CourtListener 10639833•In the Interest of E.K.D., a Child v. the State of Texas
In the Interest of E.K.D., a Child v. the State of Texas
CourtListener 10639833Txctapp723 juil. 2025
Texte intégral
In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-25-00153-CV
IN THE INTEREST OF E.K.D., A CHILD
On Appeal from the 169th District Court
Bell County, Texas1
Trial Court No. 22DFAM335858, Honorable Cari L. Starritt-Burnett, Presiding
July 23, 2025
MEMORANDUM OPINION
Before QUINN, C.J., and DOSS and YARBROUGH, JJ.
Appellant Kailyn Andrews appeals from the trial court’s order designating her a
vexatious litigant and denying her statement of inability to pay costs. The appellee who
filed the motion is Nicholas Denbrock, the father of Andrews’s daughter. We affirm.
1 This appeal was originally filed in the Third Court of Appeals and was transferred to this Court by
a docket-equalization order of the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001. In the
event of any conflict, we apply the transferor court’s case law. TEX. R. APP. P. 41.3.
BACKGROUND
This case arises from a modification suit Andrews filed pro se on December 18,
2024—just three weeks after the trial court rendered a final order in another modification
suit on November 26, 2024.2 Over the next two months, Andrews filed sixteen additional
motions and pleadings. These included multiple emergency motions, amended petitions,
motions to reconsider, motions to stay, and notices claiming constitutional violations.
Andrews also requested electronic access to the child, moved to declare Denbrock a
vexatious litigant, filed special appearances challenging jurisdiction, and demanded
“immediate return of child.”
Andrews filed a declaration of inability to pay costs, claiming $0 monthly income,
$8,165 in monthly expenses, $1,800 in assets, and $118,500 in debt.
Denbrock moved to declare Andrews a vexatious litigant based on her numerous
filings. At the hearing, the trial court asked Andrews to provide documentation supporting
her inability to pay. Andrews initially claimed she received no notice, then stated the trial
court lacked jurisdiction over her. When pressed again, Andrews objected and continued
asserting the court lacked personal jurisdiction.
The trial court found that Andrews refused to present proof of her financial records
and ordered her to pay court costs. The court granted Denbrock’s vexatious litigant
motion and required Andrews to post a security bond or face dismissal with prejudice of
her pending motions. The order prohibits Andrews from filing new pleadings for
2 Andrews’s appeal from that decision is In the Interest of E.K.D., No. 07-24-00342-CV, also
resolved this day.
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affirmative relief as a pro se litigant without first obtaining permission from the local
administrative judge. See TEX. CIV. PRAC. & REM. CODE ANN. § 11.102(a). This appeal
followed.
ANALYSIS
I. Jurisdiction
Denbrock contends this Court lacks jurisdiction because the vexatious litigant
order is not final. However, the Third Court of Appeals has held that interlocutory appeals
from prefiling orders designating a person as a vexatious litigant are permissible.
Serafine v. Crump, 665 S.W.3d 93, 102 (Tex. App.—Austin 2023), rev’d on other grounds,
691 S.W.3d 917 (Tex. 2024). Principles of horizontal stare decisis require this Court to
follow the authority of the Third Court as if we were sitting as that court. See TEX. R. APP.
P. 41.3; Mitschke v. Borromeo, 645 S.W.3d 251, 258 (Tex. 2022). We therefore exercise
jurisdiction over Andrews’s appeal.
II. Vexatious Litigant Designation
Chapter 11 of the Texas Civil Practice and Remedies Code establishes procedures
for designating vexatious litigants. A court may designate a plaintiff as vexatious if the
plaintiff has either: (1) commenced, prosecuted, or maintained five litigations as a pro se
litigant in seven years with additional necessary findings; or (2) after a litigation has been
finally determined against the plaintiff, repeatedly relitigated or attempted to relitigate the
same issues against the same defendant. TEX. CIV. PRAC. & REM. CODE ANN. § 11.054(1),
(2).
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We review the court’s vexatious litigant determination for an abuse of discretion.
Serafine, 665 S.W.3d at 105. Constitutional claims are reviewed de novo. Fontenot v.
Fontenot, 667 S.W.3d 894, 911 (Tex. App.—Houston [14th Dist.] 2023, no pet.).
A. Fundamental Parental Rights
Andrews argues the vexatious litigant designation violates her fundamental
parental rights by preventing her from filing motions to protect her child. We addressed
this argument in Byars v. Evans, concluding that requiring a parent to seek permission
from the local administrative judge before filing affirmative pleadings does not violate due
process because it is not an absolute denial of parental rights. No. 07-14-00064-CV,
2016 Tex. App. LEXIS 201, at *12–14 (Tex. App.—Amarillo Jan. 8, 2016, no pet.) (mem.
op.). Although the Third Court has not precisely addressed this issue, it has generally
recognized that the vexatious litigant scheme does not violate due process. Caldwell v.
Zimmerman, No. 03-18-00168-CV, 2019 Tex. App. LEXIS 2339, at *5–6 (Tex. App.—
Austin Mar. 27, 2019, no pet.) (mem. op.).
Andrews argues that because attorneys have absolute immunity for actions
undertaken while representing clients, parents appearing pro se should have similar
immunity when acting in their child’s best interest. This argument fails for two reasons.
