$1,364.00, One 1997 Ford Thunderbird, One Phillips VCR Television, One Remington Monitor and Cameras, One Sentinel Intercom and One Set of Tanita Scales v. State of Texas

NO. 07-05-0110-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

APRIL 14, 2005



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$1,364.00, ONE 1997 FORD THUNDERBIRD, ONE PHILLIPS VCR TELEVISION,

ONE REMINGTON MONITOR AND CAMERAS, ONE SENTINEL INTERCOM,

AND ONE SET OF TANITA SCALES, APPELLANTS

V.

THE STATE OF TEXAS, APPELLEE



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FROM THE 72ND DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2004-525,492; HONORABLE BLAIR CHERRY, JUDGE

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Before QUINN and REAVIS and CAMPBELL, JJ.

MEMORANDUM OPINION

Alvin L. Gaither, an inmate proceeding pro se, filed a notice of appeal challenging the trial court's forfeiture order of $1,364, one 1997 Ford Thunderbird, one Phillips VCR television, one Remington monitor and cameras, one Sentinel intercom and one set of Tanita scales. By letter dated March 25, 2005, this Court directed Gaither to pay the required filing fee of $125 within ten days noting that failure to do so might result in dismissal of the appeal. Unless a party is excused from paying, the Clerk of this Court is required to collect filing fees set by statute or the Supreme Court when an item is presented for filing. See Tex. R. App. P. 5 and 12.1(b). Although the filing of a notice of appeal invokes this Court's jurisdiction, if a party fails to follow the prescribed rules of appellate procedure, the appeal may be dismissed. Tex. R. App. P. 25.1(b). Thus, because the filing fee of $125 remains unpaid, we must dismiss the appeal.

Accordingly, the appeal is dismissed for failure to comply with the Texas Rules of Appellate Procedure and with a notice from the Clerk requiring payment of the filing fee. Tex. R. App. P. 42.3(c).



Don H. Reavis

Justice







ervenor failed to preserve its administrative remedies by failing to pursue Medical Dispute Resolution with the Texas Workers Compensation Commission (TWCC) and by failing to appeal the Contested Case Hearing Officer’s Decision against it to the TWCC Appeals Panel before pursuing judicial review.

          The clerk’s original record, consisting of three volumes, was filed on November 20, 2009, and a supplemental record was filed on December 3, 2009. Pending before this Court is Appellant’s Objection to Clerk’s Record and Motion to Strike or Correct Record. According to Appellant, two documents requested by Appellant to be included in the clerk’s record were omitted, while thirty-nine documents that were not requested were included. Appellant prays that this Court strike the existing clerk’s record and order the Lubbock County District Clerk to prepare a new clerk’s record “consistent with that requested by the parties to this appeal.” Alternatively, Appellant requests that this Court order the clerk’s record be amended and corrected. Appellant further requests that this Court order the District Clerk to issue a refund for any overcharge in preparation of the existing clerk’s record. For the reasons set forth herein, Appellant’s motion is denied.

Requested But Excluded Documents

          Appellant contends that (1) Plaintiff’s Original Petition and Jury Demand and (2) Defendant’s Response to Intervenor’s Objections to Reply in Support of Plea to the Jurisdiction, which were designated by Appellant to be included in the clerk’s record, were not included. A review of the record filed does establish that, for whatever reason, those requested documents were omitted from the clerk’s record. Rule 34.5(c)(1) provides that if a relevant item has been omitted from the clerk’s record, the trial court, appellate court, or any party may by letter direct the trial court clerk to prepare, certify, and file the omitted document in a supplemental clerk’s record. This Court directs that Appellant request the Lubbock County District Clerk to supplement the clerk’s record with the two missing documents. Should the district clerk not comply with Appellant’s request, relief may be sought in this Court pursuant to Rule 35.3(c) which ensures the timely filing of the appellate record.

Unnecessary and Unrequested Documents

          Appellant also contends that thirty-nine documents that were never requested by either party should have been excluded from the clerk’s record. Appellant’s Request for Preparation of Clerk’s Record does request that the clerk’s record be prepared “in accordance with Rule 34.5, including but not limited to the following (emphasis added)” listed documents. Appellant contends that these unrequested documents are irrelevant and unnecessary to the resolution of this appeal.

          The inclusion of a document in the clerk’s record does not necessarily mean it is relevant to the merits of the appeal, and an appellate court is free to disregard any irrelevant portions of the clerk’s record. Roventini v. Ocular Sciences, Inc., 111 S.W.3d 719, 726 (Tex.App.–Houston [1st Dist.] 2003, no pet.) (finding that appellate courts are “ill equipped” to make relevancy determinations concerning the clerk’s record at the record-filing stage of an appeal); See also In re C.A.K., 155 S.W.3d 554 (Tex.App.–San Antonio 2004, pet. denied) (motion to strike irrelevant and unnecessary documents from clerk’s record denied).

          Because this Court is not expressly granting any relief requested, Covenant Health Systems d/b/a Covenant Medical Center’s Objection to Clerk’s Record and Motion to Strike or Correct Record is denied. 

          It is so ordered.

                                                                                      Per Curiam