HARRIS COUNTY, Appellant, v. Christopher LAWSON, Appellee.
No. 01-02-00288-CV.
Court of Appeals of Texas, Houston (1st Dist.).
Aug. 22, 2003.
Order Overruling Rehearing En Banc Nov. 21, 2003.
We overrule AISD‘s issue two as it relates to post-judgment interest; we sustain the County‘s issue six.35
Conclusion
We affirm the portion of the trial court‘s judgment that denies AISD penalties and interest. We reverse the portiоns of the trial court‘s judgment that denies the County penalties, interest, attorney‘s fees, and court costs, and the portion that denies AISD attorney‘s fees and court costs and title search fees. In accordance with this opinion, we remand the cause to the trial court (1) for determination of (a) the amount of interest and penalties to be awarded the County; (b) the amount of attorney‘s fees and court costs to be awarded the County; (c) a reasonable tax master‘s fee to be included as a cost of suit; and (d) the amount of attorney‘s fees, court costs, and title research fees, to be awarded AISD; and (2) for entry of judgment, which awards the County post-judgment interest.
Martin A. Shellist, Shellist, Lore & Lazarz, P.C., Houston, for Appellee.
Panel consists of Chief Justice RADACK and Justices NUCHIA and JENNINGS.
EN BANC OPINION
TERRY JENNINGS, Justice.
Appellant, Harris County (the County), challenges the trial court‘s interlocutory order denying the County‘s plea to the jurisdiction.1 In its sole issue, the County contends that the triаl court lacked jurisdiction over this “Whistleblower” lawsuit2 filed by appellee, Christopher Lawson, because Lawson did not comply with the applicable statutory requirements.
This Court has previously held that a plaintiff failed to satisfy the statutory prerequisites to filing suit under the Whistleblower Act when she “elected to exhaust her administrative remedy and filed suit before exhaustion.” Univ. of Houston Sys. v. Lubertino, 95 S.W.3d 423, 428 (Tex. App.-Houston [1st Dist.] 2002, no pet.). We reasoned that “Lubertino elected to exhaust the grievance procedures when she submitted a formal grievance complaint” and that she could not “pursue her grievance and lawsuit simultaneously.” Id. at 427 (emphasis added). We thus concluded that the trial court had no jurisdiction over Lubertino‘s suit. Id. En banc consideration was requested and granted to address the above holding and reasoning in Lubertino. Today, for the reasons discussed below, the En Banc Court, after careful and deliberate consideration, overrules Lubertino.
We affirm.
Facts and Procedural Background
On May 19, 2000, Lawson was terminated from his job as a jailеr at the Harris County Jail. Harris County Sheriff‘s Major K. Berry signed a letter of termination, stating that Lawson‘s employment was terminated because Lawson, among other things, failed to properly perform assigned duties, failed to obey lawful orders, was insubordinate, and engaged in unprofessional and improper conduct. Lawson timely appealed his termination to the Harris County Sheriff, who, on June 29, 2000, upheld the termination of employment.3
On July 6, 2000, Lawson timely appealed his termination to the Civil Service Commission. On September 19, 2000, while that administrative proceeding was still
On April 3, 2001, following an administrative hearing at which the parties were represented by counsel, the Civil Service Commission upheld Lawson‘s termination. On January 18, 2002, the County filed a plea to the jurisdiction, which was denied by the trial court.
Plea to the Jurisdiction
In its sole issue, the County argues that the trial court lacked jurisdiction over Lawson‘s Whistleblower lawsuit because Lawson failed to either exhaust or abandon his administrative grievance proceeding before filing suit.
As a general rule, political subdivisions of the State, such as the County, are immune from tort liability based on the doctrine of governmental immunity. Travis v. City of Mesquite, 830 S.W.2d 94, 104 (Tex. 1992); Taub v. Harris County Flood Control Dist., 76 S.W.3d 406, 409 (Tex. App.-Houston [1st Dist.] 2002, no pet.). A governmental entity may contest a trial court‘s authority to determine the subject matter of the cause of action by filing a plea to the jurisdiction. Reyes v. City of Houston, 4 S.W.3d 459, 461 (Tex. App.-Houston [1st Dist.] 1999, pet. denied). When reviewing a trial court‘s decision on a plea to the jurisdiction, we consider the facts alleged by the plaintiff and, to the extent relevant to the jurisdictional issues, any evidence submitted by the parties. Tex. Natural Res. Conservation Comm‘n v. White, 46 S.W.3d 864, 868 (Tex. 2001).
