Affirmed and Memorandum Opinion filed April 10, 2014.

In The

Fourteenth Court of Appeals

NO. 14-12-01025-CV

RALPH DOUGLAS, Appellant

V.

THE HONORABLE BRADY G. ELLIOTT, THOMAS R. CULVER, III,

AND DANIEL R. SKLAR, Appellees

On Appeal from the 268th District Court

Fort Bend County, Texas

Trial Court Cause No. 12-DCV-200383

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

Ralph Douglas filed a pro se action against three judges in Fort Bend 

County. The trial court dismissed the suit for want of jurisdiction. The court also

declared Douglas a vexatious litigant and entered an order requiring him to obtain 

permission before filing any other action in state court. Douglas challenges these 

rulings and others in seven issues on appeal. We affirm.
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BACKGROUND

Douglas is a twice-convicted felon currently serving a sentence of life 

imprisonment. From the isolation of his jail cell, Douglas has filed dozens of pro se 

lawsuits, appeals, and original proceedings. This particular case stems from events 

that transpired during two of Douglas’s previous lawsuits.

A. The Redmond Litigation

In 2010, Douglas filed a lawsuit against Lori Redmond, an attorney who had 

previously represented him before the Texas Board of Pardons and Paroles. 

Douglas alleged that Redmond was liable to him for professional negligence

because the Board had refused to grant him parole. Douglas moved for a traditional 

summary judgment, which the trial court denied after considering Redmond’s 

response.

After the denial of his motion, Douglas moved the trial court to declare that 

Redmond had committed a fraud upon the court. Redmond filed another response, 

arguing that the motion was groundless, brought in bad faith, and made solely for 

the purpose of harassment. Redmond also filed a motion for sanctions. The 

presiding judge, the Honorable Brady G. Elliott, construed Redmond’s motion for 

sanctions as a motion to declare Douglas a vexatious litigant under Chapter 11 of 

the Civil Practice and Remedies Code. Judge Elliott then entered a stay of the 

proceedings and ordered the parties to brief whether Douglas should be declared a 

vexatious litigant. After affording both parties an opportunity to respond, Judge 

Elliott declared Douglas a vexatious litigant and disposed of his action against 

Redmond. The record does not reflect that a prefiling order was entered against 

Douglas. We affirmed the trial court’s rulings on direct appeal. See Douglas v. 

Redmond, No. 14-12-00259-CV, 2012 WL 5921200, at *8 (Tex. App.—Houston 

[14th Dist.] Nov. 27, 2012, pet. denied) (mem. op.).
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B. The Elliott Litigation

During the pendency of the Redmond appeal, Douglas filed a separate action

against Judge Elliott in his official judicial capacity. Douglas alleged that Judge 

Elliott had violated the Texas Constitution by presiding over the Redmond

litigation in a biased and unfair manner. The core of Douglas’s complaint was that 

Judge Elliott had improperly construed Redmond’s motion for sanctions as a 

motion to declare Douglas a vexatious litigant.

The lawsuit was assigned to the court of Fort Bend County Judge Thomas R. 

Culver, III. When Judge Elliott filed his original answer, Douglas moved to 

transfer venue, arguing that he could not receive a fair trial in Fort Bend County.

Judge Culver never ruled on the venue motion.

Judge Elliott subsequently moved to dismiss the charges against him, 

arguing that he was immune from actions taken in his official judicial capacity. 

Judge Culver scheduled a live hearing on the motion to dismiss. Douglas requested 

to appear via telephone conference, but Judge Culver signed a bench warrant 

ordering his appearance in person. Douglas was transferred to the Fort Bend 

County courthouse and placed in a holdover cell. Minutes before his hearing was 

set to commence, Douglas was informed that Judge Culver was sick and that the 

hearing would have to be continued.

Visiting Judge Daniel R. Sklar presided over the next hearing in place of 

Judge Culver. Douglas filed objections to the motion to dismiss, and he also 

complained about the court’s failure to rule on his motion to transfer venue. Judge 

Sklar granted the motion to dismiss and denied the venue motion. No other rulings 

were made on Douglas’s objections. Douglas appealed again, and we affirmed the 

trial court’s judgment. See Douglas v. Elliott, No. 14-12-00699-CV, 2013 WL 
4

5883801, at *2 (Tex. App.—Houston [14th Dist.] Oct. 31, 2013, no pet. h.) (mem. 

op.).

C. The Current Litigation

Douglas filed the current litigation against Judges Elliott, Culver, and Sklar, 

each in their official judicial capacity. Douglas asserted multiple complaints, 

generally alleging that the judges had acted in a manner that was either retaliatory 

or deliberately indifferent to his rights. Douglas complained about Judge Culver’s 

signing of the bench warrant. Douglas claimed that because he was not given 

advance notice of the bench warrant, he was unable to bring all of his legal 

materials to court. He alleged that the bench warrant was “maliciously and 

intentionally done to deny [him] access to courts, and to [interrupt] and disrupt 

[his] life.”

