In re Speed, No. 10-07-00027-CV (Tex. App. 3/14/2007)

• Decision Date: 14 March 2007
• Docket Number: No. 10-07-00027-CV.,10-07-00027-CV.
• Parties: IN RE MICHAEL SPEED.
• Court: Texas Court of Appeals

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IN RE MICHAEL SPEED.

No. 10-07-00027-CV.

Court of Appeals of Texas, Tenth District, Waco.

Opinion delivered and filed March 14, 2007.

Original Proceeding.

Petition dismissed.

Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA (Chief Justice GRAY dissenting)

MEMORANDUM OPINION

PER CURIAM.

Michael Speed has filed a "Notice of Appeal" seeking review in this Court of "the refusal of the District Clerk of the 52nd District Court of Coryell County, Texas to file appellants original pro se Action Under Title 42 U.S.C. Section 1983." Speed apparently wants this Court to require the district clerk to file his lawsuit. Therefore, we construe Speed's "Notice of Appeal" as a mandamus petition.¹ See Powell v. Stover, 165 S.W.3d 322, 324 n.1 (Tex. 2005) (orig. proceeding); Bielamowicz v. Cedar Hill Indep. Sch. Dist., 136 S.W.3d 718, 719-20 (Tex. App.-Dallas 2004, pet. denied); see also In re D. Wilson Const. Co., 196 S.W.3d 774, 784 (Tex. 2006) (orig. proceeding) (Brister, J., concurring) ("When this and other Texas appellate courts decide that an appeal or other pleading should have been pursued by mandamus, we do not generally toss out the appeal or require it to be done twice; instead, we treat the improper appeal as a proper mandamus.").

However, this Court does not have jurisdiction to issue a writ of mandamus against a district clerk unless necessary to enforce our jurisdiction. See Tex. Gov't Code Ann. § 22.221(a), (b) (Vernon 2004); In re Washington, 7 S.W.3d 181, 182 (Tex. App.-Houston [1st Dist.] 1999, orig. proceeding) (per curiam); see also HCA Health Servs. of Tex., Inc. v. Salinas, 838 S.W.2d 246, 248 (Tex. 1992) (orig. proceeding) (per curiam); In re Simpson, 997 S.W.2d 939, 939 (Tex. App.-Waco 1999, orig. proceeding) (per curiam).

Rather, the correct procedure to be followed in this situation was explained by Justice O'Connor in a concurring opinion in In re Bernard. 993 S.W.2d 453 (Tex. App.-Houston [1st Dist.] 1999, orig. proceeding) (per curiam).

The district clerk has a duty to accept and file all pleadings presented for filing. In a long line of cases, the Texas Supreme Court has held that a document is considered" filed" when it is tendered to the clerk or otherwise put under the custody or control of the clerk. Jamar v. Patterson, 868 S.W.2d 318, 319 (Tex. 1993); Mr. Penguin Tuxedo Rental & Sales, Inc. v. NCR Corp., 787 S.W.2d 371, 372 (Tex. 1990); Biffle v. Morton Rubber Indus., Inc., 785 S.W.2d 143, 144 (Tex. 1990). Thus, Bernard's petition to the district court for writ of mandamus was filed as of the date it was delivered by mail to the district clerk's office, even though the clerk refused to accept it for filing. Mr. Penguin, 787 S.W.2d at 372; Standard Fire Ins. Co. v. LaCoke, 585 S.W.2d 678, 680 (Tex. 1979).

When pleadings are tendered to the district clerk for filing, they are deemed filed; the district clerk must accept them for filing. Any ruling regarding the propriety of pleadings must be made by the district judge, not by the clerk. Only the district judge can decide that a pleading is not in its correct form; the clerk cannot make that determination. If the judge decides a pleading is not accompanied by the necessary attachments or is defective for some other reason, the judge must give the party a chance to correct the problem by amendment or supplementation. Even the judge may not strike a pleading because it is incomplete without giving the party an opportunity to correct the defect.

These same rules apply to inmate litigation. Nothing in Texas Civil Practice Remedies Code chapter 14, concerning inmate litigation, permits a district clerk to refuse to accept an inmate's petition for filing because it is not accompanied by the correct supporting documentation.

When a district clerk refuses to accept a pleading presented for filing, the party presenting the document may seek relief by filing an application for writ of mandamus in the district court. TEX. GOV'T CODE § 24.011. However, that is not likely to help the relator here. If the district clerk refused to file a writ of mandamus against the prison official, the district clerk is not likely to accept a writ of mandamus filed against her office.

When a district clerk refuses to accept a pleading for filing, the party should attempt to file the pleading directly with the district judge, explaining in a verified motion that the clerk refused to accept the pleading for filing. Tex. R. Civ. P. 74. Should the district judge refuse to accept the pleading for filing, this Court would have jurisdiction under our mandamus power to direct the district judge to file the pleading.

Bernard, 993 S.W.2d at 454-55 (O'Connor, J., concurring).

Because this Court does not have jurisdiction to issue a writ of mandamus against the district clerk, we dismiss Speed's petition for want of jurisdiction. See In re McAfee, 54 S.W.3d 460, 461 (Tex. App.-Waco 2001, orig. proceeding) (per curiam).

Absent a specific exemption, the Clerk of the Court must collect filing fees at the time a document is presented for filing. TEX. R. APP. P. 12.1(b); Appendix to Tex. R. App. P., Order Regarding Fees (July 21, 1998); see also TEX. R. APP. P. 5; 10TH TEX. APP. (WACO) LOC. R. 6; TEX. GOV'T CODE ANN. §§ 51.207(b), 51.941 (Vernon 2005). Under these circumstances, we suspend the rule and order the Clerk to write off all unpaid filing fees in ...