Texas vexatious litigant orders: security within 90 days, and a statewide permission gate

Chapter 11 does two separate things and they are often run together. Subchapter B is a defensive motion in one case: prove the plaintiff is a vexatious litigant, and the court orders security or dismisses. Subchapter C is a prospective gate: a prefiling order that stops the person filing new cases pro se anywhere in Texas without a judge's permission.

Both apply only to a plaintiff proceeding pro se. Neither reaches a represented party.

The 90-day motion

CPRC § 11.051:

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.

Ninety days from the answer or the special appearance — whichever the defendant filed. It is a single motion asking for two things, and the second depends on the first.

What the defendant has to prove

CPRC § 11.054 sets a threshold that applies to every route, then gives three alternative grounds:

A court may find a plaintiff a vexatious litigant if the defendant shows that there is not a reasonable probability that the plaintiff will prevail in the litigation against the defendant and that:

That opening clause is not optional. However egregious the filing history, the defendant must also show the present case is unlikely to succeed.

Then ground one, the counting rule:

(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 at least five litigations as a pro se litigant 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;

Five, in seven years, pro se, excluding small claims. Note that a case does not have to have been lost: letting it sit for two years without a trial or hearing counts, and so does a frivolousness finding.

Ground two is relitigation:

(2) after a litigation has been finally determined against the plaintiff, the plaintiff repeatedly relitigates or attempts to relitigate, pro se, 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;

Both branches require the same defendant. Relitigating the same issue against a new opponent is not this ground.

Ground three is a prior designation:

(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.

Security, and dismissal for not posting it

CPRC § 11.055:

(a) A court shall order the plaintiff to furnish security for the benefit of the moving defendant if the court, after hearing the evidence on the motion, determines that the plaintiff is a vexatious litigant. (b) The court in its discretion shall determine the date by which the security must be furnished. (c) The court shall provide that the security is an undertaking by the plaintiff to assure payment to the moving defendant of the moving defendant's reasonable expenses incurred in or in connection with a litigation commenced, caused to be commenced, maintained, or caused to be maintained by the plaintiff, including costs and attorney's fees.

Once the finding is made, security is mandatory — "shall order" — and it is measured by the defendant's reasonable expenses including costs and attorney's fees, not by the value of the claim. The court sets the deadline.

CPRC § 11.056 supplies the consequence, in one sentence:

The court shall dismiss a litigation as to a moving defendant if a plaintiff ordered to furnish security does not furnish the security within the time set by the order.

Note "as to a moving defendant." The dismissal follows the motion; a defendant who did not move does not get the benefit.

The prefiling order, and how far it reaches

CPRC § 11.101 is the prospective half, and its last two subsections are the ones to know:

(a) A court may, on its own motion or the motion of any party, enter an order prohibiting a person from filing, pro se, a new litigation in a court to which the order applies under this section without permission of the appropriate local administrative judge described by Section 11.102(a) to file the litigation if the court finds, after notice and hearing as provided by Subchapter B, that the person is a vexatious litigant.

(b) A person who disobeys an order under Subsection (a) is subject to contempt of court.

(c) A litigant may appeal from a prefiling order entered under Subsection (a) designating the person a vexatious litigant.

(d) A prefiling order entered under Subsection (a) by a justice or constitutional county court applies only to the court that entered the order.

(e) A prefiling order entered under Subsection (a) by a district court, a statutory county court, or the business court applies to each court in this state.

The reach depends entirely on which court entered it. A justice court order binds that court alone. A district court order binds every court in Texas.

Two other features: the court may act on its own motion, without any party asking; and the prefiling order is separately appealable under (c), unlike the permission decisions discussed below.

Asking for permission to file

CPRC § 11.102 sets up the gate and, in its last subsection, closes off the usual appeal route:

(a) A vexatious litigant subject to a prefiling order under Section 11.101 is prohibited from filing, pro se, new litigation in a court to which the order applies without seeking the permission of: (1) the local administrative judge of the type of court in which the vexatious litigant intends to file, except as provided by Subdivision (2); or (2) the local administrative district judge of the county in which the vexatious litigant intends to file if the litigant intends to file in a justice or constitutional county court.

