COURT OF A PPEAL S EI GHTH D I STRI CT OF TEX AS ELPASO, TEXAS

J AMES L EE SWEED, Appellant,

v. J AY L . NYE a

nd TEXAS EQUA L ACCESS TO JUS TI CE FOUN DATI ON, Appellee

. § § § § § § No. 08-08-00095- CV

Appea l from 210th District Court of El Paso County , Texas (TC # 2007-2271)

O P I N I O N
J ames L ee Sweed, pro se, appeals a dismiss al orde r d eclaring him a vex atious litigant and requiring that he post se curity as a prec ondition to any further litigation. Sweed bring s four issues for r eview. F or the re asons that follow, we aff irm.
F ACTUAL SUMMA RY Construing his pleading s broadly , Sweed filed suit for conver sion on May 14, 2007, naming attorney J ay L

. Ny e and the Texas Equal Acc ess to J ustice Founda tion (TEAJF) as defe ndants. He alleg ed that in A

pril 2005, Ny e improperly conver ted Sweed’ s persona l funds and that Sweed was entitled to both the principal and interest pursuant to Article 1, Section 17 of the Texas Constit ution and the Fifth Amendment of the United States Constit ution. He further alleg ed that TEAJF “took” the ea rned inter est for public use without compensating him. Although Ny e now prac tices wit h the office of the El Paso Public Def ender , at the time of the events in issue, he repr esente d Sweed in a persona l injury lawsuit ag ainst El Paso County

. Ny e settled the lawsuit for $5,000 and deposited the proce eds in his interest-be aring I OL TA trust acc ountsince Sweed was incar cer ated. No funds wer e disbursed until Sweed was rele ased from prison. I n

his answe r, Ny e alleg ed that the only money he had withdrawn for his own benef it was his one-third conting ent fee

. I n September 2005, Sweed filed a g rieva nce and the State Ba

r Grieva nce Commi ttee summarily

dismiss ed the c omplaint.

P ROCEDURAL SUMM ARY
I n his petition, Sweed alleg ed that TEAJ F “may be serve d with proce ss by serving the Attorney s Gene ral.” Service of proce ss was attempted by cer tified mail upon th e Of

fi ce o f the Attorney Gene ral. A return rec eipt, signe d only by the di strict cler k, was placed in the court file. Subsequently , the Attorney Gene ral filed an “Advisory to the Court of Absenc e of J urisdiction” in which it articula ted that TEAJF was a state ag ency such that citation must be serve d on the Secre tary of State or upon the administrative head of the g overnme ntal unit being sued as require d by Section 101.102 (c) of the Te x as Civil P rac tice and Re medies Code. Sweed filed his “F irst Motion for Summary J udg ment” arg uing that service upon t h e Attorney Gene ral was adequa te s ervic e of proce ss upon TEAJF. Ny e filed a motion for summ ary judgme nt predic ated on the statute of limit ations and a motion to decla re Sweed a vexatious litigant.
On October 3, 2007, the court conducte d a hear ing on all of these motions. T h e court declined to addre ss Ny e’s motion for s u m m ary judgme nt conce rning the statute of limit ations; it denied Sweed’ s motion for summary judgme nt; it took judicial notice that the Attorney Gene ral was
not the proper party for service of process upon TEAJF; it found t hat TEAJ F had not been served with proce ss; and it found that Sweed is a vexatious litigant. On Fe bruar y 20, 2 0 0 8 , t h e court dismiss ed the lawsuit with prejudice , decla ring Sweed a vexatious litigant and requiring secur ity of $5,000 as a pr econdition to any further litigation. This appea l follows.
VEXATIOUS LI TIGANTI n his first issue, Sweed complains that the tria l court abuse d its discretion by finding him

to be a vexatious litigant. W e review the trial court' s deter mination for an abuse of discretion.
Harris v. Rose , 204 S.W .3d 903, 906 (Tex.App.--Da llas 2006, no pet.). Under that standard, we are
not fre e to substitut e our own judgme nt for that of the trial court. Bowie Mem 'l Hosp. v. W right , 79
S.W .3d 48, 52 (Tex. 2002). A trial court abuses its discretion if it acts in an arbitra ry or capr icious

