motion to have victor del rio declared a · pdf filecause no. 2009-17355 victor del rio,...

CAUSE NO. 2009-17355

VICTOR DEL RIO, § IN THE DISTRICT COURT FOR §

Plaintiff, § §

v. § HARRIS COUNTY, TEXAS§

CITY OF HOUSTON, HARRIS § COUNTY, AND TEXAS, §

§ Defendants. § 157 JUDICIAL DISTRICTth

MOTION TO HAVE VICTOR DEL RIO DECLARED A VEXATIOUS LITIGANT, BY DEFENDANTS SPRING INDEPENDENT SCHOOL DISTRICT,

JANET L. HORTON, AND CHRISTOPHER GILBERT

TO THE HONORABLE JUDGE OF THE COURT:

Defendants Spring Independent School District (“SISD” or “District”), Janet L. Horton, and

Christopher Gilbert (hereinafter “Defendants”) move to have Plaintiff Victor Del Rio declared a

vexatious litigant under TEX. CIV. PRAC.& REM. CODE § 11.051 et seq., and would respectfully show

the Court as follows:

I. VEXATIOUS LITIGANT STANDARD

The standard for finding a plaintiff to be a vexatious litigant is set out at Section 11.054 of

the Texas Civil Practices and Remedies Code, and states as follows:

A court may find a plaintiff a vexatious litigant if the defendant shows that there is not areasonable probability that the plaintiff will prevail in the litigation against the defendant andthat:(1) the plaintiff, in the seven-year period immediately preceding the date the defendant

makes the motion under Section 11.051, has commenced, prosecuted, or maintainedin propria persona at least five litigations other than in a small claims court that havebeen:(A) finally determined adversely to the plaintiff;(B) permitted to remain pending at least two years without having been brought

to trial or hearing; or

M OTION TO HAVE VICTOR DEL RIO DECLARED A VEXATIOUS LITIGANT, BY DEFENDANTS

SPRING INDEPENDENT SCHOOL DISTRICT, JANET L. HORTON , AND CHRISTOPHER GILBERT

Filed 09 July 13 P4:49Loren Jackson - District ClerkHarris CountyED101J015455935By: Wanda Chambers

Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=3fb8d7ed-a02d-4a95-97d3-06c6cd3a45e0

(C) determined by a trial or appellate court to be frivolous or groundless understate or federal laws or rules of procedure;

(2) after a litigation has been finally determined against the plaintiff, the plaintiffrepeatedly relitigates or attempts to relitigate, in propria persona, either:(A) the validity of the determination against the same defendant as to whom the

litigation was finally determined; or(B) the cause of action, claim, controversy, or any of the issues of fact or law

determined or concluded by the final determination against the samedefendant as to whom the litigation was finally determined; or

(3) the plaintiff has previously been declared to be a vexatious litigant by a state orfederal court in an action or proceeding based on the same or substantially similarfacts, transition, or occurrence.

TEX. CIV. PRAC. & REM. CODE § 11.054. The Defendants specifically move under subsection (2),

and will show that this lawsuit represents an attempt by Victor Del Rio to relitigate in propria

persona both the validity of a prior determination and the same causes of action and/or claims - as

well as the same issues of fact or law – that were determined or concluded by the final determination

against the Defendants.

II.BACKGROUND FACTS

A. The Special Education Dispute

Plaintiff Victor Del Rio has been engaged in a running dispute with the Spring Independent

School District for a number of years over the education of his son (“N.D.”), who is a special

education student in the District. In 2007, Plaintiff filed for a due process hearing under the

Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. (“IDEA”). A hearing was held

on June 20, 2007, and on August 24, 2007, State Special Education Hearing Officer Olivia B. Ruiz

issued a decision finding for the District and against the Plaintiff on all issues. (See Final Decision

of the Hearing Officer, attached as Exhibit A.) Plaintiff appealed the Final Decision to federal court

on November 19, 2007. (See Original Complaint, attached as Exhibit B.) However, on January 28,




2008, Del Rio informed the Court by letter that he wanted to dismiss his case. (See Exhibit C.) On

February 1, 2008, the Court granted his request and dismissed the case. (See Exhibit D.)

Plaintiff has twice attempted to reopen his IDEA case. On August 18, 2008, he filed an

“Emergency Motion to Reopen” (see Exhibit E), in which he noted that he had already filed another

lawsuit in federal court (the “Werlein Lawsuit,” to be discussed below). As he did in the Werlein

lawsuit, Del Rio made an outrageous allegation that a conspiracy existed between his ex-wife

(Tracey Del Rio) and Denise Drexler, the Executive Director of Special Education at Spring ISD:

02. I now realize that Tracey has been working secretly with Denise Drexler, tointentional debilitate him, though Abuse and Denial of his Free AppropriateEducation, for a Social Security Disability Check after Child Support ends andrevenue for S.I.S.D. until he eventually graduates at age 25.

(Id. at p. 2.) Del Rio alleged that a conspiracy exists to harass and retaliation against him by

burglarizing his home, keeping him under surveillance, trying to abduct him and “possibly

murdered” him while he slept. (Id.) The Court denied Del Rio’s first request that the case be

reopened on September 2, 2008. (See Exhibit F.)

On January 16, 2009, Del Rio made his second attempt to reopen his IDEA case, filing a

“Motion for Leave to Reopen and File Amended Complaints.” (See Exhibit G.) At the same time,

Del Rio filed an Amended Complaint (see Exhibit H), which listed as Defendants “Texas Attorney

General Greg Abbott et al” and seemed to completely abandon his IDEA 2004 and ADA claims from

his Original Complaint, instead asserting a claim under the Racketeer Influenced and Corrupt

Organizations Act (“RICO”). He also filed a “Motion to File RICO Case Statement” at the same

time. (See Exhibit I.) Magistrate Judge John Froeschner set a hearing for February 6, 2008 to

consider whether to reopen the case or not, but after Del Rio failed to attend the hearing, the

Magistrate denied permission to reopen the case. (See Exhibit J.)




