TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-19-00862-CV

Gerald Allen Perry, Appellant

v.

The State of Texas, Appellee

FROM THE 353RD DISTRICT COURT OF TRAVIS COUNTY

NO. D-1-GN-17-002386, HONORABLE TODD A. BLOMERTH, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N 

Gerald Allen Perry, an inmate acting pro se, appeals the district court’s August 

27, 2019 final order dismissing his suit to declare his aggravated-robbery conviction void and 

adjudicating him a vexatious litigant. See Tex. Civ. Prac. & Rem. Code §§ 11.054 (authorizing 

trial court to find plaintiff vexatious litigant if statutory criteria are met), .101(c) (permitting 

appeal from prefiling order designating person vexatious litigant), 14.003(a)(2) (authorizing trial

court to dismiss inmate’s frivolous claim in civil suit). Perry contends that the Travis County 

district court erred because it had jurisdiction to declare his aggravated-robbery conviction in a 

Harris County district court void; that the State’s vexatious-litigant motion was untimely filed;

and that his conviction should have been declared “presumptively void” as a sanction for the 

State’s alleged failure to produce relevant records in support of its vexatious-litigant motion. We 

will modify the district court’s final order and as modified, affirm it.
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BACKGROUND

Perry sued the State in a Travis County district court on May 31, 2017, alleging 

wrongful imprisonment and seeking damages. See id. § 103.001. In his petition, Perry contends

that his 1993 final conviction by a jury in Harris County for aggravated robbery, affirmed by the 

First Court of Appeals, is void because it was based on an indictment resulting from a perjured 

witness statement made to police by Paul Patrick Carrier. See Perry v. State, No. 01-93-00207-

CR, 1994 Tex. App. LEXIS 380, at *1 n.1 (Tex. App.—Houston [1st Dist.] Feb. 24, 1994, no 

pet.) (not designated for publication) (noting that affidavit for Perry’s arrest in Harris County 

district court cause number 607,922 was based on sworn written statements from three witnesses,

including Carrier, and that “Carrier changed parts of his story and confessed to committing the 

murder” in his second statement to police). Carrier’s first statement to police identified 

individuals involved in the robbery and implicated Perry as the shooter, reporting

[t]hat on 7-28-91, [Pat Carrier] saw a person he knows by sight and by name as 

Ruben the paperboy, get out of his truck and walk up to [Perry], . . . as [Perry] 

was standing in the street with several other males, and asked [Perry] for a 

cigarette. Pat further told affiant that [Perry] told Pat that “they were going to 

jack him.” Pat told affiant that he felt that [Perry] meant they were going to rob 

Ruben. Pat told affiant that he saw a person he knows by sight and by name as 

Money, . . . sneaking around behind Ruben. Pat stated that he saw Money grab 

Ruben from behind and [Perry] grabbed a gun from the waistband of Ruben and 

both then beat Ruben to the ground. Pat stated that he saw both Money and 

[Perry] going through Ruben’s pockets. Pat also stated that he saw [Perry] take 

the pistol and shoot Ruben one time in the mouth during the robbery. Pat stated 

that he also saw both Money and [Perry] run away after robbing Ruben and 

[Perry] shooting him. Pat also stated that he helped Alfredo Almedia load Ruben 

into Ruben’s vehicle and saw Mr. Almedia drive Ruben away to the hospital.

Id. at *2-3. Perry’s petition complained of Carrier’s statement “that he witnessed [Perry] shoot 

and kill Ruben Grajeda and rob him in Cause No. 607922 and that he was an innocent 
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bystander.” Perry contended that his indictment was void because it stemmed from Carrier’s 

false statement and that “it logically follows that a conviction based on a void indictment, is a 

nullity, [and] therefore not a final conviction.”

On March 16, 2018, the State answered Perry’s civil suit by filing a combined 

plea to the jurisdiction and motion to dismiss. Perry filed an amended petition the next month. 

On July 11, 2019, the State filed another motion to dismiss and plea to the jurisdiction, this time 

adding a motion to declare Perry a vexatious litigant. See Tex. Civ. Prac. & Rem. Code 

§ 11.054. 

The district court held a hearing on the State’s motions. During the hearing, Perry 

acknowledged his history of civil litigation and the dismissal of his lawsuits. Relying on a 

default-judgment case and other civil cases that did not involve collateral attacks on final 

criminal convictions, Perry said that his Travis County suit sought postconviction relief for his 

Harris County aggravated-robbery conviction because he “didn’t actually do the shooting” and 

his conviction was “null and void”:

Court: Where does this Court in Travis County have the jurisdiction for the relief 

that you are asking for, sir?