manner without ref

ere nce to any g uiding rules or principles. Bocque t v. Herring , 972 S.W .2d 19, 21 (Tex. 1998). Chapter 11 of the Texas Civil Practice and Remedies Code provides a mecha nism to restric t frivolous and vexatious litigation. See T E X .C I V .P R A C .&R E M .C O D E AN N
. §§ 11.051-.057 (Ve rnon 2002); Harris v. Rose , 204 S.W .3d 9 0 3 , 905 (Tex.App.--Da llas 2006, no pet.). This leg islation
soug ht to strike a balanc e betwee n Texans' rig hts of acc ess to their courts and the public interest in protec ting defe ndants from those who abuse the Texas court sy stem by sy stematically filing lawsuits with littl e or no merit. W illms v

. Americas Tire Co., Inc. , 190 S.W .3d 796, 804 (Tex.App.--Da llas 2006, pet. denied)

. A defe ndant may seek a court order deter mining that the plaintiff is a vexatious litigant and requiring the plaintiff to furnish secur ity for the benef it of the moving defen d an t

. T E X .C I V .P R A C .&R E M .C O D E AN N
. § 11.051. A court may find a plaintiff to be a vexatious litiga nt if the defe ndant demonstrates that there is a rea sonable probability that the plaintiff will not preva il in the litigation and (1) t h e p laintiff, in the seven- y ear period immediately prec eding the date the defe ndant makes the motion under Section 11.051, has commence d, prosec uted, or maintained in propria persona at least five litigations other than in a small claims court that ha ve bee n: (A) f inally deter mined adver sely

to the plaintiff; (B ) permitted to rema in pending at least two y ear s without having been br oug ht to trial or hear ing; or(C) deter mined by a trial or appella te court to be frivolous or g roundless under

state or f eder al laws or r

ules of proc edure ; (2) afte r a litigation has been finally deter mined ag ainst the plaintiff, the plain t iff repe atedly

relitig ates or attempts to relitigate, in pr opria pe rsona, e ither: (A) the validity of the deter mination ag ainst the same defe ndant as to whom the litigation wa s finally deter mined; or (B ) the cause of action, claim, controve rsy , or any of the issues of fac t or law deter

mined or conclude d by the final deter mination ag ainst the same defe ndant as to whom the litigation was finally deter mined; or (3) the pla intiff has pre viously been de clar ed to be a vexatious l itigant by a state or fede ral cou rt i n an action or proce eding based on the same or substantially simil ar fac ts, transition [ sic], or occurr ence . Id . § 11.054. I f the trial c ourt deter mines that the plaintiff is a vexatious litiga nt, it must order

the plaintiff to furnish secur ity and deter mine the date by which secur ity must be posted. Id

. § 11.055(a) , (b). I f the plaintiff does not post secur ity by the deadline, the trial court must dismiss the litigation

as t o t h e m oving defe ndant. Id

. § 11.056; see also Gant v. Grand Prairie Ford, L.P. , No.
02-06-00386- CV, 2007 W L 2 0 67753, at *4 (Tex.App.--F ort Worth J uly 19, 2007, pet. denied) (mem.op.)( afte r trial court decla red plaintiff a vexatious litiga nt, tr ial court had duty as a matter of statutory law to dismiss plaintiff' s lawsuit afte r plaintiff failed to furnish requ i re d secur ity within time ordere d). The rec ord reve als that Ny e p rese nted sufficie nt evidenc e to satisfy the statutory require ments. During the hear ing, Ny e testified that he and Sweed enter ed into a contra ct providing for a one-third conti n gen t fe e. He tender ed evidenc e indicating exactly how much he rec eived, exactly how much was pai d o u t , and exactly how much Sweed rec eived. Ny e also prese nted a

co m p lete accounting of t he moni es, i ncluding an additional $95 that he paid to Sweed i n o rd er t o settle the dispute while it was still at the g rieva nce level. Ba sed upon this evidenc e, Ny e establishedthat there was a rea sonable probability that Sweed wo u l d not preva il in the litigation.