B. Del Rio v. Drexler (the Werlein Lawsuit) - Round One.

On July 30, 2008, Del Rio filed a second lawsuit in federal court (Exhibit K), against Denise

Drexler and Tracey Del Rio, which was assigned to United States District Judge Ewing Werlein

(hereinafter the “Werlein lawsuit”). The lawsuit makes the same outrageous factual conspiracy

claim that Del Rio would assert a month later when he first tried to reopen his IDEA lawsuit – that

Drexler and Tracey Del Rio were trying to debilitate Del Rio’s son to gain Social Security disability

payments for Tracey Del Rio and special education revenue for Spring ISD – and then appears to

assert causes of action for cruel and unusual punishment, “torment”, denial of right to medical care,

fraud, denial of access to courts, and warrantless surveillance. On October 23, 2008, Del Rio filed

an Amended Complaint (Exhibit L) in which he only named Tracey Del Rio and her attorney,

Elizabeth Pagel. Although it is very hard to tell what the causes of action are in the Amended

Complaint, it is very much a collateral attack on the ongoing family court and custody proceedings

and on the educational services bring provided to Del Rio’s son.

Dismissing Denise Drexler from the Werlein lawsuit: After Del Rio filed the Amended

Complaint that omitted Denise Drexler from the caption of the lawsuit and dropped all factual

allegations against her, counsel for Defendant Drexler contacted Del Rio and inquired whether he

had intended to drop Defendant Drexler from the lawsuit by omitting her from the Amended

Complaint. Although Del Rio had claimed in the past that Mr. Gilbert threatened or coerced him

into dropping the lawsuit, the entire dialog was done by email (Exhibit M); at no time did Mr.

Gilbert and Mr. Del Rio talk by phone about the dismissal. (See Affidavit of Christopher B. Gilbert,1

attached as Exhibit N.) As can be seen from Exhibits M & N, at no time did Mr. Gilbert threaten

Mr. Del Rio did leave Mr. Gilbert one voicemail over a weekend, which is mentioned in Mr. Gilbert’s1

November 3, 2008 email. However, at no time did Mr. Gilbert actually talk to Mr. Del Rio, so the email are a complete

record of what Mr. Gilbert said to Mr. Del Rio. (Ex. N.)




or coerce Mr. Del Rio. Although Mr. Del Rio kept trying to get the District to agree to somehow

help him get custody of his child back, Mr. Gilbert simply repeated that he was not authorized to

engage in settlement talks with Mr. Del Rio and could not help him with his custody issues even if

he was, since neither Spring ISD nor Ms. Drexler had any authority over the custody of Del Rio’s

son - all Mr. Gilbert was trying to do was ascertain whether Mr. Del Rio intended to drop Denise

Drexler from the lawsuit by omitting her from the Amended Complaint. Mr. Del Rio finally agreed

to dismiss Ms. Drexler; the parties filed their Stipulation of Dismissal on November 6, 2008 (Exhibit

O), and Judge Werlein granted it on November 13, 2008. (Exhibit P.)

The “Final” Dismissal of the Werlein Lawsuit: On December 2, 2008, in the wake of the

dismissal of Denise Drexler from the lawsuit, Del Rio filed a “Petition for Judicial Review” (Exhibit

Q), which made it very clear that Del Rio was challenging the Final Order entered in his state court

custody dispute on November 3, 2008. Accordingly, on December 12, 2008, Judge Werlein

dismissed the lawsuit, finding that he did not have jurisdiction to hear a collateral attack on a state

court order. (Exhibit R.)

C. The State Court Custody Litigation

On October 30, 2008, a hearing was held before Judge Doug Warne in the 311 Judicialth

District Court in Harris County, which has continuing jurisdiction over the custody of the Del Rios’

son under TEX. FAMILY CODE § 152.202. (Exhibit S.) Despite being properly notified about the

hearing, Del Rio failed to attend. (Id.) On November 3, 2008, Judge Warne entered the Final Order,

which in essence deprived Del Rio of all visitation rights unless agreed to by Tracey Del Rio, and

vested exclusive power in Tracey Del Rio to make educational and legal decisions for their son. (Id.)

The Final Orders were not properly appealed, and on January 22, 2009 Judge Warne dismissed the2

Del Rio did file a habeas corpus action in the First Court of Appeals on December 18, 2008. (Exhibit T.) 2

However, that action was dismissed for want of jurisdiction on March 26, 2009. (Id.)




case. (Exhibit U.) By law, this lawsuit is the Suit Affecting Parent Child Relationship (“SAPCR”)

case for the Del Rios and their son. See TEX. FAMILY CODE § 155.001 to § 155.003.

D. Del Rio’s Attacks on the Family Court Order

Since Judge Warne entered the Final Order limiting Del Rio’s rights over his son, Del Rio

has filed numerous lawsuits all over the country, naming as Defendants anyone and everyone who

has been involved with his son. An Appendix summarizing his lawsuits is attached as Appendix A.

He filed his first lawsuit against Judge Warne himself on December 3, 2008 in – for some

inexplicable reason – the United States District Court for the Western District of Pennsylvania. (See

Exhibit V.) He then attempted to remove his family court action from Harris County to the federal3

district court in the Northern District of Texas in Dallas. (Exhibit X.) After the Northern District

transferred it to the Southern District (Exhibit Y), it was dismissed by United States District Judge

Hoyt on February 11, 2009. (Exhibit Z.)