(b) A vexatious litigant subject to a prefiling order under Section 11.101 who files a request seeking permission to file a litigation shall provide a copy of the request to all defendants named in the proposed litigation.

(c) The appropriate local administrative judge described by Subsection (a) may make a determination on the request with or without a hearing. If the judge determines that a hearing is necessary, the judge may require that the vexatious litigant filing a request under Subsection (b) provide notice of the hearing to all defendants named in the proposed litigation.

(d) The appropriate local administrative judge described by Subsection (a) may grant permission to a vexatious litigant subject to a prefiling order under Section 11.101 to file a litigation only if it appears to the judge that the litigation: (1) has merit; and (2) has not been filed for the purposes of harassment or delay.

(e) The appropriate local administrative judge described by Subsection (a) may condition permission on the furnishing of security for the benefit of the defendant as provided in Subchapter B.

(f) A decision of the appropriate local administrative judge described by Subsection (a) denying a litigant permission to file a litigation under Subsection (d), or conditioning permission to file a litigation on the furnishing of security under Subsection (e), is not grounds for appeal, except that the litigant may apply for a writ of mandamus with the court of appeals not later than the 30th day after the date of the decision. The denial of a writ of mandamus by the court of appeals is not grounds for appeal to the supreme court or court of criminal appeals.

The route out of a denial is mandamus within 30 days, and it stops there.

The public list

CPRC § 11.104 makes the designation visible, and hard to remove:

(a) A clerk of a court shall provide the Office of Court Administration of the Texas Judicial System a copy of any prefiling order issued under Section 11.101 not later than the 30th day after the date the prefiling order is signed. (b) The Office of Court Administration ... shall post on the agency's Internet website a list of vexatious litigants subject to prefiling orders under Section 11.101. On request of a person designated a vexatious litigant, the list shall indicate whether the person ... has filed an appeal of that designation. (c) The Office of Court Administration ... may not remove the name of a vexatious litigant ... from the agency's Internet website unless the office receives a written order from the court that entered the prefiling order or from an appellate court. An order of removal affects only a prefiling order entered ... by the same court.

A person who has appealed can ask for that fact to be shown on the list. And removal is court-ordered and court-specific — one court's reversal does not clear another court's order.

How Texas compares to the federal rules

The federal courts reach similar results through inherent authority; Texas has written the whole thing down, including the count, the deadline, the security, and the register.

A short checklist

• Diary 90 days from your answer or special appearance. The Subchapter B motion has a hard deadline.
• Prove the threshold as well as the history. No reasonable probability of prevailing is a separate element.
• Count carefully: five litigations, seven years, pro se, small claims excluded — and remember that a case left pending two years counts.
• For the relitigation ground, check it is the same defendant.
• Ask for security measured by your expected costs and fees, and get a date set.
• If security is not posted, move to dismiss — the statute says the court shall dismiss as to the moving defendant.
• Know which court you are in. Only a district, statutory county or business court produces a statewide prefiling order.
• If you are subject to an order, copy every named defendant on a permission request.
• A denial is not appealable — mandamus within 30 days is the only route.
• Check the Office of Court Administration list before assuming a plaintiff is free to file.

Where these rules live

• CPRC § 11.051 — Motion to Declare Plaintiff Vexatious Litigant
• CPRC § 11.054 — Criteria for Finding Plaintiff a Vexatious Litigant
• CPRC § 11.055 — Security
• CPRC § 11.056 — Dismissal for Failure to Furnish Security
• CPRC § 11.101 — Prefiling Order; Contempt
• CPRC § 11.102 — Permission by Local Administrative Judge
• CPRC § 11.104 — Notice to Office of Court Administration; List

This page explains what the statute says; it is not legal advice. Chapter 11 reaches only a plaintiff proceeding pro se, and a designation carries consequences well beyond the case it was made in.