First, the prefiling order does not prohibit Andrews from filing—it requires her to obtain
permission from the local administrative judge before filing new pleadings for affirmative
relief. Second, Andrews misunderstands attorney immunity. Attorney immunity protects
against civil liability to third parties, not against court authority over attorneys. Bethel v.
Quilling, Selander, Lownds, Winslett & Moser, P.C., 595 S.W.3d 651, 657 (Tex. 2020)
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(“We have long recognized . . . that attorney immunity is not boundless.”). Courts retain
full authority to sanction, hold in contempt, or discipline attorneys for inappropriate
conduct. Brewer v. Lennox Hearth Products, LLC, 601 S.W.3d 704, 718 (Tex. 2020) (“A
court’s inherent authority includes the power to discipline an attorney’s behavior.”)
(cleaned up).
Andrews’s first issue is overruled.
First Amendment Right to Petition
Andrews’s entire second issue is stated as: “The First Amendment guarantees the
right to petition courts for redress (BE & K Construction Co. v. NLRB, 536 U.S. 516
(2002)).” This issue is insufficiently briefed. Nevertheless, the Third Court has previously
held that the vexatious litigant scheme does not violate the First Amendment right to
petition. Caldwell, 2019 Tex. App. LEXIS 2339, at *5–6.
Andrews’s second issue is overruled.
Statutory Requirements
By her third issue, Andrews argues she is not a “plaintiff” under the statute and did
not file five frivolous cases in seven years. The statute defines “plaintiff” as “an individual
who commences or maintains a litigation pro se.” TEX. CIV. PRAC. & REM. CODE ANN.
§ 11.001(5) (emphasis added). Andrews meets both definitions: she commenced a
modification proceeding, and she maintained litigation through repeated motions to
reconsider, stay enforcement, or declare orders void.
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Andrews’s challenge is focused on only one basis for the vexatious litigant
finding—five frivolous cases in seven years; she ignores the alternative basis that she
repeatedly attempted to relitigate matters finally determined against her. See id.
§ 11.054(1), (2). In her reply brief, Andrews summarily argues there was no competent
evidence supporting this finding. However, arguments may not be raised for the first time
in a reply brief. See McFadden v. Olesky, 517 S.W.3d 287, 293 n.3 (Tex. App.—Austin
2017, pet. denied).
Andrews’s third issue is overruled.
Inability to Pay
By her fourth issue, Andrews argues the trial court erred by denying her statement
of inability to pay costs and failing to enter findings of fact. Andrews contends her affidavit
conclusively established her inability to pay and was not contradicted by other evidence.
Texas Rule of Civil Procedure 145 permits a party to file a sworn statement of
inability to afford court costs. When the statement is contested, the trial court may require
the declarant to prove inability to pay at an evidentiary hearing with at least ten days of
notice. TEX. R. CIV. P. 145. At the hearing, “the burden is on the declarant to prove the
inability to afford costs.” Id.
The test for indigence is whether the record shows “by a preponderance of the
evidence that the applicant would be unable to pay the costs . . . if [s]he really wanted to
and made a good-faith effort to do so.” Higgins v. Randall Cnty. Sheriff’s Off., 257 S.W.3d
684, 686 (Tex. 2008) (cleaned up). We review for an abuse of discretion. Henderson v.
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Arabzadegan, No. 03-24-00313-CV, 2024 Tex. App. LEXIS 5919, at *5 (Tex. App.—
Austin Aug. 16, 2024, no pet.) (mem. op.).
The trial court provided Andrews with notice and asked her to bring documentation
supporting her indigency affidavit. Andrews refused to provide any documentation,
instead repeatedly asserting that the court lacked jurisdiction. Andrews’s affidavit also
contained contradictory information: she claimed $0 monthly income and only $1,800 in
assets while reporting $8,000 in monthly expenses. The trial court did not abuse its
discretion in requiring Andrews to pay court costs.
Andrews also complains the trial court failed to make findings of fact mandated by
Rule 145. See id. R. 145(f)(2). However, the trial court issued its findings seven days
after Andrews filed her brief, and she made no request to supplement her brief. See TEX.
R. APP. P. 38.7.
Andrews also makes a conclusory argument that the trial court’s ruling violates the
First and Fourteenth Amendments to the U.S. Constitution. This argument consists of a
single quote from a U.S. Supreme Court decision. Missing from the argument is any
analysis of how the trial court’s ruling, or requiring her to pay court costs, violates her
rights. Accordingly, this argument is waived for inadequate briefing. See TEX. R. APP. P.
38.1; RSL Funding, LLC v. Newsome, 569 S.W.3d 116, 126 (Tex. 2018).
Andrews’s fourth issue is overruled.3
3 In a fifth issue, Andrews challenges what she calls the trial court’s “flawed rulings.” Her argument
contains no citations to the record, applicable law, or authority. Andrews fails to identify which specific
ruling she challenges, what relief she seeks, or how any relief could be granted. This issue is waived for
inadequate briefing. TEX. R. APP. P. 38.1; RSL Funding, LLC v. Newsome, 569 S.W.3d 116, 126 (Tex.
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CONCLUSION
Having overruled all of Andrews’s issues, we affirm the trial court’s order.
Lawrence M. Doss
Justice
2018) (“A brief must provide citations or argument and analysis for the contentions and failure to do this
can result in waiver.”).
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