Donald W. Read v. TDCJ Policy and John Floyd

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-19-00462-CV
___________________________
DONALD W. READ, Appellant
V.
TDCJ POLICY AND JOHN FLOYD, Appellees
On Appeal from the 17th District Court
Tarrant County, Texas
Trial Court No. 017-306356-19
Before Sudderth, C.J.; Kerr and Wallach, JJ.
Memorandum Opinion by Justice Kerr
MEMORANDUM OPINION
Pro se inmate Donald W. Read has filed a challenge to the trial court’s order
denying his motion to compel the trial-court clerk to issue citation, claiming that the
order violates Texas Rule of Civil Procedure 145. See Tex. R. Civ. P. 145(f), (g)(1).
Read sued “TDCJ Policy” and John Floyd. Along with his original petition,
Read filed a “Motion to Proceed Pursuant to Texas Civil Procedural Rule 145” with a
statement from his inmate-trust-fund account attached. 1 Read later moved to compel
the trial-court clerk to issue citation. The trial-court clerk wrote to him acknowledging
the receipt of his motion and stating,
We did not receive any extra copies of the pleading[s] for the issuance of
citation. Copy fees are not covered under the Paupers Affidavit of
Inability to Pay Cost. You will need to provide filed [sic] stamped copies
of the pleadings that you would like to be attached to the citation or you
may pay for copies (.50 per page).
See generally Tex. R. Civ. P. 99(a) (“The party requesting citation shall be responsible
for obtaining service of the citation and a copy of the petition.”), (d) (“The party filing
any pleading upon which citation is to be issued and served shall furnish the clerk
with a sufficient number of copies thereof for use in serving the parties to be served,
and when copies are so furnished the clerk shall make no charge for the copies.”).
Read countered that because he was considered indigent under Texas Rule of
Civil Procedure 145, he was not required to pay for copying costs. See Tex. R. Civ. P.
1
Read later filed a rule-compliant statement of inability to afford court costs. See
Tex. R. Civ. P. 145(b).
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145(a) (providing that declarant who files a Statement of Inability to Afford Payment
of Court Costs cannot be required to pay costs and that after such a statement is filed,
“the clerk must docket the case, issue citation, and provide any other service that is
ordinarily provided to a party”), (c) (defining “costs” to mean “any fee charged by the
court or an officer of the court that could be taxed in a bill of costs, including, but not
limited to, filing fees, fees for issuance and service of process, fees for a court-
appointed professional, and fees charged by the clerk or court reporter for
preparation of the appellate record”).
After a hearing, the trial court denied Read’s motion. Read appealed, claiming
that the trial court’s order violated Rule 145. See Tex. R. Civ. P. 145(g)(1) (allowing
declarant to challenge an order issued by the trial court under Rule 145 by motion
filed in appellate court). We thus construed his notice of appeal as a motion
challenging the trial court’s order under Rule 145 and ordered the trial-court clerk and
the court reporter “to prepare and file the record of all trial[-]court proceedings on
[Read’s] claim of indigence,” including the record of the hearing on Read’s motion to
compel the trial-court clerk to issue citation. See Tex. R. Civ. P. 145(g)(1), (g)(3).
After reviewing the reporter’s record from the hearing, along with the clerk’s
record and the supplemental clerk’s record, we were concerned that the trial court’s
order merely denied Read free copies of his petition and was not an order requiring
him to pay costs under Texas Rule of Civil Procedure 145(f). See Tex. R. Civ. P. 145(f)
(limiting the trial court’s ability to order a declarant to pay costs). Under Rule 145,
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Read is exempt from paying those costs charged by the court or an officer of the
court that could be taxed in a bill of costs. Tex. R. Civ. P. 145(a), (c) (limiting “costs”
to mean “any fee charged by the court or an officer of the court that could be taxed in
a bill of costs”). Copy costs are not taxable unless a statute or rule requires copies to
be made. See Tex. R. Civ. P. 140 (“No fee for a copy of a paper not required by law or
these rules to be copied shall be taxed in the bill of costs.”); see, e.g., Ferry v. Sackett,
204 S.W.3d 911, 913 (Tex. App.—Dallas 2006, no pet.) (concluding that because Rule
203.4 requires the deposition officer to make copies of original documents marked for
identification and attach them to the original deposition transcript, Rule 140 did not
prohibit copying fees for documents attached to deposition upon written questions).
No statute or rule requires the trial-court clerk to make copies of the petition for
service; Read is required to furnish those copies to the clerk. See Tex. R. Civ. P. 99(d).
The cost of copying the petition is thus not a “cost” as defined by Rule 145.
Because the trial court’s order did not appear to be an order requiring Read to
pay costs under Rule 145(f) and was not a final judgment or an appealable
interlocutory order, we were then concerned that we lacked jurisdiction over the
appeal. We wrote to Read informing him of our concern and warned him that we
could dismiss his appeal for want of jurisdiction unless he filed a response showing
grounds for continuing this appeal. See Tex. R. App. P. 42.3(a), 44.3.
Read has filed a response, but it does not show grounds for continuing this
appeal. Because the trial court’s “Order Denying Donald W. Read’s Motion to Order
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Clerk to Issue Citation” is not a final judgment, appealable interlocutory order, or an
order requiring Read to pay costs under Rule 145(f), we lack jurisdiction to consider
this appeal. See In re Roxsane R., 249 S.W.3d 764, 774–75 (Tex. App.—Fort Worth
2008, orig. proceeding) (“Texas appellate courts have jurisdiction only over final
orders or judgments unless a statute permits an interlocutory appeal.”); see also Tex.
Civ. Prac. & Rem. Code Ann. § 51.014 (listing orders from which interlocutory
appeals may be taken); Tex. R. Civ. P. 145(f), (g). We therefore dismiss this appeal for
want of jurisdiction. 2 See Tex. R. App. P. 42.3(a), 43.2(f).
/s/ Elizabeth Kerr
Elizabeth Kerr
Justice
Delivered: April 2, 2020
2
Read’s related appeal in cause number 02-20-00039-CV remains pending at
this time.
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