." This document is annotated by Mr. Long. It appears that the original document, without the annotations, was filed by the District Clerk of Navarro County on February 20, 2006. The document does not have a docket number, a received stamp, or a file stamp from the clerk of this Court.
d. A letter dated March 1, 2007 from the district court addressed to the clerk of this Court. The judge addressed it as related to the two mandamus proceedings ultimately written by Justice Vance, 10-06-00235-CV and 10-06-00239-CV.
e. A letter dated March 2, 2007 addressed to Carl Long from the district court. The judge addressed it as related to the district court's criminal cause number for Mr. Long. It bears a district clerk file stamp dated March 5, 2007.
2. A "Motion for Explanation of Why? Judge Jackson Says Petitioner Is a Vexatious Litigant, and Request the Establishment of the Prejudice of Judge, Jackson." This document, prepared by Mr. Long, has a header with the docket number 10-06-00311-CR. It has a received stamp by the clerk of this Court dated March 16, 2007 and a file stamp dated March 20, 2007. There is no docket number on this document other than the one in the style, as assigned by Mr. Long, which is 10-06-00311-CR.I also received the draft memorandum opinion in 10-07-00084-CR and a copy of Judge Jackson's March 19, 2007 "Order Vacating Previous Order." This appears to have been something included in the package to assist me in my review of the draft opinion because it is referenced therein. Observations regarding various of the above referenced documents follow. 1. The transmittal letter:
a. The letter notes the enclosure of two documents to which NOAs had been filed with the district clerk. It does not ask the court to docket a new appeal in connection therewith.
b. The letter notes that three copies of the "Motion for explanation. . . ." are "Also enclosed for `filing'". Thus, Mr. Long is asking that this motion be filed. This is item 2 noted above. As best I can tell from this, this is the only document which is being filed from which he is directly seeking relief by the filing of these documents and he designated it as a motion to be filed in 10-06-00311-CR. He notes that the reason for the inclusion of the other documents is "to use all the documents and letters enclosed with this motion as # exhibits [sic] to support said motion `and appeal'". Then he says he wants all of these documents filed and to send him the decision as soon as possible. This last statement needs to be taken in context, remembering that the only docket number in which he wants any of this filed is 10-06-00311-CR.
c. Finally on this "`Cover Letter'", as labeled and identified by Mr. Long, he asks us to do one more thing. "Also would you `please' make the court a copy of the letter dated March 1, 2007 to you from Judge Jackson and return my copy to me. [sic] I will need it for future litigation."2. The opinion:
a. The first paragraph of the opinion is in reference to the two items and says his complaint is that the district clerk will not file them. This presents two problems. First, if that is what he is complaining about, those documents are not items addressed to this Court and should not be filed by the clerk of this Court as freestanding documents seeking relief. Rather they should be, as Mr. Long seeks to have them considered, exhibits to something else. Second, Mr. Long's complaint, in this proceeding, is not that that the district clerk refused to file these documents. In "this proceeding" which is 10-06-00311-CR, not 10-07-00084-CR, he wants to use these as exhibits to his motion. He wants to use them in his appeal(s) too, but his appeal is apparently not here yet.
b. The second paragraph of the opinion is in reference to the motion in which Long seeks to know why Judge Jackson determined he was a vexatious litigant. This paragraph is, in fact, correct except that it implies that it is a separate proceeding. It is not. This is only a motion filed in an existing proceeding, 10-06-00311-CR, not a separate proceeding now docketed as mandamus 10-07-00084-CR.
c. The next paragraph then discusses a little history regarding only one of Long's mandamus proceedings and a part of the district judge's response thereto. A nice little ditty, but it is both incomplete and irrelevant to the relief or ruling sought by Mr. Long.