Perry: They say a void conviction can be attacked anytime, anywhere, in any 

court.

Court: Okay.

Perry: A party may collaterally attack a judgment of a court of general 

jurisdiction in another court of equal jurisdiction if the underlying judgment is 

void. That’s Armentor v. Kern . . . 178 S.W. 3d, Page 147.

. . . .

Court: Let me ask you a question: Is your lawsuit just asking for money damages 

in some of this?
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Perry: No. I’m also trying on [sic] get out of prison. I’m also asking for, you 

know, release. The only ground which I can receive that kind of relief is it’s got 

to be a void judgment, you know. . . . While the writ habeas corpus may be 

granted by any district judge, the hearing thereunder must be in the county where

the indictment was filed.

Court: Well, then why are we here, sir? . . . Sir?

Perry: Yes.

Court: Did you just hear what you just said about the county where the court is, 

sir?

Perry: Yes.

Court: This is Travis County here and that was in Harris County, was it not?

Perry: Yes, I want [to] understand that, sir.

Court: Okay. Then how do you get around that, sir?

Perry: Well, you know if you can’t grant habeas corpus relief, well, you know, 

I’ll have to go back.

The State pointed out that a postconviction complaint is presented through a writ of habeas 

corpus and not a civil suit filed in Travis County:

First of all, as the Court briefly alluded to, Mr. Perry was convicted of a crime in 

the 1990s, and the conviction has been upheld by the court of appeals and a 

petition for discretionary review was denied by the court of criminal appeals. The 

only remedy to challenge a criminal conviction, even if Mr. Perry is right, that the

conviction is not sound and should be set aside, the only remedy for that—the 

exclusive remedy, is by Chapter 11 of the code of criminal procedure, which is

the habeas corpus writ. Mr. Perry is very familiar with that writ, because in the 

14 prior litigations, about a third of those cases were him exercising his petition 

for writ of habeas corpus. They were all denied. This Court is not sitting here 

today as a habeas court.

The State also noted that Perry had previously sought the identical relief requested in his Travis 

County suit. See In re Perry, No. 01-16-00567-CR, 2016 Tex. App. LEXIS 8105, at *1-2 (Tex. 
5

App.—Houston [1st Dist.] 2016, orig. proceeding) (dismissing for want of jurisdiction Perry’s 

petition for writ of mandamus challenging his conviction); Perry v. State, No. 01-14-00577-CR, 

2014 Tex. App. LEXIS 12034, at *2-3 (Tex. App.—Houston [1st Dist.] Nov. 4, 2014, no pet.)

(mem. op., not designated for publication) (dismissing for want of jurisdiction Perry’s appeal 

seeking recall of First Court of Appeals’s mandate affirming his felony conviction for aggravated 

robbery and noting that relief Perry sought could be granted only by postconviction writ of 

habeas corpus under article 11.07 of Code of Criminal Procedure and that Court of Criminal 

Appeals was court of proper jurisdiction).

At the conclusion of the hearing, the district court stated that it lacked jurisdiction 

to hear the matter, granted the State’s dismissal “on all bases,” and declared Perry a vexatious 

litigant. In its written order, the district court found that Perry’s “action is frivolous” and that his 

“allegations have no arguable basis in law and are barred by sovereign immunity, limitations, 

and issue preclusion” and granted the State’s motion to dismiss. This appeal followed.

DISCUSSION

No jurisdiction over Perry’s claim for postconviction relief

In its combined plea to the jurisdiction and motion to dismiss, the State 

challenged the district court’s subject-matter jurisdiction and requested dismissal of Perry’s suit 

under subsection 14.003(b)(2) of the Texas Civil Practice and Remedies Code because it had “no 

basis in law.” See Tex. Civ. Prac. & Rem. Code § 14.003(b)(2) (authorizing trial court to 

consider whether claim has “no arguable basis in law or fact” in determining whether a claim is 

frivolous and subject to dismissal under subsection 14.003(a)(2)); Perez v. City of Fort Worth, 

No. 03-16-00545-CV, 2017 Tex. App. LEXIS 167, at *8 (Tex. App.—Austin Jan. 11, 2017, no 
6

pet.) (noting that “claim is considered to have no basis in law when either the legal theory on 

which it is based is indisputably meritless or the factual allegations on which it is based are 

wholly incredible or irrational” (citing Nabelek v. District Att’y of Harris Cty., 290 S.W.3d 222, 

