§ 11.054.Criteria for Finding Plaintiff a Vexatious Litigant

The criteria, and every route through them runs through the same threshold.

The defendant must show that there is not a reasonable probability that the plaintiff will prevail in the litigation against the defendant — and one of three further things.

The threshold is about the present case, not the plaintiff’s record. A litigant with a long history of failed suits who has now filed a meritorious one is not a vexatious litigant in that case.

The first route is the five-litigation count. In the seven-year period immediately preceding the motion, the plaintiff commenced, prosecuted, or maintained at least five litigations as a pro se litigant, other than in small claims court, that were finally determined adversely to the plaintiff, permitted to remain pending at least two years without being brought to trial or hearing, or determined by a trial or appellate court to be frivolous or groundless.

The second qualifying outcome deserves attention. A suit that sat for two years counts, without any finding that it lacked merit — so a plaintiff who files and does not pursue accumulates qualifying litigations.

Excluding small claims court is deliberate, since that forum exists for people to bring modest claims without a lawyer.

The second route is repeated relitigation. After a litigation is finally determined against the plaintiff, they repeatedly relitigate or attempt to relitigate, pro se, either the validity of the determination or the cause of action, claim, controversy, or any of the issues of fact or law determined — in each case against the same defendant.

No count is specified here; "repeatedly" is the measure, and the same-defendant requirement keeps the route aimed at a campaign against one party.

The third route is a prior designation by a state or federal court in an action based on the same or substantially similar facts, transaction, or occurrence — so a designation elsewhere carries over, but only as to the same underlying dispute.