## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02 - 09 - 00 444 - CV

GARY REED WALP APPELLANT V. EDDIE C. WILLIAMS APPELLEE

------------ FROM THE 89TH DISTRICT COURT OF WICHITA COUNTY

------------ 

### OPINION

------------ Appellant Gary Reed Walp , an inmate at the James V. Allred Unit of the Texas Department of Criminal Justice, Institutional Di vision (TDCJ) , appeals from the trial court‘s dismissal of his claims against Appellee Eddie C. Williams, senior warden at the Allred Unit

. In this appeal , we consider whether an inmate‘s application for writ of habeas corpus challenging the loss of good

- time credit ma y serve as the basis for a finding that the inmate is a vexatious litigant under section 11.054(1) of the c ivil pr actice and remedies code. We hold that it may2

not. Because we hold that the trial court erred by finding Walp a vexatious litigant, we rever se the trial court‘s order dismissing his claims and remand the

case to the trial court

. In his petition, Walp alleged the following facts. On March 28, 2008, after Walp and other prisoners had been placed on lockdown, Williams authorized the seizure of Walp ‘s radio and night lamp. Walp alleged that Williams had authorized the lockdown as a pretext for seizing Walp ‘s property , that the seizure violated TDCJ‘s lockdown policy , and that the seizure of his property was ―meant
to ca use [him] psychological pain associated with anger, resentment, and hatred towards authority.‖ Williams filed an answer asserting a general denial, various affirmative defenses, and immunity. Williams also filed a motion to declare Walp a vexatious litig ant. A hearing , which Walp attended, was held on Williams‘s motion. T he trial court entered an order granting Williams‘s motion and finding Walp to be a vexatious litigant. Based on that finding, the trial court ordered that Walp furnish security of $1,000 by December 3, 2009, and that ―should [Walp] fail to furnish such security within the time set by this Order, the above referenced and numbered cause is [dismissed].‖ Walp did not furn ish the security. On December 11 , 2009, Wa lp filed his notice of appeal to this court. Walp also filed a motion for reconsideration to file litigation , which t he local administrative judge denied on February 2, 2010.3

In Walp ‘s first of four point s , he argues that the trial court erred by declarin g him a vexatious litigant. Civil practice and remedies code section 11.054(1) allows a trial court to find a plaintiff a vexatious litigant if the defendant establishes two prongs of the statute, one relating to the substance of the plaintiff‘s claims an d one relating to the disposition of previous claims asserted by the plaintiff. Tex. Civ. Prac. & Rem. Code Ann. § 11.054 (Vernon 2002). First, the defendant must show that there is not a reasonable probability that the plaintiff will prevail on his claims against the defendant. Id

. Seco nd, the defendant must show that, in the se ven - year period preceding the date of the motion, the plaintiff has commenced, prosecuted, or maintained at least five litigations , each of which must have been (A) finall y determined adversely to the plaintiff; (B) permitted to remain pending at least two years without having been brought to trial or hearing; or (C) determined by a trial or appellate court to be frivolous or groundless under state or federal laws or rule s of procedure. Id

. The term ―litigations‖ as used in the statute refers only to civil actions. Id

. § 11.001(2) (Vernon 2002). If the trial court finds the plaintiff is a vexatious litigant, it must order the plaintiff to furnish security for the defendant‘s benefit. Id . § 11.055 (Vernon 2002). If the plaintiff fails to furnish security, the trial court must dismiss the litigation. Id. § 11.056 (Vernon 2002). Here, Williams introduced evidence of six previous claims in the seven years immediately preceding the date of Williams ‘s motion. Williams established4

that Walp had filed four civil cases in state court. Williams also presented two exhibits regarding filings in federal court. Exhibit A wa s a copy of a n order f rom the Fifth Circuit dismissing an appeal by Walp for failing to timely fil e a motion for certificate of appealability

. Williams concedes that this appeal was from the denial of habeas relief

. Exhibit B was an order of dismissal and a report and recommendation of dismissal on Walp ‘s application for a writ of habeas corpus challenging a disciplinary proceeding that resulted in ―a loss of good time and a reduction in time