Subject matter jurisdiction is a question of law and cannot be waived. Tex. Ass‘n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445 (Tex. 1993); Taub, 76 S.W.3d at 409. In the absence of a waiver of governmental immunity, a court has no jurisdiction to entertain a suit against a governmental unit. Tex. Dep‘t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). When a trial court learns that it lacks jurisdiction to hear a cause, the court must dismiss the cause and refrain from rendering a judgment on the merits. Li v. Univ. of Tex. Health Sci. Ctr., 984 S.W.2d 647, 654 (Tex. App.-Houston [14th Dist.] 1998, writ denied).
Whistleblower Act
Under the Texas Whistleblower Act, a local government entity may not suspend or terminate the employment of a public employee based on the employee‘s good faith report of a violation of law by the employing governmental entity to an appropriate law enforcement authority.
In its “Waiver of Immunity” provision, the Act provides for a waiver of immunity from suit and immunity from liability as follows:
A public employee who alleges a violation of this chapter may sue the employing state or local government entity for the relief provided by this chapter. Sovereign immunity is waived and abolished to the extent of liability for the relief allowed under this chapter for a violation of this chapter.
The Whistleblower Act is designed to enhance оpenness in government and compel the government‘s compliance with law by protecting those who inform authorities of wrongdoing. Castaneda v. Tex. Dep‘t of Agriculture, 831 S.W.2d 501, 503 (Tex. App.-Corpus Christi 1992, writ denied); Davis v. Ector County, 40 F.3d 777, 785 (5th Cir. 1994). The Act evidences two legislative purposes: (1) to protect public employees from retaliation by their employer when, in good faith, employees report a violation of the law, and (2) in consequence, to secure lawful conduct on the part of those who direct and conduct the affairs of public bodies. Travis County v. Colunga, 753 S.W.2d 716, 718-19 (Tex. App.-Austin 1988, writ denied). Because the Act is remedial in nature, it should be liberally construed to effect its purpose. Castaneda, 831 S.W.2d at 503; Davis, 40 F.3d at 785.
(a) A public employee must initiate action under the grievance or appeal procedures of the employing state or local government entity relating to suspension or termination of employment or adverse personnel action before suing under this chapter.
(b) The employee must invoke the appliсable grievance or appeal procedures not later than the 90th day after the date on which the alleged violation of this chapter:
(1) occurred; or
(2) was discovered by the employee through reasonable diligence.
(c) Time used by the employee in acting under the grievance or appeal procedures is excluded, except as provided by Subsection (d), from the period established by
Section 554.005 .(d) If a final decision is not rendered before the 61st day after the date procedures are initiated under Subsection (a), the employee may elect to:
(1) exhaust the applicable procedures under Subsection (a), in which event the employee must sue not later than the 30th day after the date those procedures are exhausted to obtain relief under this chapter; or
(2) terminate the procedures under Subsection (a), in which event the employee must sue within the time remaining under
Section 554.005 to obtain relief under this chapter.
Here, the parties do not disputе that Lawson timely initiated his grievance proceeding and timely appealed the decision of the Sheriff‘s Department to uphold his termination to the Civil Service Commission, thus fulfilling the requirements of sections
This court has held that “the statutory prerequisite that a plaintiff in a Whistleblower action timely initiate a grievance is a jurisdictional requirement, the failure of which may be challenged by way of a plea to the jurisdiction.” Tex. S. Univ. v. Carter, 84 S.W.3d 787, 792 (Tex. App.-Houston [1st Dist.] 2002, no pet.) (emphasis added); City of Houston v. Cotton, 31 S.W.3d 823, 824-25 (Tex. App.-Houston [1st Dist.] 2000, pet. denied); Univ. of Tex. Med. Branch v. Hohman, 6 S.W.3d 767, 774 (Tеx. App.-Houston [1st Dist.] 1999, pet. dism‘d w.o.j.). In regard to this holding, it is important to note that
In Carter, this Court specifically addressed the question of whether the Texas Supreme Court‘s holding in Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 76 (Tex. 2000), effectively overruled our holding in Hohman. Carter, 84 S.W.3d at 791. We noted that the key distinction between Kazi and Hohman was that Kazi was a wrongful death case, and, that there is no common law Whistleblower cause of action. Id. Moreover, we noted that a trial court has no constitutional jurisdiction in a suit against the State, absent a waiver of governmental immunity:
In sum, the Whistleblower Act creates the cause of action sued upon, prоvides procedural prerequisites for filing suit, and then waives sovereign immunity from suit once those requirements have been met. The trial court has no subject matter jurisdiction over the suit unless the State‘s sovereign immunity from suit is waived, and the State‘s sovereign immunity from suit is not waived unless the statutory prerequisites for filing suit have been met. As such, this case is distinguishable from Kazi, in which sovereign immunity was not an issue.