Del Rio then attempted to file an original action in the United States Supreme Court on or

about February 14, 2009, naming as Defendants Tracey Del Rio, Dr. Gurney Pearsall, Dr. Douglas

Lacour, Meyer Center at Texas Children’s Hospital, Denise Drexler, Elizabeth Pagel, Janet Horton,

Christopher Gilbert, Jeffrey Horner, Rep. Debbie Riddle, Hon. Doug Warne & US Senator John

Cornyn. (Exhibit AA.) Dr. Pearsall and Dr. Lacour are doctors at Texas Children’s Hospital who

have treated Del Rio’s son in the past; Elizabeth Pagel is Tracey Del Rio’s lawyer; Janet Horton and

Christopher Gilbert are Denise Drexler’s lawyers; Jeffrey Horner was the former section head for

Ms. Horton and Mr. Gilbert at their old law firm (Defendants have no idea why he was named);

Debbie Riddle is the State Representative for the District in which the Defendants assume Del Rio

lives. It is the understanding of Mr. Gilbert from a conversation that he had with the Supreme Court

The Magistrate in the Pennsylvania litigation recently entered a Recommendation to Dismiss the case for Want3

of Prosecution; that recommendation is currently pending. (Exhibit W.)




clerk’s office that the Court rejected Del Rio’s filing as improper without ever docketing the case.

(Ex. N.)

Shortly after learning that his Supreme Court lawsuit had been rejected, Del Rio filed an

“Emergency Petition for Writ of Mandamus and Habeas Corpus” in federal court in the Southern

District of Texas on February 24, 2009 and requested permission to proceed in forma pauperis.

(Exhibit BB.) Judge Hughes denied Mr. Del Rio in forma pauperis status on February 27, 2009,4

ruling that Del Rio had already had his day in court on the issues of his custody and the education

of his son. (Exhibit CC.) Judge Hughes warned Del Rio that he could not file any more lawsuits

in the Southern District without first paying costs. (Id.)

Del Rio next filed a case on March 3, 2009 in the Court of Federal Claims in Washington

D.C (the “CFC case”) against the “USA.” (Exhibit DD.) The CFC case, to the best of the

Defendants’ knowledge, does not formally name Spring ISD, Denise Drexler, Janet Horton or

Christopher Gilbert as defendants. However, the undersigned counsel for the Defendants spoke

briefly with the Department of Justice attorney who is representing the USA in the CFC case, and

he confirmed that it contains the same conspiracy allegations as all of the Plaintiff’s other cases.

(Ex. N.) According to PACER, this case was dismissed June 26, 2009 for want of subject matter

jurisdiction.

On March 16, 2009, Del Rio initiated a lawsuit in state court in Travis County, Texas on

under Docket No. D-1-GN-09-000882 against the following Defendants: Denise Drexler, Doug

Craig Warne, Ellen Shelton, Tracey Del Rio, Lois Hill, Kim Carter, Don Carter, Joan Hill, Sara

Stopoli, Kirsten Omelan, Cornelius Phelps, Olivia Ruiz, Dr. Douglas LaCour, Dr. Isabella Iovino,

Dr. Sherry Vinson-Sellers, Mayson Mead-Planck, Brenda Evans Hart, Dr. Gurney Pearsall MD,

The actual “Emergency Petition for Writ of Mandamus and Habeas Corpus” is restricted on the PACER system4

and Defendants therefore do not have a copy of it.




Brenda Caeser & Stephanie Hightower, Harris County District Attorney Pat Lykos, Harris County

District Judge Ed Emmett, Harris County Constables Office, Harris County Sheriffs Department, and

Ralph Draper. Denise Drexler, Sara Stopoli, Kirsten Omelan, Cornelius Phelps, and Ralph Draper.

(Exhibit EE.) The lawsuit asserts claims under RICO, as well as the First, Fourth, Fifth, Sixth,

Eighth, Ninth, and Fourteenth Amendments to the United States Constitution, asserted pursuant to

42 U.S.C. § 1983. This lawsuit was removed to the United States District Court for the Western

District of Texas, Austin Division on April 1, 2009, and transferred to the Southern District of Texas

on May 15, 2009. This lawsuit shall be referred to as the “Western District lawsuit.”

On March 19, 2009, Del Rio filed this lawsuit in state court in Harris County, Texas, making

allegations very similar to those in his Western District lawsuit. Although captioned “Del Rio v.

City of Houston, Harris County, and State of Texas,” the Petition itself lists as Defendants the

following: Spring ISD, 1 Court of Appeals, Family Court 311 Harris County, Office of thest

Attorney General, Office of the Harris County District Attorney, State Bar of Texas, Texas Medical

Board, Texas Education Agency, Region IV Education Service Center, Texas Children’s Protective

Services, Meyer Center at Texas Children’s Hospital, including Dr. Douglas LaCour, Baylor College

of Medicine, Dr. Fernando Scaglia, Cole Speech and Language Center, Dr. Balbir V. Singh, Dr.

Lawrence D. Ginsberg MD, Bracewell & Giuliani LLP, Attorneys Janet L. Horton and Christopher

Gilbert, Baker Hughes Business Support Services (BHI), A.D.T. (ADT), Comcast, Sprint, Verizon

Wireless, Gregory & Gregory Family Law, “and more not listed here.” Again, the theme of the

lawsuit is the alleged conspiracy between Tracey Del Rio and Denise Drexler (who curiously is not

named as a Defendant): the first sentence of the fact section reads “Since 1996, Tracey Del Rio and

her immediate family … have been conspiring to debilitate Nicholas Del Rio into mental retardation

for personal gain in collusion with Denise Drexler of Spring ISD….” He claims that the Defendants




have engaged in “tortious predicate acts” and seems to be asserting a claim under the Fourteenth

Amendment and 42 U.S.C. § 1983.