Douglas also alleged that Judge Sklar improperly ruled on motions and 

failed to rule on others. Douglas contends that Judge Sklar’s “mind was made up 

before the hearing.” Douglas further contends that Judge Elliott conspired with 

Judges Culver and Sklar to deprive him of his rights. Douglas alleges that the three 

judges have violated both the criminal law and the Code of Judicial Conduct. The 

triggering event for all of these complaints is Judge Elliott’s ruling in the Redmond

litigation.

Douglas filed a motion to transfer venue, asserting again that he could not 

receive a fair trial in Fort Bend County. The judges filed a motion to dismiss, 

asserting that they were immune for actions taken in their official capacity. The 

trial court granted the judges’ motion in full and dismissed Douglas’s action with 

prejudice. There was no ruling on the venue motion. The judges then moved to 

declare Douglas a vexatious litigant. The trial court granted the motion and entered 

a prefiling order applicable statewide. From these rulings, Douglas now appeals.
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ISSUES PRESENTED

Douglas raises seven issues. In issues one and two, Douglas argues that the 

trial court erred by granting the motion to dismiss for want of jurisdiction. In issues 

three and four, he argues that the trial court erred by failing to rule on his motion to 

transfer venue. In issues five through seven, he argues that the trial court abused its 

discretion by declaring him a vexatious litigant and issuing a prefiling order. 

MOTION TO DISMISS

The judges treated their motion to dismiss as a plea to the jurisdiction. A 

plea to the jurisdiction challenges the trial court’s subject matter jurisdiction. See 

Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). Whether a court 

has subject matter jurisdiction is a question of law that we review de novo. See 

Tex. Nat’l Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 

2002); Alobaidi v. Univ. of Tex. Health Sci. Ctr. at Houston, 243 S.W.3d 741, 744 

(Tex. App.—Houston [14th Dist.] 2007, pet. denied). A plea to the jurisdiction can 

challenge either the sufficiency of the pleadings or the existence of jurisdictional 

facts. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226–28 

(Tex. 2004); Ahmed v. Metro. Transit Auth., 257 S.W.3d 29, 31 (Tex. App.—

Houston [14th Dist.] 2008, no pet.).

When a plea to the jurisdiction challenges the sufficiency of the plaintiff’s 

pleadings, as in this case, we determine whether the plaintiff has alleged facts that 

affirmatively demonstrate the court’s jurisdiction to hear the cause. See Miranda, 

133 S.W.3d at 226. We construe the pleadings liberally in favor of the plaintiff and 

consider the plaintiff’s intent. See Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 

S.W.2d 440, 446 (Tex. 1993). If the pleadings do not allege sufficient facts to 

affirmatively establish the trial court’s jurisdiction, but also do not affirmatively 

demonstrate incurable defects in jurisdiction, the issue is one of pleading 
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sufficiency. Under these circumstances, the plaintiff should be afforded an

opportunity to amend. See Cnty. of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 

2002). If the pleadings affirmatively negate the existence of jurisdiction, then a 

plea to the jurisdiction may be granted without allowing the plaintiff an 

opportunity to amend. Id.

Immunity from suit defeats a trial court’s subject matter jurisdiction. See 

Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638–39 (Tex. 1999) (per curiam). 

Judges acting in their official judicial capacity are immune from suit if their actions

were performed within the scope of their jurisdiction. See Twilligear v. Carrell, 

148 S.W.3d 502, 504 (Tex. App.—Houston [14th Dist.] 2004, pet. denied) (citing 

Dallas Cnty. v. Halsey, 87 S.W.3d 552, 554 (Tex. 2002)). Judicial immunity 

extends to all judicial actions, whether they are done in error, maliciously, or even 

in excess of the judge’s authority. Id. Immunity is overcome only for actions that 

are nonjudicial—i.e., for actions not taken in the judge’s official capacity or for 

actions taken in the complete absence of all jurisdiction. Id. Whether an act is 

judicial is determined by the nature of the act. Id. An act is judicial if it is a 

function normally performed by a judge, as contrasted with other administrative, 

legislative, or executive acts that simply happen to be done by judges. Id. at 504–

05. Judicial acts include those performed by judges in adjudicating their cases or in 

exercising their judicial authority over proceedings pending in their courts. Id. at 

505.

The judges in this case argue that they are entitled to immunity because 

their actions were judicial in nature. The pleadings affirmatively state judicial acts. 

Douglas sued Judge Culver for signing a bench warrant, and he sued Judge Sklar 

for disposing of his case. Both of these actions were taken to adjudicate and 

exercise authority over the proceedings. Douglas sued Judge Elliott for conspiring 
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with Judges Culver and Sklar to retaliate against him. This is merely a relabeled 

claim that Judge Elliott improperly ruled against him in the earlier litigation. 

Because all of the alleged actions are judicial in nature, we conclude that the 

judges are protected by judicial immunity. The trial court correctly dismissed

Douglas’s action for want of jurisdiction.

