Terry Huntsberry v. Carolyn Pollard, District Clerk of Coryell County--Appeal from 52nd District Court of Coryell County

IN THE

TENTH COURT OF APPEALS

No. 10-91-065-CV

TERRY HUNTSBERRY,

Appellant

v.

CAROLYN POLLARD,

DISTRICT CLERK OF CORYELL COUNTY,

Appellee

From the 52nd District Court

Coryell County, Texas

Trial Court # 25,734

O P I N I O N

Terry Huntsberry, a prison inmate, brought a pro se action in forma pauperis against Carolyn Pollard, the District Clerk of Coryell County. Huntsberry alleged that the clerk negligently failed to timely forward a transcript to this court in Huntsberry's appeal from a judgment of dismissal in a different case. // Before the defendant was served with process, the court dismissed the cause as being "frivolous and/or malicious." //

In a single point of error, Huntsberry contends that the trial court abused its discretion when it dismissed the complaint without considering the facts within the petition. The judgment of dismissal will be affirmed. // The court specified that Huntsberry's petition was dismissed because "the action's realistic chance of ultimate success [was] slight." //

Section 13.001 of the Texas Civil Practice and Remedies Code provides that a court in which an affidavit of inability to pay has been filed may dismiss an action as frivolous or malicious if the action's realistic chance of ultimate success is slight. // In evaluating the petition, the court could have considered that the named defendant was not liable because it was Huntsberry, and not the district clerk, who had the ultimate burden to forward the transcript to this court. // Although rule 51(c) of the Texas Rules of Appellate Procedure imposes a duty on the clerk to "prepare . . . and immediately transmit the transcript to the appellate court," the primary responsibility to place the record before this court, according to rule 50(d), remains with the appellant. // Because Huntsberry failed to request from this court an extension of time in which to file the transcript in the original appeal, it was his failure that rendered the filing of the transcript untimely. // Thus, we conclude that the court did not abuse its discretion when it found that the action's realistic chance of ultimate success was slight and dismissed Huntsberry's petition against the district clerk. //

Recognizing that the Texas Supreme Court has declined to "imply approval of a dismissal of an action based solely upon section 13.001(b)(1)," and that our duty is to affirm the dismissal if it was proper under any legal theory, we conclude that the dismissal of Huntsberry's claim under section 13.002(b)(2) of the Texas Civil Practice and Remedies Code would have been justified because the claim had no arguable basis in law or in fact. // In Nix v. Fraze, the Dallas Court of Appeals affirmed a summary judgment in favor of a district clerk who was sued for negligence in failing to timely forward the transcript to that court in a different case. // Because the court in this case could have concluded that Huntsberry's claim had no arguable basis in law or in fact, we overrule his single point of error.

We affirm the judgment.

BOBBY L. CUMMINGS

Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed April 22, 1992

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