“A clerk has a ‘mandatory, ministerial duty’ to file all documents submitted for filing,” according to a recent opinion issued by the Dallas Court of Appeals.  The court further held that the court, not the clerk, then has the power to decide the propriety of the filing.

In Sanders v. Sanders, No. 05-16-00248-CV, Appellant Pilar Sanders filed an affidavit of indigency with the Collin County District Clerk.  The affidavit contained three separate cause numbers on it.  The District Clerk filed the affidavit only in the first case number.  As a result, the court reporters for the other two cases were unaware of the filing of the affidavit.  The court of appeals later notified those court reporters of the filings, at which point the reporters filed contests to the affidavit.  At the hearing on the contests, the District Clerk testified that there was no timely filing of an affidavit and for that reason, the trial court clerk sustained the contests to the affidavit.

The appellant challenged the trial court’s order on appeal and the court of appeals reversed the order.  Noting that the affidavit was filed when it was put into the hands of the District Clerk, the court held that the District Clerk was required to file the affidavit and that it should have been deemed filed in each of the cases when it was delivered to the clerk.  The court’s opinion may be found here.

Notably, this opinion may be helpful in other circumstances, including supersedeas practice where Appellate Rule 24.1(2) establishes the initial authority to approve a bond with the trial court clerk, with the authority to review the bond resting with the trial court upon motion of any party.  This rule was intended to establish a uniform system for the initial approval of bonds.

 

Photo of Mike Northrup Mike Northrup

Mike Northrup is the chair of the appellate practice group at Cowles & Thompson, P.C. He is Board Certified in Civil Appellate Law by the Texas Board of Legal Specialization, and is a former Chair of the Appellate Law Section of the Dallas…

Mike Northrup is the chair of the appellate practice group at Cowles & Thompson, P.C. He is Board Certified in Civil Appellate Law by the Texas Board of Legal Specialization, and is a former Chair of the Appellate Law Section of the Dallas Bar Association. He is also a former briefing attorney for the Supreme Court of Texas.

Practice Areas

  • Civil Appeals
  • Labor and Employment Law
  • Insurance Law
  • Municipal Law

Professional Associations

  • Dallas Bar Association, Appellate Law Section
  • Defense Research Institute
  • College of the State Bar of Texas
  • State Bar of Texas, Appellate Section
  • Texas Aggie Bar Association

Education

  • JD, Texas Tech University School of Law (1988)
  • B.S., (Political Science), Texas A&M University (1985)

Bar Admissions

  • State Bar of Texas
  • United States Supreme Court
  • United States Court of Appeals for the Fifth Circuit
  • United States District Court, Northern, Southern, and Eastern Districts of Texas