VENUE

In issues three and four, Douglas argues that he was entitled to a change of 

venue. We briefly address why this complaint is without merit. First, as we just 

explained above, Douglas’s pleadings affirmatively demonstrate that the defendant 

judges are protected by judicial immunity. Because judicial immunity deprives a 

court of subject matter jurisdiction, there is no other court in Texas to which 

Douglas’s claims may have been transferred. Even if we were to assume that a 

court did have subject matter jurisdiction, Douglas, as the plaintiff below, elected 

to try his case in Fort Bend County when he filed his petition there. Douglas has 

cited no authority in support of his claim that a plaintiff may select another venue 

during the course of the proceedings. We conclude that this issue has been waived. 

See Tex. R. App. P. 38.1(i).

VEXATIOUS LITIGANT

In his final three issues, Douglas challenges the trial court’s determination 

that he is a vexatious litigant. Douglas contends that the judges’ motion to declare 

him vexatious is “frivolous on its face.”

The criteria for declaring a plaintiff a vexatious litigant are governed by 

statute. Two requirements must be satisfied. First, the court must determine that 

there is not a reasonable probability that the plaintiff will prevail in the litigation. 
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See Tex. Civ. Prac. & Rem. Code § 11.054. Second, one of three enumerated 

findings must be proved:

(1) the plaintiff, in the seven-year period immediately preceding the 

date the defendant makes the motion under Section 11.051, has 

commenced, prosecuted, or maintained in propria persona at least five 

litigations other than in a small claims court that have been:

(A) finally 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 rules of procedure;

(2) after a litigation has been finally determined against the plaintiff, 

the plaintiff repeatedly relitigates or attempts to relitigate, in propria 

persona, either:

(A) the validity of the determination against the same defendant 

as to whom the litigation was finally determined; or

(B) the cause of action, claim, controversy, or any of the issues 

of fact or law determined or concluded by the final 

determination against the same defendant as to whom the 

litigation was finally determined; or

(3) the plaintiff has previously been declared to be a vexatious litigant 

by a state or federal court in an action or proceeding based on the 

same or substantially similar facts, transition, or occurrence.

See Act effective Sept. 1, 1997, 75th Leg., R.S., ch. 806, § 1, 1997 Tex. Gen. Laws 

2634, 2635.1

The trial court’s order does not recite any findings. It merely states that the 

court was of the opinion that Douglas should be declared a vexatious litigant. 

When the trial court does not specify the basis for its decision, we must affirm the 

 

1

The legislature amended Section 11.054 after Douglas filed this lawsuit. The amended 

version of the statute is substantially similar to its predecessor. The only difference is the 

substitution of the outdated “in propria persona” language with the more vernacular “pro se.” See 

Act effective Sept. 1, 2013, 83d Leg., R.S., ch. 1224, § 3, 2013 Tex. Gen. Laws 3080, 3080–81.
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order if it is correct on any legal theory supported by the record. See Bilnoski v. 

Pizza Inn, Inc., 858 S.W.2d 55, 58 (Tex. App.—Houston [14th Dist.] 1993, no 

writ).

For reasons already discussed, the trial court could have determined that 

Douglas did not have a reasonable probability of prevailing against the defendant 

judges, who were all protected by judicial immunity. Thus, the first requirement 

under Section 11.054 is satisfied.

To satisfy the second requirement, the judges offered two separate exhibits. 

The first exhibit was an order from a Harris County court declaring Douglas a 

vexatious litigant in 2008. The order includes a prefiling order limited exclusively 

to Harris County. It also includes a list of nearly two dozen cases filed by Douglas 

which the court determined to be frivolous.

The second exhibit is the more recent order from Judge Elliott declaring 

Douglas a vexatious litigant in 2012. This order arose during the Redmond

litigation, one of two predicate lawsuits forming the basis for this current litigation. 

This evidence supports a finding that Douglas “has previously been declared to be 

a vexatious litigant by a state or federal court in an action or proceeding based on 

the same or substantially similar facts, transition, or occurrence.” See Tex. Civ. 

Prac. & Rem. Code § 11.054(3). Accordingly, there is legally sufficient evidence 

to support the second requirement under Section 11.054. With both requirements 

satisfied, we conclude that the trial court did not err by declaring Douglas a 

vexatious litigant and issuing a prefiling order against him. See id. § 11.101 (court 

may issue prefiling order to a person adjudged a vexatious litigant).

Douglas raises a separate complaint that the evidence is factually insufficient 

to support the trial court’s finding that he is a vexatious litigant. However, Douglas 

produced no evidence contrary to the finding, and he has not cited to any evidence 
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in his brief. Douglas has failed to show that the trial court’s finding is so against 

the great weight and preponderance of the evidence as to be clearly wrong and 

unjust. See Tex. R. App. P. 38.1(i); In re C.H., 89 S.W.3d 17, 25 (Tex. 2002).

CONCLUSION

The judgment of the trial court is affirmed.

/s/ Tracy Christopher

Justice

Panel consists of Justices Boyce, Christopher, and Brown.