- earning class status.‖ The order state s that Walp was eligible for mandatory supervision, and therefore he presented a legitimate claim for federal habeas relief, but that the application was moot because he had already been released from physical custody on mandatory release. Williams argues that either one of the exhibits establishes the fifth litigation required under the vexacious litigant
statute. See id

. § 11.054

. This court has not addressed whether an application for writ of habeas corpus challenging a loss of good

- time credit may be considered a ―litigation‖ that can be used to satisfy section 11.054(1)

— that is, whether it may be classified as a civil action . The Texas Court of Criminal Appeals has on two previous occasions considered how to classify an application for a writ of habe as corpus under Texas law. In Ex parte R i e ck , the court considered how to characterize an inmate‘s habeas application complaining about the time credit consequences of his parole revocation. 144 S.W.3d 510, 519 (Tex. Crim. App. 2004). Although5

the issue in that case was whether an application for habeas relief can be considered a ―lawsuit‖ for purposes of government code section 498.0045, Tex. Gov‘t Code Ann. § 498.0045 (Vernon Supp. 2010) ( requir ing the forfeiture of an inmate‘s good conduct time if an inmate files a lawsuit that is dismissed as frivolous, but not addressing whether it should be cha racterized as civil or criminal), the court did discuss the trouble with characterizing applications fo r habeas relief

. Rieck , 144 S.W.3d at 515

– 16. The court observed that ―most jurisdictions have traditionally regarded habeas corpus as a civil remedy, even when the relief sought is from confinement in the criminal justice system‖ but that ―courts have s truggled with how to characterize habeas proceedings and have sometimes characterized them as  ̳neither civil nor criminal but rather sui generis .‘‖ Id

. It noted that the United States Supreme Court has acknowledged the characterization of habeas corpus proceedings as civil but has also referred to that label as ― gross and inexact‖ and has stated that ―[e] ssentially, the proceeding is unique.‖ Id. at 516 (citing H arris v. Nelson , 394 U.S. 286, 293

– 94, 89 S. Ct. 1082, 1087 (1969)). The court of criminal appeals also noted that ―Texas has gone further in eschewing the civil label for habeas proceedings arising from crimi nal prosecutions or convictions . S uch proceed ings are categorized as  ̳criminal‘ for jurisdictional purposes and the Texas Rules of Civil Procedure do not ordinarily apply . A rticle 11.07 habeas proceedings are categorized as criminal proceedings by statute.‖ Id

.6

The court ultimately held that a ha beas proceeding under code of criminal procedure article 11.07 is not a ―lawsuit‖ for purposes of government code section 498.0045. Id. at 521. The legislature subsequently modified section 498.0045 so that the term ―lawsuit‖ includes proceedings arising from an application for writ of habeas corpus when the application was dismissed because it was brought for the purpose of abusing judicial resources

. See Tex. Gov‘t Code Ann. § 498.0045(a), (a

- 1). But although such an application for writ of habeas cor pus is now considered a ― lawsuit ‖ for purposes of section 498.0045, id ., the legislature has not expressly characterized it as civil in nature, and neither has the court of criminal appeals. Th e court of criminal appeals has also held that chapter 11 of the civil practice and remedies code does not apply to an application for writ of habeas corpus under article 11.07. See Aranda v. Dist. Clerk , 207 S.W.3d 785, 786 (Tex. Crim. App. 2006). In Aranda , t he court held that a person found to be a vexatious litigant under that chapter is not prohibited from filing an application for an article 11.07 writ of habeas corpus because (1) chapter 11 only prohibits the filing of new civil actions and (2) an applica tion for habeas relief under article 11.07 is not a civil action. Id

. The court referenced R i e ck and noted that ―we have said that when a person is confined for violating a criminal statute and files an application for a writ of habeas corpus challenging his confinement, the proceeding is criminal, not civil, in nature .‖ Id

. Thus, under Texas law, an application for habeas relief under article 11.07 is not a civil action that an inmate7

may be prohibited from filing if that inmate has been declared a vex atious litigant under section 11.054. We therefore conclude that if an article 11.07 habeas proceeding is not a civil action that an inmate would be prohibited from filing if he has been found to be a vexatious litigant under chapter 11, then neither can it be a civil action for purposes of finding the inmate to be a vexatiou s litigant in the first place. We further conclude th at if an application for habeas relief under federal law challenges an inmate‘s confinement, th en the court of criminal appeal s ‘s characterization of the proceedings as criminal still applies

