Donald Ray McCray v. Clerk of the Court

In The



Court of Appeals



Ninth District of Texas at Beaumont



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NO. 09-02-518 CV

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DONALD RAY MCCRAY, Appellant



V.



CLERK OF THE COURT, Appellee




On Appeal from the 60th District Court

Jefferson County, Texas

Trial Cause No. B-168,162




MEMORANDUM OPINION

Donald Ray McCray appeals from the dismissal of a suit filed against the "Clerk of the Court." Because the appeal involves the application of well-settled principles of law, we deliver this memorandum opinion. Tex. R. App. P. 47.4.

This litigation has its genesis in another suit filed by McCray. According to the allegations in the plaintiff's original petition, McCray filed a suit in the 136th District Court, and that suit was dismissed pursuant to Chapter 14 of the Texas Civil Practice and Remedies Code. Tex. Civ. Prac. & Rem. Code Ann. §§ 14.001-.014 (Vernon 2002). McCray filed this suit, naming the "Clerk of the Court" as the defendant, alleging that he was denied due process in the appeal of a unit grievance. Although it is difficult, if not impossible, to determine from his pleadings what wrongful act the Clerk of the Court was alleged to have committed, McCray cited statutes relating to the appeal process for claims subject to the inmate grievance system. See Tex. Civ. Prac. & Rem. Code Ann. § 14.005 (Vernon 2002); Tex. Gov't Code Ann. § 501.008 (Vernon 1998).

The "Clerk of the Court" filed an answer that alleged that the clerk is entitled to derivative judicial immunity for acts taken on behalf of the court, and a motion to dismiss the suit because the claims brought in the suit are legally frivolous. The trial court ruled that the claims brought in McCray's petition were frivolous and dismissed the suit.

The sole issue raised on appeal complains that the clerk of the court did not specify what subsection of Section 14.003 the clerk relied upon to support the motion. McCray's argument is not supported by the appellate record. The defendant's reliance on Section 14.003(a)(2) is evident from the text of the motion, which states, "As such the claim brought is legally frivolous and should be dismissed." Section 14.003(a)(2) authorizes the trial court to "dismiss a claim . . . if the court finds that . . . the claim is frivolous or malicious. . . ." Tex. Civ. Prac. & Rem. Code Ann. § 14.003(a)(2) (Vernon 2002). We overrule the issue presented and affirm the judgment.

AFFIRMED.



PER CURIAM







Submitted on February 17, 2003

Opinion Delivered February 27, 2003



Before McKeithen, C.J., Burgess and Gaultney, JJ.