After the Travis County lawsuit was removed to federal court in the Western District, Del

Rio apparently decided to abandon Texas altogether and head east. On April 7, 2009, Del Rio filed

a complaint in the District Court for the District of Columbia (which was not officially filed until

May 4, 2009, the same day that it was posted to PACER). (Exhibit FF.) The suit was filed against

the exact same list of Defendants as the Travis County/Western District lawsuit and asserts the same5

RICO conspiracy claims as that lawsuit. (Id.)

The very next day, on April 8, 2009, Del Rio filed a second lawsuit in the District Court for

the District of Columbia (which again does not appear to have been officially posted until May 4,

2009, the same day that it was posted to PACER). (Exhibit GG.) The Complaint filed in this

lawsuit actually is the Original Petition that Del Rio filed in Travis County and that was removed

to the Western District – including the fact that the document actually has “Travis County District

Court, 201 Judicial District” typed at the top of the document, which the Plaintiff then crossed outst

and wrote “In the United States District Court, District of Columbia” over by hand. It asserts the6

same claims against the same defendants as the Western District lawsuit and – for the most part –

the first District of Columbia lawsuit. Both District of Columbia lawsuits were transferred sua

sponte to the Southern District of Texas on May 4, 2009. (Exhibit HH.)

Denise Drexler, Doug Craig Warne, Ellen Shelton, Tracey Del Rio, Lois Hill, Kim Carter, Don Carter, Joan5

Hill, Sara Stopoli, Kirsten Omelan, Cornelius Phelps, Olivia Ruiz, Dr. Douglas LaCour, Dr. Isabella Iovino, Dr. Sherry

Vinson-Sellers, Mayson Mead-Planck, Brenda Evans Hart, Dr. Gurney Pearsall MD, Brenda Caeser & Stephanie

Hightower, Harris County District Attorney Pat Lykos, Harris County District Judge Ed Emmett, Harris County

Constables Office, Harris County Sheriffs Department, and Ralph Draper. Denise Drexler, Sara Stopoli, Kirsten Omelan,

Cornelius Phelps, and Ralph Draper.

The only difference between the Original Petition filed in Travis County, and the Original Complaint filed in6

Cause No. 1:09-cv-00808 in the District of Columbia, is that District of Columbia pleading adds Attorney General Greg

Abbott as the first named Defendant.




On April 10, 2009, Del Rio filed an “Emergency Petition for Writs of Mandamus and

Prohibition, and Other Extraordinary Writs” directly with the Fifth Circuit Court of Appeals.

(Exhibit I I.) The Petition seeks custody of his son and asserts the same RICO conspiracy allegations

as all of his other lawsuits. It names as “Defendants” the same list of Defendants as the Travis

County/Western District lawsuit and the two District of Columbia case (minus Greg Abbott). The

Court denied all writs on June 3, 2009. (Exhibit JJ.)

Lastly, on May 4, 2009, Plaintiff attempted to reopen the Werlein lawsuit in the Southern

District (Cause No. 08-CV-2366) by filing two new pleadings entitled “Petition for Emergency

Relief - Custody” (Exhibit KK) and “Amended Complaint.” (Exhibit LL.) As can be seen from the

two pleadings, the Defendants he seeks to sue in the reopened Southern District lawsuit are all

Defendants in this lawsuit (with the exception of the United States.) In addition, the claims he seeks

to assert in the reopened Southern District lawsuit are roughly analogous to the claims he is asserting

here (considering that they all arise from the alleged conspiracy to deprive Plaintiff of the custody

of his son). Judge Werlein rejected the attempt to reopen the case on May 14, 2009. (Exhibit MM.)




III.ARGUMENT AND AUTHORITIES

Although Del Rio’s thirteen lawsuits (depending on how you count them) assert different

causes of action against a host of different Defendants, at heart each one is a direct challenge to the

custody order entered by Judge Doug Warne on November 3, 2008 in the SAPCR lawsuit, and most

feature a secondary challenge to the education of the Plaintiff’s son by Spring ISD. This lawsuit

specifically seeks custody of Nicholas as relief (Original Petition, ¶ 6); and complains about his

education at Spring ISD (see, e.,g., Amended Petition, Section C, Count 1). This lawsuit is factually

based on the same outrageous allegation that a conspiracy exists between his ex-wife (Tracey Del

Rio) and Denise Drexler, the Executive Director of Special Education at Spring ISD that shows up

in pretty much all of Del Rio’s lawsuits:

Since 1996, Tracey Del Rio and her immediate family of Lois Hill, Don Carter, KimCarter, and Joan Hill, have been conspiring to debilitate Nicholas Del Rio into mentalretardation for personal gain in collusion with Denise Drexler of Spring ISD, FamilyCourt 311, Dr. Gurney Pearsall, and others as necessary to continue their success andsubterfuge as an 'association in fact' enterprise.

(Original Petition, ¶ 4.) The alleged financial reason for this conspiracy is more fully spelled out in

the first lawsuit Del Rio filed against Denise Drexler in Judge Werlein’s court:

Tracey Del Rio and Denise Drexler collaborated with others to almost kill N. anddebilitate him with brain damage ... by drowning him at a YMCA located in Spring,Tx. They conspired to:01 secure disability income for Tracey after child support payment ended when N.turned 18 years of age,02 ensure special education funding for SISD until they could no longer detain N. forgraduation at 25 years of age, 03 remove any risk for providing N. his legal right to an IDEA 2004 compliant FreeAppropriate Public Education....

(Exhibit K, p. 3 of 10.)