. 1 In this case, two of the previous filings relied on by Wil l i ams (Exhibit A and Exhibit B) were applications for a writ of habeas corpus. The record does not show the substance of Walp‘s claim in Exhibit A

. The trial court therefore could not have determine d that the filing was a civil action filed by Walp

. Exhibit B consists of a judgment and a report and recommendation of dismissal on a claim by Walp challenging his loss of good

- time credits and, thus, challenging the duration of his confinement. See Preiser v. Rodriguez , 411 U.S. 475, 500, 93 S. Ct. 1827, 1841 (1973) (holding that an inmate who challenges a disciplinary proceeding that resulted in the loss of good

- time credit is ―atta ck ing the very

1 Further supporting our conclusion that applications for habeas relief challenging an inmate‘s confinement do not fall with in the purview of section 11.054 are the already

- existing schemes for addressing inmates who repeatedly file such applications. See Tex. Code Crim. Proc. A rt s . 11.07, § 4(a), 11.071, § 5(a) (Vernon 2005); see also Ex parte Barber , 879 S.W.2d 889, 893 n.1 (Tex. Crim. App. 1994) (discussing the abuse of writ doctrine).8

duration of [his] physical confinement itself‖). We hold that this filing was criminal in nature and therefo re cannot satisfy the section 11.054(1) criteria

. Williams argues that in the case shown in Exhibit B , Walp also asserted a claim for damages based on retaliatory use of prison procedures and that th is claim had been dismissed as frivolous. But the appellate record does not contain any reference to such a claim. See Tex. R. App. P. 34.1 (providing that the appellate record consists of the clerk‘s record and, when necessary, the reporter‘s record). Williams attempted to supplement the appellate reco rd to include such evidence, but because that evidence was not produced in the trial court, we cannot consider it in reviewing the trial court ‘s finding

. See Disco Mach. of Liberal Co. v. Payton , 900 S.W.2d 71, 74

– 75 (Tex. App.

— Amarillo 1995, no writ) (―L eave to supplement merely encompasses permission to augment the appellate record with the existing trial court record; it does not allow the creation of a new trial court record.‖); see also Willmann v. City of San Antonio , 123 S.W.3d 469, 482 n.6 (Tex. Ap p. — San Antonio 2003, pet. denied) (refusing to consider evidence that was not presented as evidence for the trial court to consider); Clark v. Noyes , 871 S.W.2d 508, 520 n.5 (Tex. App.

— Dallas 1994, no writ) (stating that a court of appeals considers only e vidence tendered or admitted at the time of the hearing and that ―[i]f we were to consider evidence for the first time, never presented to the trial court, we would in effect be converting this Court into a court of original jurisdiction‖).9

Because the rec ord before the trial court showed only four previous civil actions brought by Walp, Williams did not establish that Walp met the criteria of a vexatious litigant. See Tex. Civ. Prac. & Rem. Code Ann. § 11.054(1). Applying the appropriate standard of revi ew, s ee Leonard v. Abbott , 171 S.W.3d 451, 458

– 59 (Tex. App.

— Austin 2005, pet. denied) , w e hold that the trial court abused its discretion by granting Williams‘s motion. Accordingly, we sustain Walp ‘s first point

. In Walp‘s second point, he asserts that the trial court erred by excluding his evidence. From Walp‘s description of his exhibits, all of the evidence that he wished to offer related to whether there was no reasonable probability that he would prevail on his claims against Williams. Because we have sustained Walp‘s first point, we need not reach this issue. See Tex. R. App. P. 47.1. In Walp ‘s third point, he contends that the trial court erred by dismissing his case. The trial court‘s order requiring Walp to post security was based on the trial court‘s finding that Walp was a vexatious litigant. Because the trial court abused its discretion by finding Walp a vexatious litigant, the trial court also abused its discretion by ordering Walp to post the securi ty required after such a finding and by dismissing Walp ‘s case for failure to post that security. We sustain Walp ‘s third point. In Walp ‘s fourth and final point, he argues that the local administrative judge abused its discretion by denying his motion for reconsideration to file litigation

. Although the order denying the motion appears in the appellate record,10

the motion itself does not. A document that appears to be such a motion (bearing no indication that it was ever filed) is attached to Walp‘s supplemental brief, but we may not consider it. See In re A.D.A. , 287 S.W.3d 382, 389 (Tex. App.

