NO. 07-11-00250-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL D NOVEMBER 22, 2011

RICKY W. TURNER, APPELLANT

v. J.O. GRANT, ET.A L., APPELLEES

FROM THE 108TH DISTRICT COURT OF POTTER COUNTY; NO. 99,218-E; HONORABLE DO UGLAS WOODBURN, JUDGE

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

MEMORANDUM OPINION Plaintiff Ricky W. Turner, 1 a prison inmate appearing pro se and in forma pauperis, appeals the dismissal of his suit for damages against seven prison employees. For the reasons that follow, we will reverse and render in part and otherwise affirm.
Background
On December 28, 2010, Turner filed su it against defendants J. O. Grant, E. T. Jennings, P. Vasquez, O. B. Ga rza, H. O. Medina, H. J. Ar ias, and Larry Berger seeking

1 The trial court’s orders of June 2, 2011 iden tify Turner as “Ri cky J. Turner.”2 money damages for alleged depriv ations of his constitutional rights. None of the defendants were served with process and none appeared in the trial court.
On January 31, 2011, the trial court sua sponte signed an order declaring Turner a vexatious litigant. The order required that Turner furnish security of $500 within 120 days of the order on peril of dismissal for nonc ompliance. The order directed the district clerk to forward a copy of the order to the Office of Court Ad ministration (OCA) according to the requirement of § 11.104(a) of the Texas Civil Practice and Remedies Code. Finally, the order contained an anti-su it injunction barring Tu rner from filing any new litigation in propria persona in a Texas state court pursuant to Civil Practice and Remedies Code §§ 11.051-11. 057. Turner sought vacati on of the order through a February 28 motion for reconsideration and a March 21 “motion to rescind.” The record does not indicate the trial court expressly ruled on these motions.
On June 2, 2011, the trial court signed an order reciting that on January 28 it found Turner was a vexatious litigant and ordered t hat he furnish security by March 31. 2 The order decreed, “[b]ecause [Turner] has not furnished such security by the date demanded by the Court, the above refer enced and numbered cause is DISMISSED.”
A second order signed June 2 states “all caus es of action in the above styled suit brought by [Turner] against all Defendants are DISMISSED in th eir entirety. The Claims against Defendants are dismissed, as frivolous, pursuant to Chapter Fourteen of the

2 The 120-day deadline measured from Ja nuary 31 would requir e that Turner furnish the $500 security by May 31, 2011. The record offers no explanation for the discrepancies in the dates stated in t he court’s January 31 and June 2 orders.3 Civil Practice & Remedies Code.” The record contains no single document in the form of a final judgment. Turner f iled a notice of appeal on June 24.
Analysis
On appeal, Turner contends the trial cour t abused its discretion by finding him a vexatious litigant and by finding his clai ms against appellees were frivolous.
Vexatious Litigant Determination
A defendant may move for an order finding t he plaintiff is a vexatious litigant and requiring the plaintiff to furnish security. Tex. Civ. Prac. & Rem. Code Ann. § 11.051 (West 2002). 3 The motion must be filed on or befor e the ninetieth day after the date the defendant files its or iginal answer. Id. When a defendant file s a motion pursuant to § 11.051, the litigation is stayed until the tenth day after th e motion is denied or the tenth day after the defendant receives notice that the plaintiff has fu rnished the required security. § 11.052.
On receipt of the motion and after notice has been given to all parties, the trial court shall conduct a hearing on the motion, at which it may consider any material evidence. § 11.053(a),(b). A court may fi nd a plaintiff a vexatious litigant if the defendant shows there is not a reasonable probability the plai ntiff will prevail in the litigation and that one of the grounds listed in paragraphs (1), (2) and (3) of § 11.054 is satisfied. See § 11.054(1) (plaintiff has filed mult iple suits in seven-year period);

3 All subsequent citations to the Texas Civil Practice and Remedies Code (West 2002) will be by section number only.4 11.054(2) (plaintiff repeatedly ha s attempted to relitigate clai m); 11.054(3) (plaintiff has been declared vexatious litigant by anot her court in similar proceeding).
If, after hearing the evidence on the motion, the trial court determines the plaintiff is a vexatious litigant, it shall order the plaint iff to furnish security for the benefit of the moving defendant. § 11.055(a). The trial court must dismiss the litigation against the moving defendant if the plaintiff fails to furnis h the security within the time fixed by the trial court’s order. § 11.056. If security is furnished and the litiga tion is dismissed on the merits, the moving defendant has rec ourse to the security. § 11.057.