d. The holding paragraph then dismisses as moot a mandamus proceeding that Long did not file and that does not rule on the relief he has sought.The "motion" that we should be ruling on was set up in case management in docket number 10-06-00311-CR. That is the proceeding in which Mr. Long indicated the motion should be filed. If this is only considered as a motion, there is no reason that motion could not simply be denied and end that issue now. I guess the Clerk could send him back a copy of the letter he requested, but I would also tell him that we do not normally make copies for the parties and that this is the last time we will make copies for him. And we could then have our Clerk make inquiry of the district clerk to see if, in fact, there are one or more notices of appeal filed in regard to the alleged failure to file the two exhibits attached to the motions that will need to be set up as an appeal(s). Alternatively, we could just wait and see if they get forwarded to us as such because Mr. Long does indicate they were actually filed by the district clerk. In addition to the writ-of-attachment and the application-for-bill-of-review, the motion about why Mr. Long is declared a vexatious litigant by the trial court is also set up in case management as a pending motion in the new proceeding, 10-07-00084-CR. Thus, the same motion was docketed in two proceedings. It is not ruled on by the opinion. After making the foregoing comments based upon the documents provided with the draft opinion, I decided that, given the confusion, I had better pull the pleading and correspondence files for 10-07-00084-CR and 10-06-00311-CR. I could not find the correspondence file for 10-06-00311-CR. In the pleading file, I found a copy of the motion with the new docket number in the file for 10-07-00084-CR, although the copy being circulated with the opinion is not so stamped. In the new proceeding that was set up as an appeal, Mr. Long was sent the standard new-criminal-file letter and docketing statement. He returned it and said that this new criminal appeal related to the attachments that had been provided with the earlier mandamus, which would be the writ-of-attachment and the application-for-bill-of-review that were also attachments to the motion. I still have not found what mandamus he is referring to unless it was 10-06-00311-CR, or possibly one of the two written by Justice Vance, 10-06-00325-CV and 10-06-00329-CV. Basically, by the docketing statement, Mr. Long has converted what should have been set up as a motion but was set up as a criminal appeal to a new mandamus proceeding. Thus, what is actually the most important document to understand what is being done in the opinion, which is Mr. Long's docketing statement, was not being circulated with the draft opinion but was left in the file. I question if this new proceeding would be properly denominated as a criminal proceeding with the designation "CR" if the other two mandamus proceedings regarding the trial court proceedings in which Mr. Long wanted to file documents with the district clerk were designated as civil proceedings, "CV." But this whole thing is a mess because we are letting Mr. Long get away with making a mockery of the rules. It is this type litigant where it is critical to proceed one step at a time and why I advocated that only one chamber deal with this type of repeat litigant. That is what we have been doing in the appeals/proceedings in which other repeat litigants are involved. And that is what we did in an appeal in which it was clear from the beginning that we had a difficult litigant who refused to regard the rules as applying to proceedings in which they were representing themselves, and who refused to respond as requested to our notices and requests of this Court's clerk. In fact, it was what we were doing in Mr. Long's numerous proceedings until the two mandamus proceedings were taken over by a different chamber and those two requests for mandamus were granted rather than requiring Mr. Long to proceed in the proper manner. What I would do, after cleaning up the filing and case management, with everything other than the motion and a copy of the exhibits, is to return it all to Mr. Long and tell him we cannot tell what he is requesting and that his motion filed in 10-06-00311-CR for an explanation of why Judge Jackson determined him to be a vexatious litigant is DENIED, unless our plenary power has expired, in which case I would tell him it is dismissed because our plenary power has expired and we have no jurisdiction to grant any relief in that proceeding. I asked the authoring justice if he would consider cleaning up these proceedings, both as to what is in case management and the opinion, before I have to do anything else in response to the draft opinion in circulation. And this is where my original communication and request to the authoring justice ended. The authoring justice rejected my request.
WHERE TO NEXT?