228 (Tex. App.—Houston [14th Dist.] 2005, pet. denied))). Specifically, the State contended 

that Perry failed to plead any facts that would bring his claim within a statute that unambiguously 

waived the State’s sovereign immunity, see Tex. Gov’t Code § 311.034, and that the State’s 

immunity was not waived for Perry’s requested declaratory relief as to his wrongfulimprisonment claim. See Texas Parks & Wildlife Dep’t v. Sawyer Tr., 354 S.W.3d 384, 388 

(Tex. 2011) (noting that “a litigant’s couching its requested relief in terms of declaratory relief 

does not alter the underlying nature of the suit” and that “sovereign immunity will bar an 

otherwise proper DJA claim that has the effect of establishing a right to relief against the State 

for which the Legislature has not waived sovereign immunity”). Perry responded that the Travis 

County district court did have jurisdiction to declare void his aggravated-robbery conviction 

rendered by a Harris County district court and erred by dismissing his suit. 

We review a trial court’s ruling on a plea to the jurisdiction de novo. Houston 

Belt & Terminal Ry. v. City of Houston, 487 S.W.3d 154, 160 (Tex. 2016). When a plea to the 

jurisdiction “challenges the pleadings, we determine if the pleader has alleged facts that 

affirmatively demonstrate the court’s jurisdiction to hear the cause.” Texas Dep’t of Crim. Just. 

v. Rangel, 595 S.W.3d 198, 205 (Tex. 2020) (quoting Texas Dep’t of Parks & Wildlife v. 

Miranda, 133 S.W.3d 217, 226 (Tex. 2004)). “[W]e liberally construe the pleadings, taking all 

factual assertions as true and looking to [the plaintiff’s] intent” in determining whether the 

plaintiff has met that burden. Id. (quoting City of Ingleside v. City of Corpus Christi, 469 

S.W.3d 589, 590 (Tex. 2015)). “[W]hen a plea to the jurisdiction challenges the existence of 
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jurisdictional facts, we look beyond the pleadings and consider evidence submitted by the parties 

‘when necessary to resolve the jurisdictional issues raised,’ even if the evidence implicates both 

the court’s jurisdiction and the merits of a claim.” Id. (quoting Miranda, 133 S.W.3d at 227). 

“‘[I]f the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional

issue,’ a court rules ‘on the plea to the jurisdiction as a matter of law.’” Id. (quoting Miranda, 

133 S.W.3d at 228). Similarly, we review de novo whether a plaintiff’s claims have no basis in 

law such that dismissal on that ground is authorized. Perez, 2017 Tex. App. LEXIS 167, at *6. 

“We examine the claims asserted and the relief requested to determine whether the petition stated 

a cause of action that could authorize relief.” Id.

Here, Perry’s amended complaint alleges that “the complaint and indictment for 

aggravated robbery is void as it is based on material perjury of Patrick Paul Carrier,” who stated 

“that he witnessed [Perry] shoot and kill Ruben Grajeda and rob him.” Perry’s brief states, “This 

is a collateral attack in another district court in Texas where appellant is attempting to avoid the 

effect of the finding of guilty and forty five year sentence for aggravated robbery, Art. 29.03 of 

the Texas Penal Code because it is completely void.” Thus, Perry sought postconviction relief in 

Travis County district court from his final felony conviction by a Harris County jury for 

aggravated robbery. See Perry, 1994 Tex. App. LEXIS 380, at *9 (affirming Perry’s aggravatedrobbery conviction in Harris County trial court cause number 607,922). 

Perry sought postconviction relief from the Travis County district court through 

his civil suit for wrongful imprisonment, but such relief is available only by application for writ

of habeas corpus. Article 11.07 of the Texas Code of Criminal Procedure “provides the 

exclusive means to challenge a final felony conviction.” Board of Pardons & Paroles ex rel. 

Keene v. Court of Appeals for Eighth Dist., 910 S.W.2d 481, 483 (Tex. Crim. App. 1995). 
8

Article 11.07 specifies that it “establishes the procedures for an application for writ of habeas 

corpus in which the applicant seeks relief from a felony judgment imposing a penalty other than 

death.” Tex. Code Crim. Proc. art. 11.07, § 1. Jurisdiction to grant postconviction habeas corpus 

relief on a final felony conviction rests exclusively with the Texas Court of Criminal Appeals.

