United States Court of Appeals,
Fifth Circuit.
No. 97-20438
Summary Calendar.
Luke William ABLE, Jr., Plaintiff-Appellant,
v.
Charles BACARISSE, Individually and as District Clerk of Harris
County; Harris County, Texas, Defendants-Appellees.
Jan. 9, 1998.
Appeal from the United States District Court for the Southern
District of Texas.
Before JOLLY, BENAVIDES and PARKER, Circuit Judges.
PER CURIAM:
Facts and Procedural History
Appellant's license to practice law was suspended by judgment
of the 125th District Court of Harris County, Texas. Appellant
decided to appeal and therefore filed a cost bond as required by
Texas Rule of Appellate Procedure 46(a) so that his appeal might be
perfected. Thereafter, the Harris County District Clerk ("District
Clerk") determined that the cost bond as filed was inadequate, as
the sureties listed thereon were insufficient. The District Clerk
had a policy of not accepting cost bonds where the surety thereon
was other than a surety company listed in the Federal Register,
unless the appellant could provide $1,000 in cash in lieu of the
bond or an audited financial statement showing the assets noted in
his petition. On request of the Appellant, the District Clerk
would not provide him with a certified copy of the cost bond which
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he had previously filed.
Appellant filed a petition for writ of mandamus with the Court
of Appeals for the 14th District of Texas to compel the District
Clerk to accept his offer of $300 dollars for transcript
preparation in lieu of a cost bond. The court of appeals granted
the writ. Meanwhile, Appellant was unable to practice law and had
no income. As a result Appellant became insolvent and was no
longer able to pursue the appeal.
Appellant instituted this § 1983 civil rights action claiming
that the District Clerk's policy and subsequent refusal to provide
a certified copy of the cost bond deprived him of his
constitutionally protected right of access to the courts.
Specifically, it is Appellant's contention that, if the District
Clerk had accepted his cost bond or if the District Clerk had
provided him with a certified copy of his cost bond, then he could
have asked the court of appeals for a stay of his suspension, so
that he could continue to practice law pending the appeal and hence
would have avoided insolvency and abandonment of his appeal. The
district court dismissed Appellant's complaint on motion of
Appellees under Fed.R.Civ.P. 12(b)(6).
The District Clerk's Policy
The District Clerk's policy does not implicate a
constitutionally guaranteed right of access to the courts. In the
first instance, "[t]he right to appeal is a statutory right, not a
constitutional right." United States v. Mendiola, 42 F.3d 259, 260
(5th Cir.1994), citing United States v. Melancon, 972 F.2d 566, 567
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(5th Cir.1992). However, the right to appeal, having been
established by the law of the State of Texas, may not be abrogated
or otherwise administered in a way which denies an appellant of the
constitutional right to due process or equal protection.1
In any event, the District Clerk's policy does not violate
Appellant's statutory right of access to the courts, because
Appellant made no attempt to comply with any of the alternatives
proposed by the District Clerk or available under the Texas Rules
of Appellate Procedure. The District Clerk gave the Appellant a
chance to cure the defective cost bond by providing surety from a
company listed in the Federal Register, providing $1,000 in cash in
lieu of the bond or an audited financial statement showing the
assets noted in Appellant's petition. Beyond that, Texas Rule of
Appellate Procedure 46(c) allowed an appellant to petition the
district court for a lower cost bond, and Rule 40(a)(3) provided
that an appellant could perfect an appeal, even if unable to post
any cost bond or deposit in lieu thereof, provided that he swore to
that inability by affidavit.2 The District Clerk's policy did not
cause Appellant's damages, rather, Appellant caused his own damages
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The facts alleged by Appellant, if accepted as true, cannot
establish an equal protection violation, because the District
Clerk's policy creates no suspect classification, and the policy is
applied to all appellants equally. Likewise, the District Clerk's
policy does not deprive Appellant of the statutory right to an
appeal without due process. Rather, Appellant deprived himself of
the right to appeal by failing to avail himself of the alternatives
suggested by the District Clerk or those available under the Texas
Rules of Appellate Procedure.
2
Although not relevant to this case, these provisions have
been altered considerably by the 1997 amendments to the Texas Rules
of Appellate Procedure.
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by failing to avail himself of the alternatives suggested by the
District Clerk or those provided by the Texas Rules of Appellate
Procedure.
The District Clerk's Actions
The District Clerk's failure to provide Appellant with a
certified copy of the cost bond filed by Appellant does not
implicate a constitutional or federal statutory right. Appellant
argues that, had he been able to obtain a certified copy of the
cost bond from the District Clerk, Appellant could have requested
from the court of appeals a stay of his suspension pending his
appeal and thereby saved his law practice. However, Appellant's
syllogism assumes that he could address his request for a stay to
the appellate court, but under Texas Rule of Disciplinary Procedure
3.14 a motion to stay suspension must be directed to the district
court, which may grant the stay only upon making certain findings
of fact. Hence, Appellant's entire argument fails, because the
ability of the district court to grant a stay of suspension does
not depend on whether Appellant can produce a certified copy of a
properly-filed cost bond. Therefore, as the Appellant cannot state
a claim under § 1983 upon which relief may be granted, the judgment
of dismissal by the district court is affirmed.
AFFIRMED.
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