                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-14-00348-CV

ALFRED LEE STONE,
                                                            Appellant
v.

GARY L. JOHNSON, ET AL,
                                                            Appellees



                           From the 278th District Court
                               Walker County, Texas
                              Trial Court No. 20625-C


                          MEMORANDUM OPINION


      Alfred Lee Stone attempts to appeal from the trial court’s order dismissing his

cause of action as frivolous. The judgment was entered on November 23, 1999, and

Stone filed a notice of appeal on November 14, 2014. By letter dated December 3, 2014,

the Clerk of this Court notified Stone that the appeal was subject to dismissal because it

appeared that the notice of appeal was untimely. See TEX. R. APP. P. 26.1(a). The Clerk

also warned Stone that the appeal would be dismissed unless, within 21 days of the

date of the letter, a response was filed showing grounds for continuing the appeal. See
TEX. R. APP. P. 44.3. Stone filed a response, but the response does not show grounds for

continuing the appeal.

       Absent a specific exemption, the Clerk of the Court must collect filing fees at the

time a document is presented for filing. TEX. R. APP. P. 12.1(b); Appendix to TEX. R. APP.

P., Order Regarding Fees (Amended Aug. 28, 2007, eff. Sept. 1, 2007). See also TEX. R.

APP. P. 5; 10TH TEX. APP. (WACO) LOC. R. 5; TEX. GOV’T CODE ANN. § 51.207(b); §

51.941(a) (West 2005); and § 51.208 (West Supp. 2011). Under these circumstances, we

suspend the rule and order the Clerk to write off all unpaid filing fees in this case. TEX.

R. APP. P. 2. The write-off of the fees from the accounts receivable of the Court in no

way eliminates or reduces the fees owed by appellant.

       Accordingly, this appeal is dismissed. Stone’s pending motions before the Court

are dismissed as moot.



                                          AL SCOGGINS
                                          Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Appeal dismissed; motions dismissed
(Chief Justice Gray concurring with note)*
Opinion delivered and filed January 29, 2015
[CV06]

       *(Chief Justice Gray concurs in the judgment to dismiss Stone’s attempted appeal
but for a different reason than as stated by the Court and provides the following note:
       As I read Stone’s amended notice of appeal, motion for leave to file an amended
notice of appeal, and his brief, Stone’s complaint is that the District Clerk will not file a
new claim because a claim he filed in 1999 was dismissed as frivolous and the filing fee
for that 1999 suit remains unpaid. Based upon the documents attached to Stone’s brief,

Stone v. Johnson                                                                       Page 2
including a letter from the District Clerk’s office dated September 8, 2014, because of the
unpaid balance for fees in the 1999 case, all of Stone’s documents for his new claim were
returned to him and not filed. Accordingly, there is no trial court proceeding from
which an appeal can be taken. While the Court has interpreted the documents filed as a
complaint about the 1999 judgment, it appears to me that the complaint is actually
about how the District Clerk is interpreting the 1999 order and using it as a basis to
refuse to file a new proceeding in 2014. It is important to note that the 1999 proceeding
was dismissed as frivolous under Chapter 14 of the Texas Civil Practice and Remedies
Code; and it does not appear Stone was determined to be a vexatious litigant under
Chapter 11 of that Code. He does not appear on the list of vexatious litigants
maintained        by      the    Office      of      Court     Administration.           See
http://www.txcourts.gov/judicial-data/vexatious-litigants.aspx (updated 1/21/2015).
Nevertheless, the District Clerk refuses to file the new proceeding. Thus, Stone’s
complaint is that the District Clerk refuses to file his new suit due to the unpaid balance
on the 1999 suit dismissed as frivolous. Stone appears to have a valid complaint, but we
do not have jurisdiction of an appeal from a 2014 suit that was never filed. And we do
not have mandamus jurisdiction of a district clerk unless the actions of the district clerk
interfere with our jurisdiction. See TEX. GOV'T CODE ANN. § 22.221 (West 2004); In re
Simmonds, 271 S.W.3d 874, 879 (Tex. App.—Waco 2008, orig. proceeding). At this point,
Stone’s remedy is not an appeal but rather a mandamus filed with the district clerk or a
district court to compel the district clerk to file Stone’s new suit. In re Bernard, 993
S.W.2d 453, 454-455 (Tex. App.—Houston [1st Dist.] 1999, orig. proceeding) (Justice
O’Connor concurring). Alternatively, Stone could attempt to file the pleading directly
with the district court and if refused by the district court, then we would have
jurisdiction of a mandamus to compel the district court to file it. Id. at 455 (“When a
district clerk refuses to accept a pleading for filing, the party should attempt to file the
pleading directly with the district judge, explaining in a verified motion that the clerk
refused to accept the pleading for filing. TEX. R. CIV. P. 74. Should the district judge
refuse to accept the pleading for filing, this Court would have jurisdiction under our
mandamus power to direct the district judge to file the pleading.”); see Simmonds, 271
S.W.3d at 879.)




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