United States Court of Appeals,
Fifth Circuit.
No. 94-20067
Summary Calendar.
Nancy E. HECKER and John Hecker, Plaintiffs-Appellants,
v.
WAL-MART STORES, INC., Defendant-Appellee.
Oct. 4, 1994.
Appeal from the United States District Court for the Southern
District of Texas.
Before DUHÉ, WIENER and STEWART, Circuit Judges.
PER CURIAM:
Nancy Hecker challenges the district court's dismissal of her
suit as time-barred. We reverse and remand.
BACKGROUND
Hecker filed suit in Texas state court complaining that on
July 8, 1991, Wal-Mart's negligence caused her to slip and fall in
the Wal-Mart store and suffer personal injuries. Hecker mailed her
complaint to the state court clerk's office on or about July 1,
1993. On July 7, the clerk's office informed her that the check
enclosed for the filing fee was insufficient and that an additional
$20 was required. On July 9, one day after the applicable two-year
statute of limitations had run, the clerk's office received the
additional amount and marked the complaint filed. About a month
later, Wal-Mart removed the case to federal court and moved to
dismiss it as time-barred. The district court granted the motion.
This appeal followed.
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DISCUSSION
It is undisputed that the applicable Texas statute of
limitations required that Hecker file her personal injury suit with
the state clerk by July 8, 1993. V.T.C.A. Civ.Prac. & Rem.Code §
16.003 (person must bring personal injury claim not later than two
years after the day the cause of action accrues); Texas Rules
Civ.Proc., Rule 22 (suit is commenced by filing petition in the
office of the clerk). The question before us is whether tendering
documents without the proper filing fees constitutes filing. Texas
case law provides a clear answer.
The longstanding rule in Texas is that "an instrument is
deemed in law filed at the time it is left with the clerk,
regardless of whether or not a file mark is placed on the
instrument and regardless of whether the file mark gives some other
date of filing." Standard Fire Ins. Co. v. LaCoke, 585 S.W.2d 678,
680 (1979); see also Arndt v. Arndt, 709 S.W.2d 281, 282
(Tex.App.—Houston [14th Dist.] 1986, no writ) (per curiam).
Furthermore, an instrument is deemed filed even if it is tendered
without the appropriate filing fee. Arndt, 709 S.W.2d at 282
(examining language in statute governing filing fees and holding
that paying fees is not a condition precedent to filing); see also
Port Distrib. Corp. v. Fritz Chem. Co., 775 S.W.2d 669, 670
(Tex.App.—Dallas 1989, writ dism'd by agr.) (noting that clerk's
refusal to file-stamp a document because filing fee was not
attached was improper). In light of this clear precedent, we must
conclude that Hecker's suit was filed when received by the clerk
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and thus timely.
CONCLUSION
The district court's dismissal of Hecker's complaint is
REVERSED and this matter is REMANDED.
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