Id. at 792. As noted above, the Whistleblower Act waives governmental immunity “to the extent of liability for the relief allowed under this chapter.”
Thus, we concluded that Kazi did not overrule our holding in Hohman and that the statutory prerequisite that a plaintiff “must initiate” a grievance “before suing” is a jurisdictional requirement. Id. at 792.4
Here, the County, in effect, asks us to extend this holding. The County argues that the trial court in this case had no jurisdiction because Lawson did not aban-
In Marin, the court of appeals held that two municipal employees violated “both the spirit and the letter” of the Whistleblower Act by filing their lawsuit within two days of initiating their grievance proceeding. Marin, 19 S.W.3d at 438. The court of appeals held that the trial court lacked jurisdiction over the case because the employees failed to satisfy the mandatory statutory requirements to filing suit, and the court observed that, “[w]hile exhaustion is not required, an employee is required to initiate the grievance procedure and give the employer an opportunity to reach a final decision within 60 days.” Id. Here, the parties agree that, after initiating his grievance proceeding, Lawson waited more than 60 days to file his lawsuit.
Following Marin, the court of appeals in Johnson affirmed the trial court‘s grant of a plea to the jurisdiction, holding that a municipal police chief “failed to initiate action” under the municipality‘s grievance procedure and thus did not satisfy the mandatory statutory prerequisites to filing suit under the Act. Johnson, 46 S.W.3d at 405.
The court of appeals in Castleberry addressed the issue of whether the 90-day period in which an employee must file suit for a violation of the Act is tolled during the pendency of the employee‘s grievance proceeding. Castleberry, 35 S.W.3d at 781-82; see
The cases relied on by the County do not address the question of whether, prior to filing a Whistleblower lawsuit, a public employee, in order to invoke the jurisdiction of a district court, must elect either to (1) exhaust the appropriate grievance proceеding and wait to file suit within 30 days of the final resolution of that proceeding, or (2) formally abandon the grievance proceeding and file suit within the remaining portion of the 90-day limitations period. Thus, we find these authorities inapplicable.
As we noted in Hohman, “[u]nder the Whistleblower Act, the legislature intended that the governmental entity be afforded the opportunity to correct its errors by resolving disputes before facing litigation.” 6 S.W.3d at 774 (citing Gregg County v. Farrar, 933 S.W.2d 769, 775 (Tex. App.-Austin 1996, writ denied)). Although it is well-established that governmental entities should be afforded an opportunity to remedy their errors before facing a lawsuit, there is no requirement that governmental entities be given an unlimited opportunity to do so. Here, Lawson‘s administrative appeal of the decision of the Sheriff‘s Department to uphold his termination was not ruled on for nearly nine months.
In fact, the County‘s argument is in direct conflict with the express language of
The Legislature amended
The Legislature, by amending
The Whistleblower Act now provides that a public employee, after waiting 60 days for a final decision on their grievance or appeal, “may elect” to “exhaust the applicable procedures” or “terminate [the] procedures.”
As noted above, a Whistleblowеr plaintiff no longer has to “exhaust” grievance or appeals procedures to bring suit against a governmental entity. Instead, subsection (d) now gives Whistleblower plaintiffs the choice of exhausting those procedures or, after waiting 60 days for a final decision, filing a lawsuit.
Here, the record indicates that Lawson complied with these requirements. Lawson was terminated from his job as a jailer on May 19, 2000, and he timely appealed his termination to the Harris County Sheriff, which, on June 29, 2000, upheld the termination of employment. Lawson then timely appealed his termination to the Civil Service Commission. On September 19, 2000, while that administrative proceeding was still pending, Lawson subsequently filed his Whistleblower lawsuit against the County. Although Lawson did not formally terminate his appeal to the Civil Service Commission, he gave the County, as he was required to by
Because Lawson complied with the statutory prerequisites of
rors by resolving disputes before facing litigation.