Keene, 910 S.W.2d at 483; see Davis v. State, No. 03-16-00852-CR, 2017 Tex. App. LEXIS 295, 

at *1 (Tex. App.—Austin Jan. 13, 2017, no pet.) (mem. op., not designated for publication)

(noting that this Court “lacks jurisdiction to grant habeas corpus relief from final felony 

convictions.”).

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“Any other proceeding shall be void and of no force and effect in discharging 

the prisoner.” Keene, 910 S.W.2d at 483 (citing Tex. Code Crim. Proc. art. 11.07, § 3).

Moreover, “[a] party may not predicate relief in a civil case based on a collateral 

attack to a final criminal conviction.” Cooper v. Trent, 551 S.W.3d 325, 337 (Tex. App.—

Houston [14th Dist.] 2018, pet. denied). A convicted criminal defendant cannot bring a civil 

action for damages that “necessarily require[s] the plaintiff to prove the unlawfulness of his 

conviction or confinement,” unless he can demonstrate that his conviction or sentence has 

already been reversed on direct appeal, expunged by executive order, or declared invalid in a 

collateral proceeding. Id.; see $60,427.11 U.S. Currency v. State, No. 02-18-00165-CV, 2019 

Tex. App. LEXIS 5935, at *11-12 (Tex. App.—Fort Worth July 11, 2019, no pet.) (mem. op.)

(concluding that inmate could not seek relief by attacking his money-laundering conviction 

through appeal of civil matter). Because Perry’s challenge to the validity of his final felony 

1

 Subsection 3(b) of article 11.07 states that “[a]n application for writ of habeas corpus 

filed after final conviction in a felony case, other than a case in which the death penalty is 

imposed, must be filed with the clerk of the court in which the conviction being challenged was 

obtained, and the clerk shall assign the application to that court. When the application is 

received by that court, a writ of habeas corpus, returnable to the Court of Criminal Appeals, shall 

issue by operation of law.” Tex. Code Crim. Proc. art. 11.07 § 3(b).
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conviction for aggravated robbery is governed by article 11.07, a writ of habeas corpus—and not 

a civil suit—provides the exclusive means to challenge his final felony conviction. See Keene, 

910 S.W.2d at 483. And because jurisdiction for such postconviction relief rests with the Court 

of Criminal Appeals, the district court had no jurisdiction over Perry’s claim for that relief and 

did not err by dismissing his suit against the State. See Perez, 2017 Tex. App. LEXIS 167, at *8

(concluding that trial court did not have jurisdiction to grant inmate relief requested in his 

petition, which was available only through postconviction application for habeas corpus, and that 

trial court did not abuse its discretion by concluding that inmate’s claims had no arguable basis 

in law and dismissing his claims as frivolous).

Similarly, Perry failed to show that the district court erred by dismissing his 

wrongful-imprisonment claim. Perry filed suit against the State for compensatory damages 

under section 103.001 of the Civil Practice and Remedies Code seeking “a damages hearing for 

unlawful confinement of 28 years and continuing injuries.” Subsection 103.001(a) provides that 

a person is entitled to compensation if:

(1) The person has served in whole or in part a sentence in prison under the 

laws of this state; and

(2) the person:

(A) has received a full pardon on the basis of innocence for the crime for 

which the person was sentenced;

(B) has been granted relief in accordance with a writ of habeas corpus that 

is based on a court finding or determination that the person is actually 

innocent of the crime for which the person was sentenced; or

(C) has been granted relief in accordance with a writ of habeas corpus and:

(i) the state district court in which the charge against the person was

pending has entered an order dismissing the charge; and
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(ii) the district court’s dismissal order is based on a motion to 

dismiss in which the state’s attorney states that no credible 

evidence exists that inculpates the defendant and, either in the 

motion or in an affidavit, the state’s attorney states that the 

state’s attorney believes that the defendant is actually innocent of 

the crime for which the person was sentenced.

Tex. Civ. Prac. & Rem. Code § 103.001(a). 

Here, Perry has not shown that he received a pardon on the basis of innocence for 

the crime of aggravated robbery, that he was granted habeas corpus relief, that there has been any 

court determination that he is actually innocent of the crime of aggravated robbery, or that the 

180th District Court of Harris County entered an order dismissing the charge of aggravated 

robbery against him. Thus, Perry failed to show any entitlement to damages for wrongful 

imprisonment under the express provisions of section 103.001. See id. 

