See Tex. R. App. P. 47.4. 1

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 2-09-443-CV

MICHAEL LOU GARRETT APPELLANT

V.

BARRY L. MACHA APPELLEE

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FROM THE 30TH DISTRICT COURT OF WICHITA COUNTY

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MEMORANDUM OPINION1

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Appellant Michael Lou Garrett appeals from the trial court’s dismissal with

prejudice of his claims against Appellee Barry L. Macha. Garrett brings three

issues alleging error in the trial court’s actions with respect to his motion to

recuse, Macha’s motion to declare Garrett a vexatious litigant, and the court’s

dismissal of Garrett’s claims with prejudice. Because we hold that Garrett did
Tex. Code Crim. Proc. Ann. arts. 2.03, 3.04 (Vernon 2005). 2

Tex. Penal Code Ann. § 39.03 (Vernon 2003). 3

2

not meet his burden on his motion to recuse, that the trial court did not err by

declaring him a vexatious litigant, and that some of his arguments are

inadequately briefed, we affirm the trial court’s judgment.

I. Background

Garrett is an inmate currently incarcerated in the Texas Department of

Criminal Justice. Macha is the district attorney for Wichita County. In

September 2009, after Macha had declined to bring criminal charges of

conspiracy and attempted murder against a doctor working at the prison,

Garrett filed a “petition for removal” against Macha, seeking Macha’s removal

from office. Garrett alleged that Macha had committed acts of official

misconduct and neglect of duty under articles 2.03 and 3.04 of the code of

criminal procedure and acts of official oppression in violation of penal code 2

section 39.03.3

Macha answered, alleging among other things that Garrett’s suit was

“wholly frivolous or malicious and fail[ed] to state any legal or factual claims

upon which relief can be granted under any statutory or constitutional theory.”

With Macha’s answer, he included a motion to dismiss on the ground that

Garrett had knowingly filed a false declaration of his litigation history. Macha
See Tex. Civ. Prac. & Rem. Code Ann. § 14.004 (Vernon 2002) 4

(requiring an inmate proceeding pro se to file an affidavit or declaration relating

to the inmate’s previous pro se filings).

No. 02-08-00186-CV, 2008 WL 5115227, at *4 (Tex. App.—Fort Worth

5

Dec. 4, 2008, no pet.) (mem. op.).

Id. at *3. 6

3

asserted that Garrett was required to file a declaration identifying any other suit

that he had previously brought pro se; stating the operative facts for which

relief was sought; listing the case name, number, and court in which the suit

was brought; identifying each party named in the suit; and stating the result of

the suit. Macha stated that Garrett was aware of this requirement and yet 4

included with his petition an affidavit that does not set out his litigation history.

To demonstrate Garrett’s awareness of the declaration requirement,

Macha attached a copy of this court’s opinion in Garrett v. Trapp in which this 5

court upheld a trial court’s dismissal of Garrett’s claims against another

defendant for failure to comply with the declaration requirement. We noted

that Garrett had acknowledged in his petition that he was required to file an

affidavit relating to previously filed lawsuits, that Garrett had failed to identify

and describe numerous cause numbers, and that the trial court could have

therefore dismissed Garrett’s pro se suit on the ground that he had filed an

affidavit that he knew was false.6
Tex. Civ. Prac. & Rem. Code Ann. § 11.051 (Vernon 2002). 7

4

Garrett then filed a motion to recuse Judge Robert P. Brotherton, the trial

judge assigned to the cause. Garrett alleged that Judge Brotherton had been

the trial judge in Trapp and that Judge Brotherton had personal bias and

prejudice against Garrett because he had dismissed Garrett’s claims in that

case. Garrett asserted that Judge Brotherton, “while determining the merits of

[Macha’s] Motion to Dismiss [Garrett’s] petition, will be considering ‘evidence’

in support of the Motion, of which he himself had personal involvement of

creating and now being used by [Macha] to support his Motion.”