T E X .C I V .P R A C .&R E M .C O D E AN N . § 11.054. Additionally , Ny e introduced the officia l rec ord keeping of the Able Term Sessions (JI MS) showing that Sweed has filed sevente en lawsuits since 1993. The seven-y ea r s t at u tory window extends from the date Ny e filed his motion back to 2000. Since 2000, Sweed filed lawsuits bear ing

cause numbers 2000-4238, 2002- 5576, 2003-862, 2003-5364, 2005-5667, and the prese nt lawsuit
2007- 2271. All of the lawsuits have been disposed by dismiss al, by summary judgme nt, or for want of prose cution. Ny e desc ribed the la wsuits for the trial c ourt: J ust briefly , as the Court can see from examination, he has sued me, he has sued the City of El Paso, he has sued the Sheriff’ s Depa rtment, he’s sued the court repor ters, he’s sued the 210th District Court, he’s sued the District Attorney ’s Offic e, he’s sued court administration, County Court 4, he sued J udg e Kitty Schild, the District Clerk, ag ain t he S heriff

, the j ail, Mr. R y den [ ph], I d o n ’t know who that was, the jail, the medical depar

tment from the jail, the doctor from the jail, the food service from the jail. Ag ain, i n an o t h er lawsuit, the jail, the jail personne l, the licensed vocational nurse f rom the jail.
J udg e, he has sued in another case J udg e Sam Pax son, May or Fr ancis, J udg e Chuck Mattox of El Paso County

. I n another lawsuit, the Sheriff, the jail medical fa cility , ag ain, El Paso County

. An o t h er l aw s uit, the jail, the Sheriff, J udg e Chacon. And then, of course , the lawsuit that started this whole thing back in ‘93, which was settled. I n addition to that he has filed g rieva nces a g ainst me, sever al.

I n its written order , the trial court found that Sweed’ s pleading s wer e signe d in violation of Section 9.011 of the Civil Practice s and Remedies Code in that they wer e g roundless, broug ht in bad faith, and for the purpose of hara ssment. Wit h reg ard to Chapter 10 of the Code, the trial court found that the pleading s wer e filed for improper purposes, including hara ssment, and t hat none of the alleg ations or fac tual contentions had any evidentiar y support. As to Chapter 11, the court found that there was no rea sonable probability that Sweed would preva il in the litigation, that he is a vexatious litigant who has filed mult i p l e lawsuits ag ainst Ny e and others, in excess of five lawsuits andg rieva

nces other than small claims in the seven y ear period immediately prec eding the date that Ny e filed his motion, all of which wer e deter mined adver sely to Sweed and which Sweed has repe atedly

re- litigated or attempted to re- litigate aga i n s t t he same defe ndant. Be cause the rec ord clea rly establishes that the trial court did not abuse its discretion in ruling Sweed to be a vexatious litigant,

we ove rrule I ssue One.
STATUT E OF LIMITATIONS
I n Point of Error Two, Sweed contends that the t rial court abused its di s cr et ion by finding that his lawsuit was not timely filed wit hin tw o y ea rs of t he incident g iving rise to the claim. Ny e aff irmatively

pled a limitations defense and soug ht summary judgme nt on that basis. But the trial

court e x pressly

ref used to rule on Ny e’s motion for summary judgme nt. We overrule I ssue Two.
SERVICE UPON TEAJF
I n his third issue, Sweed complains that the trial court abused its discretion by finding his that his pe tition was not pr operly serve d on TEAJF. As we have noted, Swee d reque sted service upon the Attorney Gene ral Offic e of the State of Texas. Sweed arg ues that beca use the Attorney Gene ral is char g ed with repr esenting the State and it s age n cies in all civil litigation, his office has the authority to acc ept service of proce ss. I n support of this arg ument, he direc ts us to Sections 104.004 and 104.005 of the Texas Civil Practice and Remedies Code. Section 101.102(c) provides that citations must be served as in other civil case s unless no m et h o d o f service is provided by law, in which case service may