While the Defendants can understand that Mr. Del Rio is upset about losing custody of his

son, the manner in which he has gone about “challenging” that decision is reprehensible and cannot




be allowed to continue. Mr. Del Rio has filed lawsuit after lawsuit against the same people, raising

the same claims, many of which are filed in obviously improper courts (three different federal courts

have had to transfer Del Rio’s cases back to the Southern District of Texas – two of those courts

acting sua sponte – and the Court of Federal Claims in Washington D.C dismissed its case for want

of subject matter jurisdiction). Del Rio then rarely pursues or cooperates in any of his lawsuits. The

magistrate in the Pennsylvania case has recommended that that case be dismissed for want of

prosecution, noting that Del Rio failed to respond to show cause request. (Ex. W.) The Southern

District refused to reopen Del Rio’s case at Del Rio’s request when Del Rio failed to show up for

a hearing on his own motion. (Ex. J.) In this case, Del Rio refused to attend his own deposition,

leading to a Motion to Compel that is currently pending. In addition, Del Rio has sent threatening

emails to the Spring ISD Defendants, accused them of crazy crimes, such as “treason” and “social

eugenics,” and accused them of being “white supremacists” and belonging to organizations such as

“Project Paperclip” (which, according to Wikipedia.com, was the name of the effort by the United

States to recruit German scientists after the fall of Nazi Germany). All because they “refused” to

cooperate with Del Rio in getting custody of his son back – which the Spring ISD Defendants have

repeatedly told Del Rio they have no power to do.

Defendants Spring Independent School District, Janet L. Horton, and Christopher Gilbert

assert that Plaintiff Victor Del Rio meets the definition of a vexatious litigant under TEX. CIV. PRAC.

& REM. CODE § 11.054, as follows:

A. No Reasonable Probability that Del Rio Will Prevail in this Litigation

The Defendants assert that there is not a reasonable probability that the plaintiff will prevail

in the litigation against the Defendants for several reasons. First of all, this case is an impermissible

collateral attack on Judge Warne’s November 3, 2008 Final Order in the custody case. As such, it




is little different than the case of Henderson v. Chambers, 208 S.W.3d 546 (Tex.App.–Austin 2006,

no pet.), in which a wife brought suit claiming that her ex-husband and his attorneys had conspired

against her to defraud her of her community property interests in various marriage assets. The Court

dismissed the suit in the grounds that the lawsuit was an impermissible collateral attack on the

divorce decree. In doing so, the Court has this to say about the collateral attack doctrine:

Collateral attacks on final judgments are generally disallowed because it is the policyof the law to give finality to the judgments of the courts. Tice v. City of Pasadena,767 S.W.2d 700, 703 (Tex.1989) (quoting Crouch v. McGaw, 134 Tex. 633, 138S.W.2d 94, 96 (1940)). A collateral attack, unlike a direct attack, does not attemptto secure the rendition of a single, correct judgment in place of the former judgment.Ramsey v. Ramsey, 19 S.W.3d 548, 552 (Tex.App.-Austin 2000, no pet.). Rather, itis an attempt to avoid the effect of a judgment in a proceeding not instituted for thepurpose of correcting, modifying, or vacating the judgment, but in order to obtainsome specific relief which the judgment currently stands as a bar against. See id., seealso Biaza v. Simon, 879 S.W.2d 349, 353 (Tex.App.-Houston [14th Dist.] 1994, writdenied). Only a void judgment may be collaterally attacked. Browning v. Placke, 698S.W.2d 362, 363 (Tex.1985). A judgment is void only when it is apparent that thecourt rendering judgment “had no jurisdiction of the parties or property, nojurisdiction of the subject matter, no jurisdiction to enter the particular judgment, orno capacity to act.” Id. (citing Austin Indep. Sch. Dist. v. Sierra Club, 495 S.W.2d878, 881 (Tex.1973)).

Id. at 549-50. See also Garza v. Fleming, 323 S.W.2d 152 (Tex.Civ.App.–San Antonio 1959, writ

ref’d n.r.e.).

In this case, there can be little doubt that the 311 Family Court had jurisdiction to render ath

decision on the custody of the Del Rios’ son as part of the divorce proceedings. In such cases, the

311 Family Court had exclusive continuing jurisdiction over the custody of the Del Rios’ son underth

the Family Code:

EXCLUSIVE CONTINUING JURISDICTION. (a) Except as otherwise provided in Section 152.204, a court of this state which

has made a child custody determination consistent with Section 152.201 or152.203 has exclusive continuing jurisdiction over the determination until:(1) a court of this state determines that neither the child, nor the child and

one parent, nor the child and a person acting as a parent, have asignificant connection with this state and that substantial evidence is




no longer available in this state concerning the child's care,protection, training, and personal relationships; or

(2) a court of this state or a court of another state determines that thechild, the child's parents, and any person acting as a parent do notpresently reside in this state.

TEX. FAMILY CODE § 152.202. As such, the filing of the lawsuit in this Court is an impermissible

collateral attack on the November 3, 2008 Final Order.

Additionally, this lawsuit constitutes an impermissible collateral attack on the February 1,

2008 order dismissing the Plaintiff’s IDEA case. In order to challenge his son’s special education

designation or programs, Plaintiff must first properly exhaust his administrative remedies by

requesting a special education due process hearing, as required by the IDEA. See 20 U.S.C.

§ 1415(l) ("before the filing of a civil action under such laws seeking relief that is also available

under this subchapter, the procedures under subsections (f) and (g) shall be exhausted to the same

extent as would be required had the action been brought under this subchapter."); see also Gardner

v. School Bd. Caddo Parish, 958 F.2d 108, 111 (5th Cir. 1992). As the Eastern District of Texas

noted in a case interpreting Gardner, a parent must bring exhaust the administrative remedies of the

IDEA if their claims would be covered by the IDEA, regardless of what claims (i.e. Section 1983)

the parent asserts or what relief they seek. Doe v. S & S Consol. Indep. Sch. Dist., 149 F.Supp.2d

274, 304 (E.D. Tex. 2001).

In this case, Del Rio did request a due process hearing; it was held on June 20, 2007; and on

August 24, 2007, the hearing officer issued a decision finding for the District and against Del Rio

on all issues. (Ex. A.) Del Rio appealed the decision to federal court on November 19, 2007 (Ex.