In reaching our holding, we must also address this Court‘s previous decision in University of Houston System v. Lubertino, 95 S.W.3d 423 (Tex. App.-Houston [1st Dist.] 2002, no pet.). In Lubertino, we held that, “because Lubertino failed to satisfy the mandatory statutory prerequisites to filing suit under the Whistleblower Act, the trial court lacked jurisdiction.” Id. at 428. We noted that the defendant “conceded” that Lubertino timely initiated the appropriate grievance procedure and we reasoned as follows:
Lubertino elected to exhaust the grievance procedures when she submitted a formal grievance complaint 77 days after initiating her grievance. Once Lubertino elected to exhaust her grievance, she could not file suit before exhaustion unless she made an election to terminate her grievance. However, Lubertino never elected to terminate her grievance, but instead attempted to pursue her grievance and lawsuit simultaneously. Because section 554.006 expressly forbids such simultaneous actions, Lubertino did not comply with the limitations provisions of the Act.
However, a public emрloyee does not “elect” to “exhaust the grievance procedures” by merely filing a grievance complaint timely, which is required under
Thus, we further hold that a public employee‘s continued participation in a governmental entity‘s grievance or appeal procedures, after the employee has timely initiated his grievance, waited 60 days for a final decision, and timely filed suit, does not deprive a trial court of subject-matter jurisdiction over the case. To hold otherwise would be inconsistent with the plain language of
Conclusion
Having held that the trial court did not err in denying the County‘s plea to the jurisdiction, we overrule the County‘s sole issue.
We affirm the order of the trial court.
En banc consideration was requested on the Court‘s motion.
A majority of the Court voted in favor of en banc consideration of the case.
The en banc Court consists of Chief Justice RADACK and Justices HEDGES, TAFT, NUCHIA, JENNINGS, KEYES, ALCALA, HANKS, and HIGLEY.
Justice JENNINGS, writing for the majority of the en banc Court, joined by Chief Justice RADACK and Justices HEDGES, NUCHIA, and HANKS.
Justice ALCALA, dissenting, joined by Justices TAFT, KEYES, and HIGLEY.
ELSA ALCALA, Justice, dissenting.
I respectfully dissent. When a public employee is suspended or terminated for reporting violations of law by the employing governmental entity, sections
The issue now before the Court is the majority‘s attempt to overrule our decision in Lubertino and to hold that an employee need not make the election that
Significance of the Election Provision
The election provision is significant in the Whistleblower Act for two reasons. First, the election provision requires that grievance proceedings be exhausted or terminated—and not ongoing—when a lawsuit is filed. Second, the election provision states the time limitations that govern when a lawsuit may be filed against the State, depending on the course of action taken by an employee. Each issue is addressed in turn.
1. Concurrent Grievance Proceedings and Lawsuits
After waiting 60 days from the date grievance procedures are initiated, can employees disregard the election provision and simultaneously pursue grievance procedures and lawsuits?
The plain language of the Act neither permits nor contemplates concurrent lawsuits and grievance proceedings and affirmatively dictates otherwise. Under
The panel opinion relies on Castleberry Independent School Dist. v. Doe, for the proposition that “the employee is no longer required to exhaust available grievance procedures, but may file suit within the remaining time.” Id., 35 S.W.3d 777, 782 (Tex.App.-Fort Worth 2001, pet. dism‘d w.o.j.). Castleberry does not address, however, whether an employee must comply with the election provision. Furthermore, this Court has expressly declined to follow Castleberry‘s holding that “the proper avenue for raising the statute of limitations defense under the Whistleblower Act is in a motion for summary judgment, not in a plea to the jurisdiction.” See Carter, 84 S.W.3d at 792 (holding that Whistleblower Act‘s statute-of-limitations provisions are jurisdictional requirements that may be challenged by way of plea to the jurisdiction).
To clarify, Lubertino does not hold that an employee must exhaust administrative remedies before filing suit. Lubertino holds only that an employee must adhere to statutory prerequisites to filing suit, including the election provision in
In her third issue, Smith argues that the trial court erred in dismissing her claims under the Texas Whistleblower Act. That act requires a public employee seeking whistleblower status to sue no later than 90 days after the alleged violation of the act.