be on the administrative head of the g overnme ntal unit be ing serve d. The
Texas Attorney Gene ral has not been statutorily or constitutionally desig nated the administrative head of TEAJF. Article 4, Secti on 22, Texas Constit ution; T E X .G O V ’ T C O D E AN N
. § 402.021 (Subchapte r B . Duties of the Attorne y Gene ral). A dditionally , Section 30.004 require s more: (a) This section applies to a c ivil case in which:(1) the sta te is named a s a par ty ; (2) an ag ency

in the executive or leg islative depar tment is na med as a par ty ; or (3) a party

may be re prese nted by

the attorne y

g ener al as a

uthorized by Chapter 104. (b) On the filing of any petition in a case subject to this section, a copy of the petition shall be mailed to the attorney at t he attorney g ener al’ s o ff i ce i n Austin, Texas, by United States Postal Service c ertified ma il, return re ceipt re quested. ( c) Mailing notice as required by Subsection ( b) does n o t s a t i s

f y any other jurisdictional requireme nt relating to service of proces s on a state officer, board, commission, agency

, or instit ution that is a na me d party in a court procee ding. [Emphasis added]. (d) Fa ilure to g ive notice in a case in which notice is re q u ired by Subsection (b) results in any

defa ult judgment in the ca se being set aside without costs.
T E X .C I V .P R A C .&R E M .C O D E AN N
. § 30.004 (Ve rnon 2009). No ag ent or employ ee of TEAJF was

serve d with proce ss or enter ed an a ppear ance befor e the district cour t. We overrule I ssue Thre e. LACK OF JURISDICTION Finally , Sweed arg ues that the trial court abused its discretion by finding that the trial court lacke d jurisdicti o n . Fr o m h i s brief, it appea rs that Sweed has construed the trial court’s order as finding a lack of subject matter jurisdiction. He direc ts us to State v. Mey er , 403 S.W .2d 366 (Tex. 1966), a condemna tion case in which damag es we re a war ded. The only

rele vance we can dis cer

n is a “taking s” ref

ere nce found in one sentenc e of Sweed’ s arg ument, “and under the Texas Supreme
Court h o l d i n g in State vs. Mey er [citation deleted] the trial court have [si c] jurisdiction over this plainti ff co n v ersion of persona l proper ty claim.” Certainly the trial court had subject matter jurisdiction of the conver sion claim and it did not rule o t h er wi s e. T he court did find during the hear ing tha t TEAJ F ha d not been se rved w ith process-- a requirement of persona l jurisdiction--butthat was not the ba sis for the dismissal. The written orde r conta ins the following la ng uag e: IT IS THERE F ORE ORDERED , A D J U D G ED A N D D EC R EE D th a t th is la wsuit broug ht by Plaintiff is deeme d a frivolous lawsuit and there fore shall be and is here by dismiss ed with prejudice pursuant to Sections 9 and 10 of t he Tex as Civil P rac tice and Remedie s Code and Rule 13 of the T exas Rules of Civi l Procedure

. * * * * * * The Court there fore order s that Plaintiff SWEE D pay into the reg i stry of t he court the amount of five thousand dollars ($5,000.00) within ten (10) day s of t he date of this order as secur ity for the benef it of Def endant NYE

. . . . Fa ilure to deposit said secur ity is additional gr ounds for the dismissal of the suit. Sweed did not, and ha s not, posted security . We overrule I ssue Four

. Having overr uled all issues for r eview, w e af

firm the judg ment of the c ourt below.

Fe bruar y 24, 2010 ANN CRAWFORD McCL URE, J ustice
Be fore Chew, C.J ., McClure, a nd Rivera, JJ

.