Judge Brotherton declined to voluntarily recuse himself and referred

Garrett’s motion to Judge Jeff Walker, the regional administrative judge. Judge

Walker held a hearing, at which Garrett was present, on October 28, 2009. At

the conclusion of the hearing, Judge Walker stated that he was going to deny

the motion to recuse. Judge Walker did not, however, enter the order denying

the motion until almost a month later, on November 25, 2009.

On November 4, 2009, Macha filed a motion to declare Garrett a

vexatious litigant under civil practice and remedies code section 11.051. In 7

the motion, he also asked the court to deem Garrett’s suit “frivolous and

brought for the purposes of abusing . . . judicial resources” under government
Tex. Gov’t Code Ann. § 498.0045 (Vernon Supp. 2009). 8

5

code section 498.0045 in order to authorize the department of criminal justice

to forfeit Garret’s good conduct time.8

On November 16, 2009, Garrett filed a motion for voluntary dismissal of

his claims against Macha. Three days later, Garrett filed a response to Macha’s

motion to declare him a vexatious litigant, opposing the motion “in the event

that” the trial court had not ruled on Garrett’s motion to dismiss or that Macha

had opposed the motion. On November 25, 2009, Judge Roger Towery held

a hearing on Macha’s motion to declare Garrett a vexatious litigant. Garrett

was not present at the hearing. Macha did not introduce any evidence at the

hearing; rather, he relied on evidence that he had submitted to the court with

his motion. At the conclusion of the hearing, Judge Towery entered an order

declaring Garrett to be a vexatious litigant and an order dismissing Garrett’s

claims against Macha with prejudice.

II. Analysis

Garrett’s Motion to Recuse the Trial Court

In his first issue, Garrett argues that Judge Walker erred by finding that

he had failed to show by a preponderance of the evidence that Judge

Brotherton should be recused from the case. Garrett argues that he
See Tex. R. Civ. P. 18b(1)(b), 18b(2)(a), and 18b(2)(b). 9

See Tex. R. App. P. 38.1(i) (stating that an appellant’s issues must be 10

supported by argument with citations to authority).

6

demonstrated that Judge Brotherton had an interest in the subject matter, that

his impartiality might be reasonably questioned, and that he had personal

knowledge of disputed evidentiary facts. To support his motion, Garrett relied 9

on the fact that Judge Brotherton had previously dismissed one of Garrett’s pro

se lawsuits for noncompliance with section 14.004. Thus, Garrett argued,

Judge Brotherton would be “examining ‘evidence’ ‘of his own making,’” and in

order to rule in Garrett’s favor in this case, the judge “would have to

‘contradict’ his own findings in his dismissal” of Garrett’s previous case.

Appellant cites to no case to support his proposition that a trial court’s

ruling in a prior, unrelated case would, by itself, demonstrate that the court’s

impartiality in a pending case might be reasonably questioned, that such a ruling

demonstrates personal knowledge of disputed evidentiary facts at issue in the

current pending case, or that the court has an interest in the subject matter.10

Furthermore, the evidence relied on by Garrett—Judge Brotherton’s prior

ruling—does not establish the need for Judge Brotherton’s recusal by a

preponderance of the evidence. The standard for recusal on an assertion of

bias or impartiality is whether a reasonable person in the community would
Kirby v. Chapman, 917 S.W.2d 902, 909 (Tex. App.—Fort Worth

11

1996, no writ).

See id. (noting that a reasonable person “must be aware of the ‘facts 12

of life’ that surround the judiciary”).

Gulf Maritime Warehouse Co. v. Towers, 858 S.W.2d 556, 558 (Tex. 13

App.—Beaumont 1993, writ denied). 

7

believe that the judge’s recusal is required We reject the argument that a 11

reasonable person would doubt that a judge could be fair and impartial in a case

involving the dismissal of a claim for failure to comply with procedural rules

merely because that judge had previously dismissed a claim brought by the

same plaintiff on the same ground. And for a trial judge to be disqualified 12

based on an “interest” in the subject matter, the judge must have a direct

pecuniary or property interest in the subject matter of the litigation. No 13

evidence shows that Judge Brotherton has any pecuniary or property interest

in Macha’s removal from office. We overrule Garrett’s first issue.

