Michael Kennedy v. Patricia Brysch and Kathy Semlinger, in Their Individual and Official Capacities ( 2003 )

MEMORANDUM OPINION No. 04-02-00563-CV Michael KENNEDY, Appellant v. Patricia BRYSCH and Kathy Semlinger, In their Individual and Official Capacities, Appellees From the 218th Judicial District Court, Karnes County, Texas Trial Court No. 04-00076-CVK Honorable Ron Carr, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Sarah B. Duncan, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: April 9, 2003

AFFIRMED IN PART; REVERSED AND REMANDED IN PART

Michael Kennedy sued Patricia Brysch and the Honorable Kathy Semlinger in district court alleging that Brysch, the clerk, and Semlinger, the presiding judge, denied him access to the courts in violation of the United States and Texas Constitutions. Brysch had refused to forward Kennedy's notice of appeal of a judgment in another case to the appellate court. The trial court granted Brysch's and Semlinger's motions for summary judgment and denied Kennedy's. Kennedy appeals. We affirm in part and reverse and remand in part.

1. A judge enjoys absolute immunity from suit for judicial acts performed within her jurisdiction. See Mireles v. Waco, 502 U.S. 9, 12 (1991). Therefore, we hold the trial court properly granted Semlinger's motion for summary judgment and denied Kennedy's.

2. Brysch moved for summary judgment on the ground that Kennedy's affidavit of indigence did not comply with Texas Rule of Appellate Procedure 20.1; and his notice of appeal did not include a certified trust account statement as required by section 14.006(f) of the Texas Civil Practice and Remedies Code. However, Kennedy's affidavit of indigence complies with Rule 20.1(c); and nothing in section 14.006(f) purports to require an inmate to file a certified trust account statement with his notice of appeal. See Tex. Civ. Prac. & Rem. Code § 14.006(f) (Vernon 2002). Because Brysch did not establish her right to summary judgment as a matter of law, we hold the trial court erred in granting her motion. It does not follow that the trial court erred in denying Kennedy's motion.

Contrary to the premise underlying Kennedy's suit and his motion for summary judgment, his appeal was perfected - and this court acquired jurisdiction over his appeal - when he timely filed his notice of appeal in the trial court. See Tex. R. App. P. 25.1(a)-(b). Thus, the Texas Rules of Appellate Procedure require the clerk to file a copy of a notice of appeal in the appellate court only as a part of the clerk's record in a civil case. See and compare Tex. R. App. P. 34.5 (clerk's record in civil case must include notice of appeal) with Tex. R. App. P. 25.2(c) (in criminal cases, "the clerk must [] immediately send one copy [of the notice of appeal] to the clerk of the appropriate court of appeals"). Brysch's failure to forward a copy of the notice (separate and apart from the clerk's record) to the appellate court did not impair Kennedy's right of access to the courts. ⁽¹⁾ Therefore, the trial court correctly denied Kennedy's motion for summary judgment.

We affirm the trial court's judgment in favor of Semlinger, reverse the judgment in favor of Brysch, and remand the cause to the trial court for further proceedings consistent with this opinion.

Sarah B. Duncan, Justice

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1. Although Kennedy perfected his appeal by filing his notice of appeal in the trial court, he did not file a copy of the notice or a docketing statement in this court. This court was therefore unaware of Kennedy's appeal.