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United States Court of Appeals,

Fifth Circuit.

No. 97-20438

Summary Calendar.

Luke William ABLE, Jr., Plaintiff-Appellant,

v.

Charles BACARISSE, Individually and as District Clerk of Harris

County; Harris County, Texas, Defendants-Appellees.

Jan. 9, 1998.

Appeal from the United States District Court for the Southern

District of Texas.

Before JOLLY, BENAVIDES and PARKER, Circuit Judges.

PER CURIAM:

Facts and Procedural History

Appellant's license to practice law was suspended by judgment

of the 125th District Court of Harris County, Texas. Appellant

decided to appeal and therefore filed a cost bond as required by

Texas Rule of Appellate Procedure 46(a) so that his appeal might be

perfected. Thereafter, the Harris County District Clerk ("District

Clerk") determined that the cost bond as filed was inadequate, as

the sureties listed thereon were insufficient. The District Clerk

had a policy of not accepting cost bonds where the surety thereon

was other than a surety company listed in the Federal Register,

unless the appellant could provide $1,000 in cash in lieu of the

bond or an audited financial statement showing the assets noted in

his petition. On request of the Appellant, the District Clerk

would not provide him with a certified copy of the cost bond which
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he had previously filed.

Appellant filed a petition for writ of mandamus with the Court

of Appeals for the 14th District of Texas to compel the District

Clerk to accept his offer of $300 dollars for transcript

preparation in lieu of a cost bond. The court of appeals granted

the writ. Meanwhile, Appellant was unable to practice law and had

no income. As a result Appellant became insolvent and was no

longer able to pursue the appeal.

Appellant instituted this § 1983 civil rights action claiming

that the District Clerk's policy and subsequent refusal to provide

a certified copy of the cost bond deprived him of his

constitutionally protected right of access to the courts.

Specifically, it is Appellant's contention that, if the District

Clerk had accepted his cost bond or if the District Clerk had

provided him with a certified copy of his cost bond, then he could

have asked the court of appeals for a stay of his suspension, so

that he could continue to practice law pending the appeal and hence

would have avoided insolvency and abandonment of his appeal. The

district court dismissed Appellant's complaint on motion of

Appellees under Fed.R.Civ.P. 12(b)(6).

The District Clerk's Policy

The District Clerk's policy does not implicate a

constitutionally guaranteed right of access to the courts. In the

first instance, "[t]he right to appeal is a statutory right, not a

constitutional right." United States v. Mendiola, 42 F.3d 259, 260

(5th Cir.1994), citing United States v. Melancon, 972 F.2d 566, 567
 

1The facts alleged by Appellant, if accepted as true, cannot

establish an equal protection violation, because the District

Clerk's policy creates no suspect classification, and the policy is

applied to all appellants equally. Likewise, the District Clerk's

policy does not deprive Appellant of the statutory right to an

appeal without due process. Rather, Appellant deprived himself of

the right to appeal by failing to avail himself of the alternatives

suggested by the District Clerk or those available under the Texas

Rules of Appellate Procedure. 

 

2Although not relevant to this case, these provisions have

been altered considerably by the 1997 amendments to the Texas Rules

of Appellate Procedure. 

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(5th Cir.1992). However, the right to appeal, having been

established by the law of the State of Texas, may not be abrogated

or otherwise administered in a way which denies an appellant of the

constitutional right to due process or equal protection.1

In any event, the District Clerk's policy does not violate

Appellant's statutory right of access to the courts, because

Appellant made no attempt to comply with any of the alternatives

proposed by the District Clerk or available under the Texas Rules

of Appellate Procedure. The District Clerk gave the Appellant a

chance to cure the defective cost bond by providing surety from a

company listed in the Federal Register, providing $1,000 in cash in

lieu of the bond or an audited financial statement showing the

assets noted in Appellant's petition. Beyond that, Texas Rule of

Appellate Procedure 46(c) allowed an appellant to petition the

district court for a lower cost bond, and Rule 40(a)(3) provided

that an appellant could perfect an appeal, even if unable to post

any cost bond or deposit in lieu thereof, provided that he swore to

that inability by affidavit.2 The District Clerk's policy did not

cause Appellant's damages, rather, Appellant caused his own damages
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by failing to avail himself of the alternatives suggested by the

District Clerk or those provided by the Texas Rules of Appellate

Procedure.

The District Clerk's Actions

The District Clerk's failure to provide Appellant with a

certified copy of the cost bond filed by Appellant does not

implicate a constitutional or federal statutory right. Appellant

argues that, had he been able to obtain a certified copy of the

cost bond from the District Clerk, Appellant could have requested

from the court of appeals a stay of his suspension pending his

appeal and thereby saved his law practice. However, Appellant's

syllogism assumes that he could address his request for a stay to

the appellate court, but under Texas Rule of Disciplinary Procedure

3.14 a motion to stay suspension must be directed to the district

court, which may grant the stay only upon making certain findings

of fact. Hence, Appellant's entire argument fails, because the

ability of the district court to grant a stay of suspension does

not depend on whether Appellant can produce a certified copy of a

properly-filed cost bond. Therefore, as the Appellant cannot state

a claim under § 1983 upon which relief may be granted, the judgment

of dismissal by the district court is affirmed.

AFFIRMED.