Vexatious Litigant Declaration

In Garrett’s second issue, he argues that the trial court erred at the

hearing on Macha’s motion to declare him a vexatious litigant by allowing

Macha to argue his motion, precluding Garrett from being present at the

hearing, not allowing Garrett to argue his written opposition to the motion, and

refusing to consider Garrett’s written opposition at the hearing. He also argues
See Nell Nations Forist v. Vanguard Underwriters Ins. Co., 141 S.W.3d 14

668, 670 (Tex. App.—San Antonio 2004, no pet.) (applying, as a matter of

first impression, an abuse of discretion standard to a trial court’s determination

under section 11.054 of the civil practice and remedies code).

See Tex. Civ. Prac. & Rem. Code Ann. § 11.054 (Vernon 2002). 15

8

that the trial court abused its discretion by granting Macha’s motion to declare

him a vexatious litigant and by imposing sanctions against him.

14

In support of this issue, Garrett first argues that the evidence offered by

Macha in support of his motion to have Garrett declared a vexatious litigant

does not show that, in the seven-year period preceding the date of the motion,

Garrett had commenced, prosecuted, or maintained at least five pro se suits

that had been finally determined adversely to him or determined to be frivolous

or groundless. He contends that the cases introduced by Macha were not 15

cases decided adversely to him and that, for the most part, they were cases

that were dismissed only because he could not pay a filing fee. We disagree.

Macha attached evidence demonstrating that Garrett is a prolific filer of pro se

actions in both federal and state court. Only one of the trial court orders

included by Macha was a dismissal of Garrett’s claim for failure to pay a filing

fee. Macha included evidence of other suits filed by Garrett, including five

previous litigations commenced, prosecuted, or maintained by him pro se in the

seven years before commencing this action—three in federal court and two in
See id. § 11.054(1)(A). 16

Id. § 11.053 (Vernon 2002). 17

Id. 18

In re Z.L.T., 124 S.W.3d 163, 165 (Tex. 2003); see also Ford v. 19

Clendennen, No. 09-04-00257-CV, 2004 WL 2964953, at *1–2 (Tex.

App.—Beaumont Dec. 16, 2004, no pet.) (mem. op.) (holding that an inmate

9

state court—that were either determined to be without merit or dismissed with

prejudice under chapter 14. Thus, Macha met his burden under section

11.054(1)(A). The trial court therefore did not abuse its discretion by 16

declaring Garrett to be a vexatious litigant based on Macha’s evidence.

Garrett next argues that because the trial court held an evidentiary

hearing on Macha’s motion and because Macha was present at the hearing,

Garrett had “an absolute right to be present as well.” He further contends that

because he was threatened with sanctions, he was entitled to receive specific

notice of the conduct alleged to be actionable and the standard by which his

conduct would be assessed and to have an opportunity to be heard.

A trial court must hold a hearing on a motion to declare that a plaintiff is

a vexatious litigant. At that hearing, the trial court may consider evidence, 17

either written or oral, including evidence presented by witness or affidavit.18

But an inmate does not have an absolute right to appear in court in a civil

case. If an inmate requests to be present at a hearing, the trial court 19
does not have an absolute right to appear at a hearing on a motion to declare

him a vexatious litigant).

Z.L.T., 124 S.W.3d at 165. 20

Id. at 166. 21

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considers several factors in balancing preservation of the correctional system’s

integrity against the prisoner’s right of access. An inmate requesting a bench 20

warrant has the burden to justify the need for his presence in a civil action, and

the trial court is not required to independently inquire into the necessity of the

inmate’s appearance.21

Nothing in the record in this case shows that Garrett requested to be

present at the hearing (or that he requested to proceed by any other means,

such as by affidavit, deposition, or telephone), let alone met his burden to

justify the need for his presence. Accordingly, the trial court did not abuse its

discretion by not arranging for Garrett’s presence at the hearing.