A trial court is authorized to enter a prefiling order enjoining a per son from filing a new litigation, in propria persona, without the prior permission of the local administrative judge if, after notice and a hearin g, the trial court finds the person is a vexatious litigant, and the local administrative j udge has not granted permission to the person to file the litigation. § 11.101(a). A clerk of the court must provide a copy of the prefiling order to the OCA which is required to maintain a list of vexatious liti gants. § 11.104.
“We review issues concerning Chapter Eleven of the Texas Civil Practice and Remedies Code under an abuse of discretion standard.” Devoll v. State, 155 S.W.3d 498, 502 (Tex.App.--San Antonio 2004, no pet.). Because a court may declare a person a vexatious litigant only after making certain statutorily prescribed evidentiary findings, we consider the l egal and factual sufficiency of the evidence supporting any express or implicit findi ngs of the trial court. Leonard v. Abbott, 171 S.W.3d 451, 459 (Tex.App.--Austin 2005, pet. denied). But under the abuse of di scretion standard we employ, the legal and factual sufficiency of the evidence are not independent grounds of5 error, but relevant factors for determining w hether the trial court abus ed its discretion. See Zieba v. Martin, 928 S.W.2d 782, 786 (T ex.App.--Houston [14th Dist.] 1996, no writ); Crawford v. Hope, 898 S.W.2d 937, 940-41 (Tex.A pp.--Amarillo 1995, writ denied). If an abuse of discretion is shown, we then consider whether the error was harmless. See Tex. R. App. P. 44.1(a).
By its January 31 order, on its own motion, without notice to Tu rner and without a hearing, the trial court declared him a vexatious litigant. In an amicus brief, the Attorney General of Texas urges us to hold the trial court possessed authority sua sponte to declare Turner a vexatious litig ant. For support it points to In re Douglas, where the court affirmed a trial court’s sua sponte finding that the plainti ff was a vexatious litigant

. In re Douglas, 333 S.W.3d 273 (Tex.App.--Houston [1st Dist.] 2010, pet. denied). We find it unnecessary to determine whether Chapter 11 permits a court to make the vexatious litigant determination sua sponte , and so to apply that holding of In re Douglas . Unlike the plaint iff found vexatious in Douglas , 333 S.W.3d 279, Turner had no notice of the trial court’ s intention to consider wh ether he should be declared a vexatious litigant. He was not afforded a hearing on the is sue, and, significantly, no evidence supported a statutory ground fo r a vexatious litigant finding.
Section 11.05(1)-(3) specifies three alte rnative grounds necessary to a vexatious litigant determination. At least one must be found. § 11.054(1)-(3).
In his petition, Turner list ed eleven lawsuits he previously had filed, pursuant to the requirements of Civil Practice & Remedies Code Chapter 14. See § 14.004 (inmate must file affidavit identifying previously-filed lawsuits). Solely for purposes of this6 discussion, we assume the accuracy of Turner’s disclosure of these suits since the trial court had no other evidence before it fo r making the determination required by § 11.054(1). 4 Of the lawsuits Turner listed, onl y two were commenced, prosecuted, or maintained in the seven-year period immedi ately preceding January 31, 2011. There is thus no evidence for making a vexatious lit igant determination u nder § 11.054(1).
Turner’s disclosure of prior lawsuits does not provide evidence he had attempted to relitigate matters previously determined , so there is no evidence for making a vexatious litigant determinat ion under § 11.054(2).
Finally, there is no evidence Turner was declared a vexatious litigant by another state or federal court. Accordingly, a finding of vexatious litigant is not possible under § 11.054(3).

A trial court abuses its discretion when it rules without supporting evidence. Bocquet v. Herring , 972 S.W.2d 19, 21 (Tex. 1998). Bec ause the court had before it no evidence supporting its finding Turner met the requirements of § 11. 054 for a vexatious litigant determination, it abused its discret ion by making the determination. And, because its order that Turner furnish security was expr essly based on its vexatious litigant determination, we must conclude it s order that he furnish security within 120 days also was an abuse of discretion.

4 In its amicus brief, the Attorney General contends a review of public records will demonstrate Turner’s involvem ent in proceedings additiona l to those disclosed by his pleadings. Our appellate review, however, is lim ited to the appellate record. The only indication of Turner’s prior lawsuits contai ned in the record is the disclosure in his pleadings.7 Citing Subchapter B of Chapter 11, the January 31 order concludes with language enjoining Tur ner from filing, pro se , any new litigation in Texas without obtaining the permission of the local administrative judge. The order also directs the district clerk to forward a copy of the or der to the OCA pursuant to § 11.104(a). We judicially notice that because of the Jan uary 31 order Turner now appears on the OCA’s website as a vexatious litigant subject to a prefiling order. Available at http://www.courts.state.tx.us/ oca/Vexatious_Litigants.pdf A prefiling order under § 11.101 and its posting by t he OCA under § 11.104 depend on a vexatious litigant finding, a finding we have deter mined the trial court properly could not make on this record.
Accordingly, we find the trial court abused its discretion in rendering the January 31 order and the June 2 order dism issing Turner’s case for fa ilure to furnish security.