— Texarkana 2009, no pet.) (noting that courts of appeals may not consider documents that are attached as appendices to briefs that are not part of the appella te record); Randle v. Wilson , 26 S.W.3d 513, 516 n.1 (Tex. App.

— Amarillo 2000, no pet.) (same). Assuming that Walp‘s motion related to his suit in this case, b ecause we have already held that the trial court abused its discretion by finding Walp a vexatio us litigant and dismissing his claim, we do not need to reach this point. See Tex. R. App. P. 47.1. Having sustained Walp‘s dispositive points, we reverse the trial court‘s order finding Walp a vexatious litigant and dismissing his claim for failure to post security, and we remand this cause to the trial court for further proceedings.

LEE GABRIEL JUSTICE PANEL: DAUPHINOT, WALKER, AND GABRIEL, JJ. DAUPHINOT, J., filed a concurring opinion. DELIVERED: December 16, 201011 

## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02 - 09 - 00444 - CV

GARY REED WALP APPELLANT V. EDDIE C. WILLIAMS APPELLEE

---------- FROM THE 89TH DISTRICT COURT OF WICHITA COUNTY

---------- 

### CONCURRING OPINION

---------- The majority states that ―if an application for habeas relief under federal law challenges an inmate‘s confinement, then the court of criminal appeals‘s characterization of the proceedings as criminal still applies.‖ 2 I agree, but I write separately because the majority does not but should expressly hold that Walp‘s habeas action in this case was a challenge to hi s confinement.

2 Majority op. at 7.12

Under Texas law, with limited exception, the State must release an inmate to mandatory supervision when his time served plus good conduct time equals his sentence. 3 The court of criminal appeals has granted habeas relief under article 11.07 when an inmate who was entitled to immediate release under mandatory supervision was still confined despite his right to release. 4 But the court of criminal appeals apparently sees a difference between (1) a claim by an inmate entitled to immediate mandatory release that he is being illegally detained in violation of the mandatory supervision provision , and (2) an inmate‘s challenge to a disciplinary proceeding that resulted in the loss of good

time credit, which would then result in the inmate at some point in the future being detained beyond the point at which he would h ave been entitled to mandatory supervision had good

- time credit not been forfeited. That court has indicated that a challenge to the loss of good

- time credit is a challenge to the condition, rather than the fact, of the inmate‘s confinement. 5

3 Tex. Gov‘t Code Ann. § 508.147 (Vernon 2004) (―[A] parole panel shall order th e release of an inmate who is not on parole to mandatory supervision when the actual calendar time the inmate has served plus any accrued good conduct time equals the term to which the inmate was sentenced.‖), § 508.149 (Vernon 2004) (setting out circumsta nces in which an inmate is not eligible for mandatory supervision).

4 See , e.g., Ex parte McGee , 962 S.W.2d 49, 49 (Tex. Crim. App. 1998).

5 See Ex parte Palomo , 759 S.W.2d 671, 674 (Tex. Crim. App. 1988) (noting that the court of criminal appeals does not consider complaints about disciplinary proceedings or the loss of good

- time credit, which relate to the terms and conditions of an inmate‘s imprisonment , by wa y of a writ of habeas corpus)

.13

The United States Supreme Court, on the other hand, has held that an inmate who challenges a disciplinary proceeding that resulted in the loss of good

time credit, even when the inmate is seeking only speedier (rather than immediate) release, is ―attacking the very duration of [his] physical confinement itself.‖ 6 Thus, the U.S. Supreme Court would characterize Walp‘s habeas action as challenging his confinement. I agree with the characterization of the U.S. Supreme Court. Furthermore, although the court of crimin al appeals would not grant habeas relief in such cases, I agree with the majority‘s implicit holding that, for purposes of classifying such an action as civil or criminal, that court would also consider such an action as complaining about the inmate‘s conf inement. Although an inmate in such a situation would be challenging future rather than current confinement, such a complaint cannot logically be classified as merely challenging prison conditions. This is so even if the inmate challenges the loss of
goo d