When my request was rejected, I conducted a further examination of the files. Upon further review I have determined that the following is what should be done with the plethora of documents now presented to us by Mr. Long. The writ-of-attachment apparently relates, though only generally, to the mandamus proceeding written on by Justice Vance in 10-06-00239-CV. That mandamus related to the district clerk's refusal to file a suit against Elaine and Jorja Stout. The writ of attachment sought to be filed by Mr. Long was a result of the trial court's alleged failure to require Mr. and Mrs. Stout to attend and give testimony at Mr. Long's habeas proceeding. Mr. Long has properly denominated this document as an exhibit to his motion and possibly as an exhibit to 10-06-00239-CV or a new proceeding that has not yet been filed related to the district clerk's alleged refusal to accept the document for filing. It is unclear if this document was filed in the habeas proceeding or not. What is clear is that this is not a document seeking a ruling from this Court, because it is only an exhibit to some other request. Giving the absolute broadest construction to Mr. Long's pleadings before this Court, in particular the docketing statement filed in this proceeding, I believe Mr. Long is requesting that the district clerk be compelled to file this writ-of-attachment, although I am not sure in which proceeding Mr. Long wanted to file it. Because there is actually no live pleading before us in which Mr. Long articulates his request, I would inquire of Mr. Long which of the numerous proceedings either in the trial court, or this Court, to which this document relates, and what relief he seeks with regard to it. The application-for-bill-of-review apparently relates to Mr. Long's effort to have the trial court reconsider its prior ruling denying the requested disclosure of the informant in Mr. Long's criminal conviction. Mr. Long has properly designated this document as an exhibit to the motion. By the docketing statement, it is clear that he sought to file this document with the district clerk but it, too, was rejected. It is unclear whether the application was to have his habeas corpus proceeding or his original criminal proceeding reconsidered. The motion-for-explanation-of-why presents an entirely different problem for us and Mr. Long. By the trial court's February 20, 2007 order in connection with Mr. Long's attempt to file a civil proceeding against Don Phillips, one of the attorneys who represented Mr. Long and has subsequently been sucked into the vortex of these Long proceedings, Mr. Long has been declared a vexatious litigant. It is critical to note that this order was not before us in either of the prior mandamus proceedings written on by Justice Vance in 10-06-00235-CV and 10-06-00239-CV. There was only one "order" in the file of either of these proceedings and it was not properly in the record, but it was not the order that Mr. Long is now complaining about. And in Judge Jackson's letter in response to the mandamus proceeding, Judge Jackson only vacates one order. The full text of Judge Jackson's order is as follows:ORDER VACATING PREVIOUS ORDER
Pursuant to the opinion of the Tenth Court of Appeals in Nos. 10-06-00235-CV and 10-06-00239-CV, the Court hereby vacates its previous order which directs the Clerk to reject further requests for relief and lawsuits filed or to be filed by Carl Long. The Clerk shall accept such filings in the future and such matters shall be docketed accordingly.
Carl Long is directed to resubmit such suits as he deems proper.
Although this Court is inclined to believe that the Dissenting Opinion is a correct exposition of the circumstances and applicable law, a cost/benefit analysis leads the Court to conclude that (1) the requests of Mr. Long can be fairly and expeditiously considered by this Court, (2) The Supreme Court of Texas has far more pressing issues to explore, and (3) this Court is loath to deprive the Court of Appeals from its consideration of Mr. Long's future appeals.SIGNED the 19th day of March, 2007. John H. Jackson, Judge 13th Judicial District Though titled as a motion, Mr. Long clearly wants the propriety of that February 20, 2007 ruling determined. The determination by a trial court that a particular litigant is "vexatious" and prohibited from filing future litigation is an order that is subject to appeal. Giving Mr. Long's pleading its logical and intended effect, it is a document by which Mr. Long seeks to have an order of a district judge reviewed for propriety by an appellate court. We normally call that document a notice-of-appeal. Mr. Long's designation as a vexatious litigant is an order that should have serious consequences for Mr. Long in his quest to file future proceedings, as he has already indicated he intends to do. It is an order that is civil in nature, not criminal, and therefore, it should not be the subject of this proceeding which has been designated CR. If, on the other hand, it is the subject of the majority opinion as it appears that the majority has now made it, then it is certainly not moot as the majority has determined. By dismissing this proceeding, the trial court's February 20, 2007 determination declaring Mr. Long to be a vexatious litigant remains the undisturbed ruling of the trial court. And unless the majority's opinion is reviewed and reversed by a higher court, that determination will be a determination that will soon become final for appellate purposes. Anyone who has followed the extensive proceedings in which Mr. Long has been involved before this Court and the members' of this Court's public disagreement over the nature and manner of the disposition of these numerous proceeding may be surprised to find that I am of the opinion that Mr. Long is entitled to a review and determination of whether the trial court properly determined that Mr. Long is a vexatious litigant. The February 20, 2007 determination that Mr. Long is a vexatious litigant is an order that Mr. Long has sought the review of by this Court and the majority has held that the trial court's determination that Mr. Long is a vexatious litigant is moot. It is not. That ruling has not been reviewed. Because it is impossible for me to understand, much less agree with, what the majority is doing in this proceeding, and because my lengthy note was unsuccessful in obtaining clarification of what they are doing in this proceeding, I have no alternative other than to lodge my dissent and await the time with patience until the effect of their holding is manifested in subsequent proceedings pursued by Mr. Long.