Garrett also contends that the trial court violated the law and judicial

canons because the hearing constituted an ex parte communication between

Macha and the trial court and because Garrett was not allowed to be present.

As we stated above, an inmate has no absolute right to be present in a civil

action, and a trial court generally may hold a hearing without the presence of
See id. at 165–66. 22

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the inmate unless the inmate has established the necessity of his appearance.22

Accordingly, we hold that because Garrett did not establish the necessity of his

appearance, the trial court did not violate the law or judicial canons by holding

the hearing without him. 

Garrett further argues that he had an absolute right to have his response

to Macha’s motion considered by the trial court but that his response was not

mentioned at the hearing, which shows that it was not considered by the trial

court. At the start of the hearing, the trial court stated that it would take

judicial notice of the contents of its file. The record shows that Garrett’s

response opposing Macha’s motion was on file with the trial court at the time

of the hearing. We reject Garrett’s argument that the trial court’s failure to

mention Garrett’s response demonstrates that the trial court did not consider

it.

Garrett also argues that because Macha sought sanctions against him, he

had a right to (1) receive specific notice of the conduct alleged to be actionable

and the standard by which his conduct would be assessed and (2) an

opportunity to be heard. By “sanctions,” we assume Garrett refers to Macha’s

asking the trial court to deem Garrett’s action frivolous for purposes of
See Tex. Gov’t Code Ann. § 498.0045. 23

See Merriman v. Sec. Ins. Co. of Hartford, 100 F.3d 1187, 1191 (5th 24

Cir. 1996) (discussing sanctions under rule 11 of the federal rules of civil

procedure); Baulch v. Johns, 70 F.3d 813, 817 (5th Cir. 1995) (discussing

sanctions under 28 U.S.C. § 1927).

Merriman, 100 F.3d at 1192.

25

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authorizing the department of criminal justice to forfeit Garrett’s good conduct

time under section 498.0045 of the government code. Garrett did not raise 23

any due process arguments in the trial court with respect to the loss of his good

conduct time.

With respect to Garrett’s argument that he had to be given an opportunity

to be heard, nothing in section 498.0045 or in the rules of civil procedure

require the trial court to hold an actual hearing before deeming an action as

frivolous under that section. Garrett cites to two federal cases in support of his

argument, both of which hold that for sanctions available under federal law, the

party being sanctioned must be given an opportunity to respond, but neither

holds that an actual hearing is required. One case notes that for rule 11 24

sanctions, an actual hearing is not required. Thus, we construe Garrett’s 25

argument as an argument that the trial court was required to consider his

response to Macha’s motion. As discussed above, the record indicates that the

trial court did consider Garrett’s response. 
See Garrett v. Williams, 250 S.W.3d 154, 158 (Tex. App.—Fort Worth

26

2008, no pet.) (addressing and rejecting Garrett’s claim that his petition for writ

13

As for Garrett’s argument respecting notice of the conduct complained

of and the standard by which his conduct would be judged, he received

adequate notice. Macha had asked the trial court to declare Garrett’s action to

be frivolous, and he included an argument that there was no reasonable

probability that Garrett would prevail and explained in what manner Garrett had

failed to comply with chapter fourteen of the civil practice and remedies code.

Macha’s motion thus gave Garrett notice of the conduct alleged against him

and the standard by which his conduct would be assessed. Accordingly, we

overrule Garrett’s second issue.

Dismissal of Garrett’s Claims With Prejudice

In Garrett’s third issue, he argues that the trial court abused its discretion

by dismissing his claims with prejudice and erred by allowing Macha to argue

for dismissal with prejudice after denying Garrett’s motion for voluntary

dismissal, by precluding Garrett from being at the hearing, and by not allowing

Garrett to argue against dismissal with prejudice.