B), but then dismissed it himself on January 28, 2008. (Ex. C.) Although the dismissal was without

prejudice (Ex. D), the statutory limitations period for challenging a special education hearing officer

decision is 90 days, see 20 U.S.C. § 1415(i)(2)(B), so the August 24, 2007 decision is final for all




purposes. Moreover, since November 3, 2008 – before this lawsuit or any of Del Rio’s other current

lawsuits were filed – Del Rio has not had the legal authority to make educational decisions on behalf

of his son, or to file legal actions on his behalf, since the Family Court removed those rights in its

Final Order.

In addition, there is not a reasonable probability that Del Rio will prevail in the litigation

against the Defendants on substantive grounds. Although Del Rio claims that Denise Drexler

conspired with his ex-wife to have his son drowned at the YMCA in 2000, Denise Drexler was not

the Executive Director of Special Education for Spring ISD in 2000, and did not meet or have

anything to do with the Del Rio family until several years after that. (Affidavit of Denise Drexler,

attached as Exhibit NN.) Moreover, the financial basis for Del Rio’s alleged “conspiracy” – that

Drexler sought to render and keep N. Del Rio disabled to “ensure special education funding for SISD

until they could no longer detain N. for graduation at 25 years of age” (Original Complaint, p. 3 of

10) makes no sense; although Spring ISD does receive federal and state funding for a special

education student like Del Rio’s son, that funding does not cover all the expenses the District incurs

for such students, especially a student who has a fairly involved disability like autism. (Ex. NN.)

The bottom line, then, is that having N. Del Rio in the District as a special education student costs

the District money, because it must spend local funds to make up for what the state and federal funds

do not cover. (Id.) Assuming that there was ever a “conspiracy” to injure N. Del Rio or “debilitate

Nicholas Del Rio into mental retardation” – an allegation by the Plaintiff that the Defendants

seriously doubt – then Denise Drexler had every financial reason to not join that conspiracy, since

having N. Del Rio as a special education student has cost the District money, not made it money.

(Id.)




Finally, none of the Spring ISD Defendants – including Denise Drexler, Janet Horton, and

Chris Gilbert – are part of any conspiracy to deprive Victor Del Rio of custody of his son. (Ex. N,

NN, and OO.) Ms. Drexler, Ms. Horton and Mr. Gilbert are committed to following any orders from

the 311 District Court (or any other court) regarding the issues of who has custody of or theth

authority over N. Del Rio for educational and legal issues. (Id.) Neither Ms. Drexler, Ms. Horton

nor Mr. Gilbert have sought to influence the 311 District Court’s decision regarding custody or anyth

other issue. (Id.) Neither Ms. Drexler nor Ms. Horton have ever spoken with or met Judge Warne

of the 311 District Court. (Exs. NN, OO.) Mr. Gilbert has had one telephone conversation withth

Judge Warne, which occurred in March 2009 – more than five months after the Final Order was

entered terminating Del Rio’s custody rights – which Mr. Gilbert initiated as a professional courtesy

simply to let Judge Warne know that Mr. Gilbert was removing a case that Mr. Del Rio filed in state

court in Travis County to federal court (Judge Warne was a named defendant in that lawsuit,

although he remains unserved to this day). (Ex. N.)

Ms. Horton has never, to the best of her knowledge, spoken directly to Tracey Del Rio

(unless it was to exchange pleasantries with her at any meeting at which they both might have been

present). (Ex. OO.) Mr. Gilbert has met Ms. Del Rio once, at the October 30, 2008 hearing in the

311 Court, at which time they engaged in small talk about the hearing. (Ex. N.) Ms. Drexler, asth

the Executive Director of Special Education, has obviously had numerous conversations about N.

Del Rio’s education with Tracey Del Rio. (Ex. NN.) They have at times discussed which parent had

or has custody of N Del Rio, and which parent was or is empowered to make education and legal

decisions for their son – which is something school districts must unfortunately discuss with all

divorced parents. (Id.) However, at no time has Denise Drexler sought to influence any custody

decisions regarding N. Del Rio. (Id.) As discussed above, she certainly has not conspired with




Tracey Del Rio or anyone else to take away any of Victor Del Rio’s rights as a parent of N. Del Rio.

(Id.)

With regards to Elizabeth Pagel (Tracey Del Rio’s attorney), both Janet Horton and Chris

Gilbert have communicated with Ms. Pagel in their capacities as attorneys for Spring ISD, regarding

the status of the custody dispute between Victor and Tracey Del Rio, so that they could properly

advise the District as to which parent had the right to make education decisions for N. Del Rio. (Exs.

N, OO.) However, neither sought to influence the custody dispute between Victor and Tracey in

any way. (Id.) Mr. Gilbert has spoken with Ms. Pagel on several occasions since Mr. Del Rio

started filing all his lawsuits in December 2008/January 2009, regarding those lawsuits, but that was

all post-Final Order. Ms. Drexler has never spoken with Ms. Pagel, to the best of her recollection.

(Ex. NN.)

With regards to the hearing on October 30, 2008 at which the judge of the 311 Family Courtth

essentially removed Victor Del Rio’s parental rights, neither Ms. Drexler nor Ms. Horton were

present at that hearing. (Exs. NN, OO.) Mr. Gilbert was present at that hearing, but only because

he was there to advise the one Spring ISD employee who had been subpoenaed by Tracey Del Rio

to attend. (Ex. N.) The Spring ISD employee was not Denise Drexler; her identity is ultimately

irrelevant, because she ended up not testifying at all, since Victor Del Rio never showed up for the

hearing. (Id.) Neither Mr. Gilbert nor the Spring ISD employee said anything to the judge during

the hearing; they just sat in the back of the courtroom and watched. (Id.)