TEX. GOV‘T CODE ANN. § 554.005 (Vernon Supp.2003). The single exception to this requirement is found in section 554.006 of the act. That section requires the employee to initiate action under the grievance or appeal procedures of her employer before filing suit.Id. § 554.006(a) . The time taken by participation in these procedures is excluded from the 90-day requirement of section 554.005.Id. § 554.006(c) . If the grievance or appeal is not resolved within 60 days, the employee may either terminate the procedure and file suit or exhaust the procedure and sue after exhaustion.Id. § 554.006(d) .
Smith, 101 S.W.3d at 189 (emphasis added).
Under Lubertino, and as apparently contemplated by Smith, the employee may either terminate the grievance proceedings and file a lawsuit within the time remaining under the Act or exhaust the grievance proceedings and file a lawsuit within 30 days. Smith, 101 S.W.3d at 189; Lubertino, 95 S.W.3d at 427. Lubertino is at odds with the majority opinion‘s assertion that the employee is free to ignore this election.2
When may an employee sue the State for violations under the Act? The election provision provides limitations periods that depend on the course of action an employee chooses. As stated above, the election provision provides that, if a final decision is not rendered before the 61st day after the date grievance procedures are initiated, an “employee make elect to: (1) exhaust the [grievance procedures] ..., in which event the employee must suе not later than the 30th days after the date those procedures are exhausted to obtain relief under this chapter; or (2) terminate [grievance procedures] ..., in which event the employee must sue within the time remaining under Section 554.005 to obtain relief under this chapter.”
Under the majority opinion, however, it is unclear what limitations periods would apply when an employee fails to elect under section 554.006(d). In footnote five, the majority opinion states that
Compliance with the Election Provision
Is the election provision of the Act voluntary or a condition precedent to filing a lawsuit? Three reasons underscore Lubertino‘s holding that an employee must comply with the election provision before filing suit. First, the plain language of the statute specifies what an employee must do before the employee may sue. Second, the legislative intent supports the interpretation that an employee may sue only after making an election. Third, the statute is consistent with other statutes that waive sovereign immunity. Each reason is addressed in turn.
1. Plain Language of the Statute
As addressed above, the plain language of the election provision states that an employee who has participated in grievance proceedings for 60 days may elect to sue within 30 days of exhausting the grievance proceedings, or within the time left to
2. Legislative Intent
Did the Legislature add the election provision only to have it be construed as voluntary and meaningless? By allowing employees to ignore the election provision, the majority permits employees to pursue grievance proceedings and lawsuits simultaneously. The majority holds that “a public employee, as statutory prerequisites to filing a Whistleblower lawsuit, must (1) timely initiate the governmental entity‘s grievance or appeal procedures and, then, (2) give the governmental entity at least 60 days to reach a final decision on the grievance or appeal.” Lawson, 122 S.W.3d at 284.
According to the majority, we should judicially interpret
If a final decision is not rendered before the 61st day after the date procedures are initiated under Subsection (a), the employee my bring suit.3
This interpretation, however, reduces the election provision to nothing more that advisory legislation. As we noted in Lubertino, “We cannot presume the Legislature enacted [the election provision] with the intent or expectation that employees be free to ignore it.” Lubertino, 95 S.W.3d at 428. We must avoid statutory interpretations that render portions of a particular statute meaningless or mere surplusage. See Chevron Corp. v. Redmon, 745 S.W.2d 314, 316 (Tex. 1987). By holding that an employee may ignore the electiоn provision, this is exactly what the majority does.
