Mike Jabary v. City of Allen and Peter Smith, Esq City Attorney ( 2013 )

DISMISS; and Opinion Filed April 29, 2013.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-12-01332-CV
MIKE JABARY, Appellant
V.
CITY OF ALLEN AND PETER SMITH, ESQ., CITY ATTORNEY, Appellees
On Appeal from the 219th Judicial District Court
Collin County, Texas
Trial Court Cause No. 219-827-2011
MEMORANDUM OPINION
Before Justices Moseley, Bridges, and Lang-Miers
Opinion by Justice Lang-Miers
This appeal has been pending since September 28, 2012. On November 29, 2012, the
district court clerk informed the Court that the clerk’s record, which was overdue, had not been
filed because payment had not yet been received. See TEX. R. APP. P. 35.1, 35.3(a). On March 6,
2013, after the trial court sustained two contests to appellant’s affidavit of inability to pay
appellate costs, we ordered appellant to pay, within ten days of the date of the order, the trial
court clerk’s fee for preparation of the record. See Uranga v. Tex. Workforce Comm’n, 319
S.W.3d 787, 791 (Tex. App.–El Paso 2010, no pet.) (appellant bears burden of bringing forward
appellate record). We cautioned appellant that failure to comply would result in the appeal being
dismissed without further notice. See id. 37.3(b). Appellant responded by filing a “notice of
clerk’s refusal of payment” and “motion to require clerk to file clerk’s record.” He asserts in
both that by letter dated February 5, 2013, the district clerk informed him that the “breakdown of
the costs” for the clerk’s record was as follows:
Clerk’s Record: 8517 pages @ $1.50 per page totaling: $12,775.90
Paper copy of Record: 8517 pages @ $.25 per page totaling: $2,129.25
And/or CD copy of Record: $20.00.
Construing the letter to mean he could choose from any of the three “formats,” appellant
requested a “CD copy” of the record and tendered a check to the clerk on March 12, 2013 in the
amount of $20. The district clerk, however, returned the check to appellant, explaining in a letter
dated March 14, 2013 that “if the Clerk’s Record is not paid for and prepared for filing with the
Fifth Court of Appeals, there is no CD copy available to produce.” Appellant contends the clerk
cannot “chang[e her] mind on what [she] want[s] to charge” for the record and “should be held to
[her] agreement.” Appellant requests we order the clerk to “deliver the record on appeal to this
Court’s Clerk for filing and award [appellant] attorney’s fees.” Appellees respond, asserting the
clerk’s letter setting forth the schedule of costs “plainly state[s] . . . there is but one way to have
the ‘Clerk’s Record’ filed . . . – by paying the $1.50 per page fee.”
Texas Rule of Appellate Procedure 35.3(a) provides that the clerk “is responsible for
preparing, certifying, and timely filing the clerk’s record if: . . . (2) the party responsible for
paying for the preparation of the clerk’s record has paid the clerk’s fee, has made satisfactory
arrangements with the clerk to pay the fee, or is entitled to appeal without paying the fee.” See
TEX. R. APP. P. 35.3(a). Pursuant to Texas Supreme Court order and our local rules, the clerk
may file either a paper record or an electronic record submitted to the Texas Appeals
Management and E-filing System web portal. See id. app. C; 5th Tex. App. (Dallas) Loc. R.
11.2(9).
Although appellant argues the clerk’s schedule of costs reflects he could choose to have a
CD copy of the record filed, the supreme court order and our local rules do not allow for the
record to be filed in that format. See TEX. R. APP. P. app. C; 5th Tex. App. (Dallas) Loc. R.
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11.2(9). Additionally, any confusion that may have been created by the clerk’s February 5th
letter was clarified by the clerk when she stated in her second letter to appellant that the $20
would secure a CD copy of the record once the record had been “paid for and prepared for
filing.” Appellant has had more than a month since then to pay or make arrangements to pay the
required fee but has failed to do so, and nothing in either his “notice of clerk’s refusal of
payment” or “motion to require clerk to file clerk’s record” reflects his intent to do so.
We DENY appellant’s motion to order the clerk to file the CD copy of the record and for
attorney’s fees. Because the record has not been filed as a result of appellant’s failure to pay for
the record, and appellant has been given a reasonable opportunity to pay or make arrangements
to pay, we DISMISS the appeal. See id. 37.3(b).
/Elizabeth Lang-Miers/
ELIZABETH LANG-MIERS
JUSTICE
121332F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
MIKE JABARY, Appellant On Appeal from the 219th Judicial District
Court, Collin County, Texas
No. 05-12-01332-CV V. Trial Court Cause No. 219-827-2011.
Opinion delivered by Justice Lang-Miers.
CITY OF ALLEN AND PETER SMITH, Justices Moseley and Bridges participating.
ESQ., CITY ATTORNEY, Appellees
In accordance with this Court’s opinion of this date, the we DISMISS the appeal.
We ORDER that appellees City of Allen and Peter Smith, Esq., City Attorney recover
their costs of this appeal from appellant MIKE JABARY.
Judgment entered this 29th day of April, 2013.
/Elizabeth Lang-Miers/
ELIZABETH LANG-MIERS
JUSTICE
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