The bottom line is this: neither Denise Drexler (nor anyone else at Spring ISD), Janet Horton,

or Chris Gilbert played any role in Victor Del Rio losing custody of his son at the October 30, 2008

hearing. Mr. Del Rio lost that hearing because he did not show up! Ms. Drexler, Ms. Horton, and

Mr. Gilbert are not part of any conspiracy to do anything to Victor Del Rio. The allegation that




anyone at Spring ISD is conspiring to keep N. Del Rio in special education because they make

money off him being there is ludicrous; because state and federal special education dollars do not

cover all of the costs of educating N. Del Rio, the District must spend its own money (i.e. local

funds) to cover at least part of his special education costs. Put bluntly, the District loses money

having N. Del Rio in special education. Mr. Del Rio has and cannot present any evidence to the

contrary.

B. Victor Del Rio is attempting to relitigate in propria persona both the validity of a priordetermination and the same causes of action and/or claims - as well as the same issuesof fact or law – that were determined or concluded by the final determination againstthe Defendants.

As discussed above, Mr. Del Rio has sought to challenge the validity of the Final Orders

entered in his child custody case, and the educational plan for his son, in at least ten different

lawsuits other than this one, despite the fact that both of those decisions are final. The November

3, 2008 Final Order became final when Judge Warne dismissed the case on January 22, 2009 and

it was never appealed. The decision rejecting his attack on his son’s special education program

became final when Del Rio himself dismissed his appeal on January 28, 2008 – and Judge Werlein

has twice rejected attempts by Del Rio to reopen that case.

Most of the same outrageous allegations that Mr. Del Rio makes against Denise Drexler and

the various persons affiliated with Spring ISD were originally made in the Werlein Lawsuit in 2008,

which begins with the following factual allegations:

Tracey Del Rio and Denise Drexler collaborated with others to almost kill N. anddebilitate hm with brain damage (later diagnosed as Encephalopathy NOS, AutismPDD NOS, or Auditory Processing Disorder by co-conspirators at Texas Children’sHospital) by drowning him at a YMCA located in Spring, Tx. They conspired to:01 secure disability income for Tracey after child support payment ended when N.turned 18 years of age,02 ensure special education funding for SISD until they could no longer detain N.for graduation at 25 years of age,




03 remove any risk for providing N. his legal right to an IDEA 2004 compliant FreeAppropriate Public Education....

(Ex. K, p. 3.) Del Rio alleged that the conspiracy involved “tormenting” him and his son, denying

them access to the courts, “warrantless surveillance” (id.), as well as “plotting to have me

committed” and arranging to have his neighbors spy on him (id. at p. 6) – the same kind of factual

allegations made in this lawsuit. These issues were concluded by the final determination in the

Werlein litigation. (Exs. P, R.)

Likewise, the 2007 due process hearing addressed many of the same claims that Del Rio

makes in his lawsuits about his son’s education - including the claim that the District is not properly

working with Del Rio to ensure that his son can become a comic book artist after graduating from

high school. (See Ex. A, p. 1.) More importantly, the hearing officer found that Del Rio’s son’s

education plan for the 2007-2008 school year (the last year that Del Rio properly challenged) was

appropriate under the IDEA:

The Hearing Officer finds that the 2007-2008 proposed program is individualized toaddress N.D’s identified needs, and is provided in the least restrictive environmentthat would allow N.D. to achieve a meaningful educational benefit.

(Id. at p. 9.) The decision by the Hearing Officer that N. Del Rio’s education met the requirements

of the IDEA is a final decision, as Del Rio himself dismissed the federal appeal (Exs. C & D), and

the statutory limitations period for challenging a special education hearing officer decision is 90

days. 20 U.S.C. § 1415(i)(2)(B).

IV.SECURITY

Pursuant to TEX. CIV. PRAC. & REM. CODE § 11.051, the Defendants move the court for an

order requiring Plaintiff Victor Del Rio to furnish security. Because the security is an undertaking

by the plaintiff to assure payment to the Spring ISD Defendants of the Spring ISD Defendants’




reasonable expenses incurred in or in connection with this litigation, including costs and attorney's

fees, see TEX. CIV. PRAC. & REM. CODE § 11.055(c), the Spring ISD Defendants request that security

be set in the amount of $60,000.00.

V.PROHIBITING FILING OF NEW LITIGATION

Pursuant to TEX. CIV. PRAC. & REM. CODE § 11.101, the Spring ISD Defendants move this

Court to enter an order prohibiting Victor Del Rio from filing, in propria persona, a new litigation

in a court in this state, for the reasons given above.

VI.EXHIBITS

The following exhibits are attached to this Motion and incorporated herein for all purposes:

Exhibit A: Final Decision of the Hearing Officer;

Exhibit B: Original Complaint in Special Education Dispute;

Exhibit C: January 28, 2008 Letter from Del Rio to Court dismissing special educationappeal;

Exhibit D: February 1, 2008 Order dismissing special education appeal;

Exhibit E: August 18, 2008 “Emergency Motion to Reopen” special education appeal;

Exhibit F: September 2, 2008 Order denying first request to reopen special educationappeal;

Exhibit G: January 16, 2009 “Motion for Leave to Reopen and File AmendedComplaints”;

Exhibit H: Amended Complaint;

Exhibit I: “Motion to File RICO Case Statement”;

Exhibit J: Order denying second request to reopen special education appeal;

Exhibit K: Original Complaint in C.A. No. H-08-2366; N. Del Rio and Victor Del Riov. Denise “Dede” Drexler and Tracey Del Rio;




Exhibit L: Amended Complaint in C.A. No. H-08-2366; N. Del Rio and Victor Del Riov. Denise “Dede” Drexler and Tracey Del Rio;

Exhibit M: Email Correspondence between Victor Del Rio and Christopher Gilbert;