Perry’s requested declaratory relief as to his claim of wrongful imprisonment was 

an attempt to establish a right to relief against the State for which the Legislature has not waived 

sovereign immunity. See Sawyer Tr., 354 S.W.3d at 388. Perry’s wrongful-imprisonment claim 

is indisputably meritless and has no arguable basis in law. See Perez, 2017 Tex. App. LEXIS 

167, at *6. Because Perry’s claim has “no arguable basis in law,” it was subject to dismissal as a 

frivolous claim. See Tex. Civ. Prac. & Rem. Code § 14.003(a)(2), (b)(2). Accordingly, we

overrule Perry’s issue contending that the district court erred by dismissing his suit because it 

had jurisdiction to declare his conviction void or to award damages on his wrongfulimprisonment claim.
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State’s vexatious-litigant motion was untimely

Perry further contends that the State’s motion to declare him a vexatious litigant

was untimely because it was not filed within ninety days of the filing of the State’s original 

answer. Perry requests revision or reversal of the district court’s final order declaring him a 

vexatious litigant. The State acknowledges the untimeliness of its motion and the error of 

Perry’s designation as a vexatious litigant. 

Section 11.051 of the Texas Civil Practice and Remedies Code provides:

In a litigation in this state, the defendant may, on or before the 90th day after the 

date the defendant files the original answer or makes a special appearance, move 

the court for an order:

(1) determining that the plaintiff is a vexatious litigant; and

(2) requiring the plaintiff to furnish security.

Id. § 11.051; see Brown v. Texas State Bd. of Nurse Exam’rs, No. 03-05-00508-CV, 2007 Tex. 

App. LEXIS 8276, at *13 (Tex. App.—Austin Oct. 18, 2007, no pet.) (mem. op.) (“The plain 

language of section 11.051 simply provides a deadline after which defendants may no longer file

vexatious-litigant motions.”). Texas cases have concluded that a plaintiff may not be declared a 

vexatious litigant on the defendant’s motion when the defendant fails to file that motion within 

ninety days of its original answer. See Dishner v. Huitt-Zollars, Inc., 162 S.W.3d 370, 377 (Tex. 

App.—Dallas 2005, no pet.) (concluding that vexatious-litigant declaration sought as part of 

defendant’s summary-judgment motion and filed after expiration of statutory 90-day period was 

untimely and that “[i]t was, therefore, error for the trial court to grant relief under that 

circumstance”); see also In re Grossnickle, 115 S.W.3d 238, 252 (Tex. App.—Texarkana 2003, 

no pet.) (concluding that trial court did not err by declining to find that plaintiff was vexatious
12

litigant because “the ‘vexatious-litigant statute’ applies only when [motion is] filed within ninety 

days after the date on which a defendant files his or her original answer”). Here, as we have 

noted, the State filed its original answer as part of its motion to dismiss and plea to the 

jurisdiction on March 16, 2018. Thus, the statutory ninety-day deadline for the State’s filing of a 

motion to declare Perry a vexatious litigant was June 14, 2018. See Tex. Civ. Prac. & Rem. 

Code § 11.051. The State did not file its motion to declare Perry a vexatious litigant until July 

11, 2019. Because the State failed to file its motion seeking to declare Perry a vexatious litigant 

within ninety days of filing its original answer, we sustain Perry’s issue complaining of the 

vexatious-litigant order issued on the State’s untimely motion and modify the order to remove

the district court’s adjudication of Perry as a vexatious litigant. See id.; Dishner, 162 S.W.3d at 

377 (making similar modification to judgment declaring plaintiff vexatious litigant on

defendant’s untimely motion).

Because the district court lacked jurisdiction over Perry’s postconviction 

complaint collaterally attacking his 1993 aggravated robbery conviction and because the district 

court’s final order is modified to remove the vexatious-litigant adjudication, we need not address 

Perry’s remaining contention that his conviction should be declared “presumptively void” as a 

sanction for the State’s alleged failure to produce relevant records in support of its motion to 

declare Perry a vexatious litigant.
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CONCLUSION

We modify the district court’s August 27, 2019 final order to remove the 

adjudication of Perry as a vexatious litigant and, as modified, affirm the order.

__________________________________________

Gisela D. Triana, Justice

Before Justices Goodwin, Triana, and Smith

Modified and, as Modified, Affirmed

Filed: February 11, 2021