An abuse of discretion will not constitu te reversible error unless it probably caused the rendition of an improper judgment. See Tex. R. App. P. 44.1(a)(1). We conclude the trial court’s error in the present case was not harmless. Accordingly, we vacate its order of January 31, 2011, and the or der of June 2, 2011, dismissing Turner’s case for failure to furnish security.
Frivolous Claim Finding
As noted, the court signed a second order, also on June 2, 2011, decreeing Turner’s claims against the defendants “are dismissed, as frivolous, pursuant to Chapter Fourteen of the Civil Practice & Remedies Code.” This order also was rendered sua sponte without a hearing. § 14.0 03 (court may dismiss case as frivolous before service8 of process); Geiger v. Williams, 2007 Tex. App. Le xis 9662, at *8 (Tex.App--Tyler Dec. 12, 2007, pet. denied) (me m. op.) (citing Gowan v. Tex. Dep’t of Criminal Justice, 99 S.W.3d 319, 323 (Tex.App.--Texarkana 2003, no pet.) (“Neither a hearing nor an opportunity to respond is required prior to di smissal of an inmate’s lawsuit when the pleadings are procedura lly deficient”)).
In a suit subject to Chapter 14, an inmate filing an affidavit or unsworn declaration of inability to pay costs must file a separate affidavit or declaration describing each pro se lawsuit, other than one coming under the Family Code, he previously filed by inter alia stating the operative facts for which relief was sought. § 14.004(a)(2)(A). For determining whether a claim is frivolous or malicious, the trial court may consider whether the claim is substantially similar to a previous claim filed by the inmate because the claim arises from the same operative facts. § 14.003(b)(4).

Because Turner’s suit was dismissed as frivolous without a hearing, we review the trial court’s decision de novo , affirming only if his claims have no arguable basis in law. Chapa v. Livingston, No. 10-09-0273-CV, 2010 Tex. App. Lexis 6986, at *2-3 (Tex.App.--Waco Aug. 25, 2010, no pet.) (mem. op. ). We take as true the allegations of the pleading; that is, we consi der whether, as a matter of law, it states a cause of action authorizing relief. Scott v. Gallagher, 209 S.W.3d 262, 266-67 (T ex.App.--Houston [1st Dist.] 2006, no pet.). A case has no arguable ba sis in law if it is based on “an indisputably meritless legal t heory,” or incredible or irrational allegations of fact. Minix v. Gonzales, 162 S.W.3d 635, 637 (Tex.App.--Houst on [14th Dist.] 2005, no pet.) (quoting Gill v. Boyd Distrib. Ctr., 64 S.W.3d 601, 603 (Tex.App. --Texarkana 2001 pet. denied)9 (quoting Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1992))).
As noted, Turner listed elev en lawsuits in his pleading. For each, he identified the parties, the trial court, the judge, the date of filing and dat e of disposition, the docket number, and the nature of disposition. He di d not, however, state t he operative facts of each case. Absent this information, dete rmining whether Turner’s claims in the underlying suit are substantially similar to his previous claims is not possible. § 14.003(b)(4). Faced with such pleadings, the trial court could have assumed the underlying suit is substant ially similar to one or more of the suits Turner previously filed and, therefore, frivolous. Carson v. Walker, 134 S.W.3d 300, 303 (Tex.App.--Amarillo 2003, pet denied) (citing Clark v. Unit, 23 S.W.3d 420, 422 (Tex.App.--Houston [1st Dist.] 2000, pet. denied)). Because this factor for determining whether Turner’s claim is frivolous appears on the face of his pleadings, the trial cour t was not required to resolve any contested facts and could make its de termination as a matter of law without a hearing. The trial court did not abuse its discretion by dismissing the underlying case pursuant to Chapter 14.

Conclusion
We reverse and render judgment va cating the January 31, 2011, vexatious litigant order in its entirety and the June 2, 2011, order dismissing Turner’s case for failure to furnish security. Otherwise, we affirm the trial cour t’s June 2, 2011, order dismissing the case on the ground t hat it is frivolous. The cler k of this court shall furnish10 the OCA a copy of this opinion and the corresponding judgment. Finally, Turner’s motion for extension of time to file notice of appeal is dismissed as moot. 5

James T. Campbell Justice

5 For reasons not apparent from the reco rd, Turner requested an extension of time to file his notice of appeal. Tex R. A pp. P. 26.3. Because Turner’s notice of appeal was filed within thirty days of June 2, it was timely wit hout an extension of time. Tex. R. App. P. 26.1. We have carried Turner’s mo tion for extension of time with the appeal.