- time credit by way of attacking the prison‘s disciplinary proceedings that resulted in the credit loss. In this case, Walp appears to have challenged his continued confinement, and , therefore , he challenge d the fact of his confinement. If the majority does not wish to go so far as to hold that a challenge to prospective confinement is a criminal proceeding under Texas law, it could still expressly hold that a challenge to the loss of good

- time credit that would entitle

6 Preiser v. Rodriguez , 411 U.S. 475, 487

– 88, 93 S. Ct. 1827, 1835 (1973).14

the inmate to immediate release is a criminal proceeding. And because it was not clear from the evidence that Walp did not seek immediate release, Williams did not meet his burden to show that Walp‘s habeas action was a civil proceeding. But either way, this court should expressly stat e that Walp‘s complaint about prison disciplinary procedures and the loss of good

- time credit

was a challenge to his confi nement. I also write to address Walp‘s second issue, in which he asserts that the trial court erred by excluding his evidence. At t he hearing on Williams‘s motion, Walp opened his argument by stating, ―I would like to begin with introducing Exhibit A,‖ his answers to Williams‘ s interrogatories. He then described ten other exhibits he had brought with him, all relating to whether his claims had merit. Walp did not offer the documents to Williams for inspection or ask the court reporter to mark them as exhibits. Near the end of the hearing, the following exchange occurred:

THE COURT: Anything further? [Attorney for Williams]: No, Y our Honor. THE COURT: Okay. [Walp]: What about my exhibits? THE REPORTER: They were never admitted. [Walp]: Well, I need to admit them. THE COURT: Well, they weren‘t . . . offered.15 [Walp]: So you‘re going to get me on a technical? I didn‘t know how to offer the evidence. I said I had some exhibits. THE COURT: You didn‘t make the offer to allow your opponent the opportunity to either object or not object to them. [Walp]: Well, I have no knowledge of

— of those

— I don‘t have no knowledge of

— of the formality of doing that. I sat here and said I had some exhibits that I needed to enter and I read them off. Now you‘re going to deny my exhibits on a technicality? THE COURT: No, they were not offered. On remand, if Williams files another motion to declare Walp a vexatious litigant, the trial court will be required to conduct a hearing before ruling on the motion. 7 If Walp is present at that hearing, 8 he will almost certainly attempt, once again, to offer evidence to rebut Williams‘s argum ents that there is no reasonable probability that he would prevail on his claims. Walp‘s ignorance of the usual procedures that attorneys use for offering evidence will likely result in frustration from all sides, and, if the outcome of the hearing is unf avorable to him, an appeal raising this same issue. Judicial economy therefore suggests that we should address this sure

- to

- be

- raised

- again issue now rather than spend further judicial resources addressing it later. Furthermore, Walp‘s ignorance of evide ntiary procedure will divert the trial court‘s and the parties‘ attentions away from where

7 See Tex. Civ. Prac. & Rem. Code Ann. § 11.053 (Vernon 2002) (requiring a hearing before ruling on a motion to declare a party a vexatious litigant).

8 See Garrett v. Macha , No. 0 2

- 09

- 443

- CV, 2010 WL 3432826 , at *3 (Tex. App.

— Fort Worth Aug. 31, 2010, no pet.) (mem. op.) (noting that an inmate does not have an absolute right to be present at a hearing on a motion to declare him a vexatious litigant)

.16

it belongs

— on the merits

— and focus it on arguments about what magic words a party must use to have the trial court consider the admissibility of evidence. In the in terest of judicial economy, and to eliminate one unnecessary ground for contention on remand, I note that generally, a party wishing to place a document into evidence should produce the document and in some way signify that he is offering it into evidence, allow the opposing party to inspect the evidence and make any objections to its admission, have the evidence marked as an exhibit by the court reporter, and hand it to the trial judge. 9 Though helpful, there is no need for a party wishing to place a docu ment into evidence to specifically use the word ―offer.‖ 10 Because I agree with the majority‘s holding, I respectfully concur.

LEE ANN DAUPHINOT JUSTICE
DELIVERED: December 16, 2010

9 Se e Guetersloh v. C. I. T. Corp. , 451 S.W.2d 759, 760 (Tex. Civ. App.

— Amarillo 1970, writ ref‘d n.r.e.).

10 Id.