Dallas Appeals Court Reverses Retaliation Conviction

Today’s Dallas Court of Appeals case of the day is- Lowell Merritt vs. The State of Texas!

What happened? From the opinion.

The events leading up to appellant’s indictment on a felony retaliation charge began in July 2007 when appellant’s neighbor reported that appellant “cussed” his wife. After reviewing the report, a Collin County sheriff’s deputy filed a disorderly conduct complaint against appellant in the Precinct 2 Justice of the Peace Court of Terry Douglas.
While his case was pending in the county court, appellant filed separate pro se lawsuits against his neighbor, the deputy sheriff who filed the complaint, and a witness at the justice court trial, complaining about their conduct in the criminal prosecution. Appellant filed the suits in Judge Douglas’s JP court and sought to recuse the judge. Judge Douglas denied the motion to recuse, and after considering the defendants’ motions for summary judgment, rendered take-nothing judgments. T
Appellant then filed the lawsuit against Judge Douglas that is the basis of this criminal prosecution. In his suit, filed in county court, appellant alleged Judge Douglas violated his rights by refusing to recuse himself and, as damages, sought the amount he sought in his earlier lawsuits as well as the sanctions ordered by Douglas. Days later, Robert Davis, an attorney retained by Collin County to represent Judge Douglas, sent a letter to appellant advising him that Judge Douglas was immune from suit and warning that if appellant did not dismiss the suit, he would seek sanctions.
Appellant was subsequently indicted on a charge of retaliation. The indictment alleged that appellant “intentionally and knowingly harm[ed] and threaten[ed] to harm Terry Douglas, by filing a frivolous lawsuit against him . . . in retaliation for and on account of his service and status as a public servant, to-wit: Justice of the Peace: Precinct Two.”

Basically, this defendant is a jackass and a horrible attorney. It’s not a crime to suck as an attorney. (Fill in joke here). And given the explosion of both pro se litigation (thanks legal zoom) and criminal statutes (thanks Texas GOP), upholding this conviction would have set a dangerous precedent.

How did the court reach their decision? Because it’s not against the law to file a junk lawsuit.

Neither side argues that the act of filing of a frivolous lawsuit is “criminal”; rather, the issue is whether the act is “tortious.” The penal code does not define “tortious.” Where a statutory term is not defined by the Legislature, we ascribe to that term its ordinary meaning. Morrow v. State, 862 S.W.2d 612, 614 (Tex. Crim. App. 1993).
The term “tortious” is defined by Webster’s Dictionary as “implying or involving tort for which the law gives damages.” Webster’s Third Int’l Dictionary 2413 (1981). A tort is defined as “a wrongful act for which a civil action will lie except for one involving breach of contract.” Id. Similarly, Black’s Law Dictionary defines “tortious” as “[w]rongful; of the nature of a tort.” Black’s Law Dictionary 1489 (6th ed. 1990). Further, tort is defined as “[a] private or civil wrong or injury, including action for bad faith breach of contract, for which the court will provide a remedy in the form of an action for damages.” Id.
The State argues that filing a frivolous lawsuit is a “tortious act.” Specifically, the State argues that chapters 9 and 10 of the Texas Civil Practice and Remedies Code both “prohibit filing a pleading or motion that is not based on existing law or a non-frivolous extension of existing law.” The State then concludes that “[b]ecause filing a frivolous lawsuit violates a statutory tort, it is a tortious and thus unlawful act.” We cannot agree.
Chapter 9 of the civil practice and remedies code authorizes sanctions for the filing of groundless pleadings and claims in bad faith or for an improper purpose, such as harassment or to cause unnecessary delay. See Tex. Civ. Prac. & Rem. Code Ann. §§ 9.001-.014 (West 2002). Chapter 10 allows for sanctions for filing pleadings and motions without legal or evidentiary support or for improper purpose. See Tex. Civ. Prac. & Rem. Code Ann. § 10.001-.006 (West 2002).
In other words, the conduct prohibited by these statutes – filing frivolous pleadings or motions – is sanctionable, not tortious. Thus, contrary to the State’s argument otherwise, filing a frivolous lawsuit is not a statutory tort under chapters 9 or 10. The State does not argue that filing a frivolous lawsuit can be the basis for any other statutory or common law tort. Because filing a frivolous lawsuit is not “tortious,” it is not “unlawful” under the penal code definition; consequently, we conclude the alleged conduct in this case cannot serve as the basis for a criminal charge of retaliation.

The reason our State’s criminal justice system is so broken is the asymmetry of responsibility and consequences. State’s actors are the least accountable of all members of society. If you are frivolously arrested, charged, or even wrongfully convicted there is a near 0% chance any State actor will face the slightest inconvenience.

Citizens on the other hand, face unlimited punishment and destruction for their mistakes. If you want to really reform the criminal justice system take a cue from tort reform. Enact some loser pays legislation, allow for summary judgments for crap cases, and cap the damages defendants face for negligence.

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