Action by the legislature supports construing the Act as permitting an employee to sue only after complying with the election provision. In 1995, the Legislature amended the Act by deleting the requirement that grievance proceedings be exhausted before a lawsuit could be filed, and by adding the election provision at issue here. See Act of May 22, 1993, 73rd Leg., R.S., ch. 268, § 1, 1993 Tex. Gen. Laws 583, 610 (amended 1995) (current version at
The panel opinion interprets the 1995 amendment as enabling employees to sue more easily. The Legislature‘s intent, however, appears more consistent with an effort to conserve state resources by (1) avoiding unnecessary duplication, through which the State would be required to address concurrent grievance proceedings and lawsuits involving the same set of facts, and by (2) avoiding futile grievance proceedings by allowing an employee to terminate the grievance proceedings after 60 days. As the majority readily acknowledges, the Legislature‘s purpose in
3. Consistent Statutory Construction
The majority‘s holding that an employee is free to ignore the election provision focuses on the Legislature‘s use of the word “may” in
Under general rules of statutory construction, the Legislature‘s choosing the word “may” makes logical sense. Had the Legislature chosen alternate words like “shall” or “must,” these could arguably be construed as imposing a duty on employees to file suit once the 60-day waiting period expires. See
The panel opinion focuses on the words “must initiate action” in
Because the plain language of
Election Provision Affects Jurisdiction
If a failure to make an election to exhaust or terminate grievance proceedings constitutes a failure to comply with the Act, does a court lose jurisdiction to hear the case?4 Courts that have interpreted
The majority attempts to distinguish these cases on the grounds that their rulings pertain to sections of the Act other than the election provision of
In Carter, this Court held, in the context of sovereign immunity, that the limitations provisions of the Act were statutory prerequisites that must be met to confer juris-
In sum, the Whistleblower Act creates the cause of action sued upon, provides procedural prerequisites for filing suit, and then waives sovereign immunity from suit once those requirements have been met. The trial court has no subject matter jurisdiction over the suit unless the State‘s sovereign immunity from suit is waived, and the State‘s sovereign immunity from suit is not waived unless the statutory prerequisites for filing suit have been met.
In the sovereign immunity context, causes of action derive from statutes whose provisions are mandatory, exclusive, and must be complied with in all respects. See Grounds v. Tolar Indep. Sch. Dist., 707 S.W.2d 889, 891 (Tex. 1986), overruled in part on other grounds, Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 76 (Tex. 2000); Carter, 84 S.W.3d at 792; Univ. of Texas-Pan American v. De Los Santos, 997 S.W.2d 817, 820 (Tex. App.-Corpus Christi 1999, no pet.). When a plaintiff fails to comply in all respects, the trial court has no jurisdiction over the cause of action. See Grounds, 707 S.W.2d at 891; Carter, 84 S.W.3d at 792; De Los Santos, 997 S.W.2d at 820.
The election provision in
Conclusion
The majority interprets the Act as allowing an employee to file suit anytime after waiting 60 days from the date the grievance proceedings are initiated. See Lawson, slip op. at 15. Had the Legislature intended a statute so simple in nature, it would have amended
I would uphold Lubertino, reverse the order of the trial court, and render judgment sustaining the county‘s plea to the jurisdiction.
EN BANC ORDER
PER CURIAM.
Appellant, Harris County, has filed a motion for rehearing in this case.
It is so ORDERED.
The motion was considered by the en banc Court, consisting of Chief Justice RADACK and Justices HEDGES, TAFT, NUCHIA, JENNINGS, KEYES, ALCALA, HANKS, and HIGLEY.
A majority of the en banc Court voted to deny the motion.
EVELYN V. KEYES, Justice, dissеnting from denial of motion for rehearing en banc.
I respectfully dissent from denial of rehearing. I believe the original dissenting opinion that was issued in this case is correct.
When a public employee is suspended or terminated for reporting violations of law by a governmental entity, the Whistleblower Act permits the employee two exclusive avenues to sue the State. The employee may either (1) exhaust the grievance proceedings and file suit within 30 days of the date of exhaustion or (2) terminate the grievance proceedings and file suit within the time remaining under the Act.
By allowing employees to ignоre the election provision, the majority permits employees to pursue grievance proceedings and lawsuits simultaneously in different forums. It thus invites duplicative proceedings, violating the principle of judicial economy the legislature intended to further by enacting
No. 11-03-00233-CR.
Court of Appeals of Texas, Eastland.
Aug. 29, 2003.
Leonard Marion Self, Amarillo, pro se.
Russell D. Thomason, Criminal Dist. Atty., Eastland, for appellee.
Panel consists of: ARNOT, C.J., and WRIGHT, J., and McCALL, J.
Opinion
W.G. ARNOT, III, Chief Justice.
Appellant seeks to appeal the trial court‘s denial of his motion requesting a free copy of trial court records. The trial court entered an order denying appellant‘s motion on July 9, 2003. Other than the order and appellant‘s notice of appeal, no other documents from the trial court clerk‘s record have been made a part of the appellate record in this cause. In order to expedite the consideration of this appeal, we have taken judicial notice of the trial court‘s file. See
The trial court‘s refusal to provide appellant with a free copy of the record does not invoke our jurisdiction. An intermediate court of appeals is not vested with jurisdiction to consider an appeal from an order denying a request for a free copy of the trial copy of the trial