in Re Wayne Ernest Barker

                                 IN THE
                         TENTH COURT OF APPEALS



                                No. 10-11-00444-CV

                       IN RE WAYNE ERNEST BARKER


                                Original Proceeding


                          MEMORANDUM OPINION

      Wayne Ernest Barker, a prison inmate, has presented a petition for writ of

mandamus requesting a mandamus to issue against the Honorable Ken Keeling, Judge

of the 278th District Court in Walker County.

      Barker concedes that he has been found to be a vexatious litigant and is

attempting to file another lawsuit. See TEX. CIV. PRAC. & REM. CODE ANN. § 11.101 (West

Supp. 2011). He claims he sent an original petition on October 24, 2011, to Judge

Keeling, whom Barker alleges is the local administrative judge, to obtain permission to

file the lawsuit. Id. § 11.102. Barker asserts he has not received notice whether Judge

Keeling has granted Barker permission to file the lawsuit.

      There are numerous procedural problems with Barker‟s petition.          We note

initially that Barker did not designate all the parties to this proceeding. Although he
designated the person against whom relief was sought, he did not designate the real

parties in interest—those whose interest would be directly affected by the relief sought.

TEX. R. APP. P. 52.2. Barker contends that he is attempting to file a class action lawsuit

pursuant to the Americans with Disabilities Act. The parties against whom relief is

sought in that lawsuit would be real parties in interest in this mandamus proceeding.

        Further, Barker‟s petition does not contain a table of contents, an index of

authorities, a statement of jurisdiction, or the issues presented. See TEX. R. APP. P. 52.3.

Barker attempts to comply with the certification requirement for the petition by

including an unsworn declaration of facts. See TEX. R. APP. P. 52.3(j). However, there is

a proper form for an inmate to use when preparing an unsworn declaration for use in

lieu of a written sworn declaration. See TEX. CIV. PRAC. & REM. CODE ANN. § 132.001

(West Supp. 2011). Barker did not use that form; thus his unsworn declaration in his

petition is ineffective.

        Barker‟s petition also does not include a certified or sworn copy of his request to

Judge Keeling, the document he is attempting to file, or of the numerous requests he has

supposedly made to bring his request for permission to the attention of Judge Keeling

or inquiries about whether Judge Keeling has ruled on his request. 1 See TEX. R. APP. P.



1 Under a section entitled “Conditions Precedent,” Barker alleges, as best we can determine from his
petition printed in all capital letters with no appreciable space between words and many letters which are
virtually indistinguishable:
                                              Conditions Precedent
         The petitioner mailed a lawsuit entitled “Suit to Enforce the Americans with Disabilities
         Act” directly to the respondent as “Administrative Judge” on October 24, 2011 and over
         the course of that week mailed three writs of injunction as conjoinders and on October 28,
         2011 he mailed a separate action in mandamus to force the institutional parole officer to
         prepare his case for medical parole consideration. To this date, the petitioner has heard


In re Barker                                                                                       Page 2
52.3(k). The petition was also not served properly in that the proof of service does not

indicate the real parties in interest were served. Id. 9.5; 52.2.

          We use Rule 2, however, to look beyond these procedural problems to reach the

merits of the petition. TEX. R. APP. P. 2.

          By sending his lawsuit to Judge Keeling, Barker has effectively requested

permission to file his lawsuit.             After January 1, 2012, mandamus is clearly the

appropriate remedy to contest the denial of permission to file a lawsuit when a litigant

has had a prefiling order rendered against the litigant. See Act of 2011, 82nd Leg., 1st

C.S., ch. 3 (H.B. 79), § 9.03, eff. Jan. 1, 2012 (to be codified at TEX. CIV. PRAC. & REM. CODE

§ 11.102(c)). We also believe that it would be the appropriate remedy under the current

form of the statute as well.

          As stated previously, Barker has conceded that he has been determined to be a

vexatious litigant. However, he does not state whether the trial court rendered an

11.101 prefiling order against him. See TEX. CIV. PRAC. & REM. CODE § 11.101 (West

Supp. 2011). Further, we note that his name does not appear on the Office of Court

Administration‟s list of vexatious litigants with prefiling orders rendered against them.2

Therefore, based on the allegations and record before us, we cannot conclude whether

the trial court has a duty to entertain a prefiling request for permission to file new

litigation. If there is no prefiling order, the trial court has no duty to rule on a request

for permission to file a new proceeding. Such a duty arises only if a prefiling order is

          nothing even after he wrote the 278th clerk three times and the District Clerk twice
          inquiring about the status of his pleadings.

2   See http://www.courts.state.tx.us/oca/vexatiouslitigants.asp.


In re Barker                                                                                     Page 3
rendered. Without a duty to rule on a request for permission to file new litigation, the

trial court could not abuse its discretion in refusing to rule on Barker‟s request.

        Further, Barker‟s petition seeks a writ of mandamus compelling Judge Keeling to

rule on Barker‟s request for permission to file a lawsuit. And although the need to

consider and rule on a properly filed and presented document is not a discretionary act

but a ministerial one, a trial court is allowed a reasonable time within which to perform

that act.      In re Chavez, 

 (Tex. App.—Amarillo 2001, orig.

proceeding). Barker mailed his lawsuit to Judge Keeling only a little more than a month

ago. Even if Judge Keeling had a duty to rule on the request, which we held above he

does not, he has not yet had a reasonable time to decide whether to grant or deny

Barker permission to file his lawsuit.

        For the foregoing reasons, especially in light of the flood of other proceedings

and requests sent by Barker to Judge Keeling,3 Barker‟s petition for writ of mandamus is

denied.

        Barker also presented for filing with this Court a declaration of indigence with

his petition for writ of mandamus. Under the circumstance of this case, we again use

Rule 2 and grant Barker„s request to proceed without the advance payment of cost. TEX.

R. APP. P. 2.



                                                TOM GRAY
                                                Chief Justice

3 In this regard, we note that flooding a trial court and clerk with new proceedings and bombarding them
with inquiries about the status thereof does not accomplish the objective of effectively “presenting the
issue” to the trial court.


In re Barker                                                                                     Page 4
Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Petition denied
Opinion delivered and filed December 21, 2011
[OT06]




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