In Re Commitment of Richard A. Dunsmore v. the State of Texas ( 2023 )

Opinion issued March 7, 2023
In The
Court of Appeals
For The
First District of Texas
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NO. 01-22-00690-CV
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IN RE COMMITMENT OF RICHARD A. DUNSMORE
On Appeal from the 412th Judicial District Court
Brazoria County, Texas
Trial Court Case No. 84023-CV
MEMORANDUM OPINION
Richard A. Dunsmore, proceeding pro se, filed a notice of appeal challenging
the trial court’s order (1) refusing Dunsmore’s request for voluntary recusal and (2)
referring Dunsmore’s recusal motion to the presiding judge of the administrative
judicial region. Appellee, the State of Texas, has filed a motion to dismiss the appeal
for lack of jurisdiction. We grant the State’s motion to dismiss.
Discussion
The State’s motion to dismiss asserts that we lack jurisdiction over the appeal
because (1) the order is interlocutory and an appeal is not authorized; and (2)
Dunsmore is a vexatious litigant subject to a pre-filing order and failed to obtain the
required authorization to pursue this appeal. We agree on both grounds.
The Order Is Not Appealable
Dunsmore filed a notice of appeal challenging the trial court’s interlocutory
order (1) denying Dunsmore’s request for voluntary recusal and (2) referring
Dunsmore’s recusal motion to the presiding judge of the administrative judicial
region. The clerk’s record demonstrates that the administrative judge subsequently
issued an order denying Dunsmore’s recusal motion.
The procedures for recusal of judges, in both civil and criminal cases, are set
out in Texas Rule of Civil Procedure 18a. See Arnold v. State, 853 S.W.2d 543, 544
(Tex. Crim. App. 1993). An order denying a motion to recuse is reviewable only on
appeal from a final judgment. See TEX. R. CIV. P. 18a(j). This rule does not permit
an appeal of an interlocutory order denying a recusal motion. See Neveu v. State,
No. 01–14–00638–CR, 2014 WL 4890720, at *1 (Tex. App.—Houston [1st Dist.]
Sept. 30, 2014, no pet.) (mem. op., not designated for publication). This Court has
jurisdiction to hear appeals from interlocutory orders only in narrow circumstances
not present here. See id.; Means v. State, 825 S.W.2d 260, 260 (Tex. App.—Houston
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[1st Dist.] 1992, no writ) (dismissing for lack of jurisdiction appeal from
interlocutory order denying recusal motion).
Accordingly, because the interlocutory order Dunsmore seeks to appeal is not
one for which an appeal is authorized, we lack jurisdiction over the appeal.
The Appeal Lacks Necessary Approval for Vexatious Litigant
We further lack jurisdiction because Dunsmore has been declared a vexatious
litigant and did not receive the necessary approval to file the appeal.
“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 . . . that the person is a vexatious litigant.” TEX. CIV. PRAC. &
REM. CODE § 11.101(a). A vexatious litigant order signed by a district court applies
to every court in the State of Texas. Id. § 11.101(e).
Dunsmore was declared a vexatious litigant and is the subject of a pre-filing
order signed on December 12, 2018, in In re Commitment of Richard A. Dunsmore,
Cause No. 84023-CV in the 412th District Court of Brazoria County, Texas. See
Office of Court Administration List of Vexatious Litigants Subject to Pre-Filing
Orders under Section 11.101, Civil Practice and Remedies Code, available at
https://www.txcourts.gov/judicial-data/vexatious-litigants (list last updated
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February 8, 2023); see also TEX. CIV. PRAC. & REM. CODE § 11.104(b) (requiring
Office of Court Administration to maintain and post list of vexatious litigants on
agency’s website); Douglas v. Am. Title Co., 196 S.W.3d 876, 878 n.2 (Tex. App.—
Houston [1st Dist.] 2006, no pet.) (taking judicial notice of Harris County record of
vexatious litigants).
The Clerk of this Court may not file an appeal presented by a vexatious litigant
subject to a pre-filing order unless (1) the litigant first obtains an order from the local
administrative judge permitting the filing, or (2) the appeal is from a pre-filing order
designating the person a vexatious litigant. See TEX. CIV. PRAC. & REM. CODE §
11.103(a). Here, Dunsmore is not appealing from a pre-filing order designating him
a vexatious litigant and the record does not contain an order from the local
administrative judge permitting the filing of this appeal. Accordingly, we lack
jurisdiction over the appeal.
Conclusion
For the foregoing reasons, we grant the State’s motion and dismiss this appeal
for want of jurisdiction. We dismiss any other pending motions as moot.
PER CURIAM
Panel consists of Justices Landau, Countiss, and Guerra.
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