Report No. 192
The Civil Practice and Remedies Code, deals with ''vexatious litigant' in Chapter 11.
Section 11.001(1) defines defendant, clause (2) defines 'litigation'; clause (3) defines 'Local Administrative Judge'; Clause (4) defines 'moving defendant'; clause (5) defines 'plaintiff'.
Section 11.051 refers to 'Motion for determining plaintiff a vexatious litigant and requesting security. It states that in a litigation in the 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 the plaintiff is a vexatious litigant; and
(2) requiring the plaintiff to furnish security.
Section 11.052(a), refers to 'stay of proceeding on filing of motion. It states that on the filing of a motion under section 11.051 the litigation is stayed and moving defendant is not required to plead:
(1) if the motion is denied, before the 10th day after the date it is denied; or
(2) if the motion is granted, before the 10th day after the date the moving defendant receives notice that the plaintiff has furnished the required security.
Section 11.052(b) states that on the filing of a motion under section 11.051, on or after the date the trial starts, the litigation is stayed for a period the Court determines.
Section 11.053 refers to the hearing where evidence is taken orally or by affidavit. It reads as follows:
"Section 11.054: Criterion for finding plaintiff a vexatious litigant: It states that 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:
(1) the plaintiff, in the seven year period immediately preceding the date the defendant makes the motion under sec. 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 the state or federal laws or rules of precedence.
(2) After a litigation has been finally determined against the plaintiff, the plaintiff repeatedly re-litigates or attempts to re-litigate, 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, transaction, or occurrence."
Section 11.055 refers to the court ordering 'security' and section 11.056 to the dismissal for failure to furnish security.
Section 11.057 refers to dismissal on merits and says that if the litigation is dismissed on merits, the moving defendant can have recourse to the security furnished by the plaintiff in an amount determined by the Court. Then comes the procedure for 'prohibiting filing of new litigation'. This is stated in section 11.101. It provides for punishment for contempt also. It reads as follows:
"Section 11.101 Prefiling order: contempt:
(a) A court may, on its own motion or the motion of any party, enter an order prohibiting a person from filing, in propria persona, a new litigation in a Court in this State, if the Court finds, after notice and hearing as provided by sub chapter B, that:
(1) the person is a vexatious litigant; and
(2) the local Administrative Judged of the Court in which the person intends to file the litigation has not granted permission to the person under section 11.102 to file the litigation.
(b) A person who disobeys an order under sub section (a) is subject to contempt of Court"
Section 11.102 mentions when permission may be granted by the Judge. It states:
"Section 11.102: Permission by Local Administrative Judge
(a) A local Administrative Judge may grant permission to a person found to be a vexatious litigant under section 11.101 to file a litigation only if it appears to the Judge that the litigation;
(1) has merit; or
(2) has not been filed for the purpose of harassment or delay.
(b)The local Administrative Judge may condition permission on the furnishing of security for the benefit of the defendant as provided in sub Chapter B."
Section 11.103 refers to 'Duties of Clerk: mistaken filing' which is on the same lines as in the California statute.
Section 11.104 refers to notice to office of Court Administrator and dissemination of list of vexatious litigants to the clerks of the Courts of the State.
It will be seen that the peculiarity of the statutes in US is to combine a provision for ordering security from the plaintiff, in addition to declaring him as a vexatious litigant. The statute gives a detailed definition of a vexatious litigant, unlike the general provision under the UK Act of 1981.
Another feature is about stay of proceedings. The statutes provide for dismissal of the litigation if security ordered is not furnished. They also provide for dismissal of case on merits. If the plaintiff who has been declared a vexatious litigant and has been required to obtain prior permission from a Judge before filing a fresh action, disobeys it and files a case without such permission, he can be punished for contempt of Court.
Though the order declaring a person a 'vexatious litigant' is circulated to other Courts, it is possible that by mistake or oversight, the court staff registers a fresh case filed by him without his obtaining prior permission, the said mistake can be rectified and the plaintiff be required to obtain permission, staying the matter. The US statutes also provide recognition of an order passed by Court in another State, declaring a person as a vexatious litigant. These are the special features of the laws relating to vexatious litigation in the States in USA.