Exhibit N: Affidavit of Christopher B. Gilbert;

Exhibit O: November 6, 2008 Stipulation of Dismissal;

Exhibit P: November 13, 2008 Order Granting Stipulation of Dismissal;

Exhibit Q: December 2, 2008 “Petition for Judicial Review”;

Exhibit R: December 12, 2008 Order by Judge Werlein dismissing Cause No. 08-2366;

Exhibit S: Final Order in Del Rio Custody Litigation;

Exhibit T: Opinion of the First Court of Appeals;

Exhibit U: Order Dismissing Del Rio Custody Litigation;

Exhibit V: Lawsuit filed against Judge Warne on December 3, 2008 in the United StatesDistrict Court for the Western District of Pennsylvania;

Exhibit W: Recommendation to Dismiss for Want of Prosecution (Pennsylvanialitigation);

Exhibit X: Notice of Removal to Northern District;

Exhibit Y: Order Transferring Northern District to Southern District;

Exhibit Z: Order of Dismissal from Southern District;

Exhibit AA: United States Supreme Court Petition;

Exhibit BB: February 24, 2009 Application to Proceed In Forma Pauperis in federal courtin the Southern District of Texas;

Exhibit CC: Opinion on Dismissal;

Exhibit DD: March 3, 2009 Lawsuit filed in the Court of Federal Claims in WashingtonD.C.;

Exhibit EE: Petition in Travis County Lawsuit;




Exhibit FF: April 7, 2009 Complaint filed in the District Court for the District ofColumbia;

Exhibit GG: April 8, 2009 Complaint filed in the District Court for the District ofColumbia;

Exhibit HH: May 4, 2009 Orders transferring both District of Columbia cases to theSouthern District of Texas;

Exhibit I I: “Emergency Petition for Writs of Mandamus and Prohibition, and OtherExtraordinary Writs” filed directly with the Fifth Circuit Court of Appeals onApril 10, 2009;

Exhibit JJ: Order Denying all requested writs;

Exhibit KK: May 4, 2009 “Petition for Emergency Relief - Custody”;

Exhibit LL: May 4, 2009 “Amended Complaint”;

Exhibit MM: May 14, 2009 Order denying attempt to reopen Werlein Lawsuit;

Exhibit NN: Affidavit of Denise Drexler;

Exhibit OO: Affidavit of Janet Horton.

VII.CERTIFICATE OF CONFERENCE

The undersigned attorney certifies that he communicated with Plaintiff Victor Del Rio by

email on July 13, 2009, and that Mr. Del Rio indicated that he is opposed to this Motion.




Respectfully submitted,

THOMPSON & HORTON LLP

By: /s/ Christopher B. Gilbert Christopher B. GilbertState Bar No. 00787535Janet Little HortonState Bar No. 10021500

South Tower Pennzoil Place711 Louisiana Street, Suite 2100Houston, Texas 77002Telephone: (713) 554-6744Fax: (713) [email protected]

Attorneys for Defendants Spring IndependentSchool District, Janet L. Horton, andChristopher Gilbert




mailto:[email protected]

CERTIFICATE OF SERVICE

I do hereby certify that a true and correct copy of the foregoing document has been forwardedby email and by certified mail, return receipt requested, on July 13, 2009 to:

Victor Del Rio2427 Pinpoint DriveSpring, Texas 77373

/s/ Christopher B. Gilbert Christopher B. Gilbert




CAUSE NO. 2009-17355

VICTOR DEL RIO, § IN THE DISTRICT COURT FOR §

Plaintiff, § §

v. § HARRIS COUNTY, TEXAS§

CITY OF HOUSTON, HARRIS § COUNTY, AND TEXAS, §

§ Defendants. § 157 JUDICIAL DISTRICTth

ORDER DECLARING VICTOR DEL RIO TO BE A VEXATIOUS LITIGANT

Having considered the Motion to Have Victor Del Rio Declared a Vexatious Litigant, filed

by Defendants Spring Independent School District, Janet L. Horton, and Christopher Gilbert pursuant

to TEX. CIV. PRAC.& REM. CODE § 11.051 et seq., any response filed by the Plaintiff, and the hearing

held in this matter on August ___, 2009, the Court has determined that the motion has merit and

should be GRANTED. Accordingly:

1) Pursuant to TEX. CIV. PRAC.& REM. CODE § 11.054, Victor Del Rio is declared a

VEXATIOUS LITIGANT in the State of Texas;

2) Pursuant to TEX. CIV. PRAC. & REM. CODE § 11.051, the Court orders that Plaintiff

Victor Del Rio furnish security in this matter in the amount of $60,000.00, proof of

which shall be filed with the Court within fourteen (14) days of the entry of this

Order. Pursuant to TEX. CIV. PRAC. & REM. CODE § 11.055(c), the Plaintiff is hereby

notified that the security is an undertaking by the Plaintiff to assure payment to the

Spring ISD Defendants of their reasonable expenses incurred in or in connection with

this litigation, including costs and attorney's fees. Pursuant to TEX. CIV. PRAC. &

REM. CODE § 11.056, the Court shall dismiss this litigation as to the Spring ISD


Defendants if the Plaintiff fails to furnish the security within the time set by in this

Order.

3) Pursuant to TEX. CIV. PRAC. & REM. CODE § 11.101, this Court orders that Victor

Del Rio is prohibited from filing, in propria persona, a new litigation in a court in this

state, unless the local administrative judge of the court in which Mr. Del Rio intends

to file the litigation first grants him permission under TEX. CIV. PRAC. & REM. CODE

§ 11.102 to file the litigation. Mr. Del Rio is warned that disobeying this Order may

subject him to contempt of court.

SIGNED this ____ day of ___________, 2009.

___________________________________DISTRICT JUDGE


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