In the Interest of E.K.D., a Child v. the State of Texas

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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