Garrett first argues that his petition for removal was a criminal petition,

not a “suit,” and, therefore, his petition for removal was not subject to chapter

fourteen. We have previously addressed this question in a similar context.26
of mandamus was not a “suit” for purposes of chapter fourteen).

Tex. Civ. Prac. & Rem. Code Ann. § 14.002 (Vernon 2002). 27

Garrett, 250 S.W.3d at 158 (quoting Black’s Law Dictionary 1475 (8th 28

ed. 2004)).

See Tex. Loc. Gov’t Code Ann. § 87.015 (Vernon 2008); In re Bazan, 29

251 S.W.3d 39, 42 (Tex. 2008) (noting that proceedings for removal under

subchapter B of chapter eighty-seven, which includes section 87.015, are civil

proceedings); State ex rel. Dishman v. Gary, 163 Tex. 565, 359 S.W.2d 456,

458 (1962) (noting that in an ouster suit (under former statute), “[e]xcept

where otherwise provided by statute, the rules of practice governing other civil

cases control”).

See also Garrett, 250 S.W.3d at 158. 30

14

Chapter fourteen of the civil practice and remedies code applies to a suit

brought by an inmate who has filed an affidavit or declaration of inability to pay

costs. A “suit” is “‘any proceeding by a party or parties against another in a 27

court of law.’” And contrary to Garrett’s contention that his action was 28

criminal in nature, he filed a petition for Macha’s removal under section 87.015

of the local government code, which is a civil proceeding, not a criminal one.29

We reject Garrett’s argument that his petition was not a “suit” and was not

subject to chapter fourteen.30

Garrett next argues that the trial court abused its discretion by allowing

Macha to argue his motion to dismiss with prejudice after denying Garrett’s

own motion to dismiss his claims without prejudice. A plaintiff has an absolute
Tex. R. Civ. P. 162; BHP Petroleum Co. Inc. v. Millard, 800 S.W.2d 31

838, 840–41 (Tex. 1990). 

Travelers Ins. Co. v. Joachim, No. 08-0941, 2010 WL 1933022, at *2 32

(Tex. May 14, 2010); Scott & White Mem’l Hosp. v. Schexnider, 940 S.W.2d

594, 596 (Tex. 1996).

Scott & White, 940 S.W.2d at 596–97; cf. Villafani v. Trejo, 251 33

S.W.3d 466, 470 (Tex. 2008) (stating that a nonsuit would obviate the need

for the discovery sanction of excluding a witness because the purpose of that

sanction was to protect the integrity of the proceeding, not to punish a party).

See Tex. R. App. P. 38.1(i). 34

15

right to take a nonsuit so long as the defendant has not made a claim for

affirmative relief. But even after a nonsuit, a trial court retains jurisdiction to 31

enter a final judgment, and a trial court may consider collateral motions while

it retains plenary power, even if they are filed after a nonsuit. The Supreme

32

Court of Texas has held, for example, that a trial court may rule on a rule 13

motion for sanctions after a nonsuit is filed and that to hold otherwise would

frustrate the policy behind civil procedure rule 13 by allowing a party to escape

sanctions by nonsuiting the aggrieved party. Garrett makes no argument to

33

support his complaint that the trial court erred by dismissing his claims with

prejudice, and he makes no argument as to why the court could not rule on

Macha’s pending motions despite the nonsuit. Nor does Garrett cite any

authority in support of such arguments. Accordingly, we hold that these

arguments are inadequately briefed.34
See id. 35

16

Garrett also contends that his petition had merit, but he makes no

argument and cites no authority in support of this contention. Thus, we also

overrule this argument as inadequately briefed. We overrule Garrett’s third 35

issue.

III. Conclusion

Having overruled Garrett’s three issues, we affirm the trial court’s

judgment.

PER CURIAM

PANEL: DAUPHINOT, J.; LIVINGSTON, C.J.; and GARDNER, J.

DELIVERED: August 31, 2010