Burke’s HCA Houston Healthcare Kingwood Hospital Appeal Assigned to Fourteenth Court of Appeals

It’s clear when you’ve got a target on your back.

Mark Burke effectively changed the unconstitutional charging of fees for a clerk’s record for final judgments – but as the proposed amendment released on Dec. 18, 2023 is not in effect as yet – this is how the appeals court deal with their violation of the Constitution – by DENYING the motion for reconsideration without explanation, despite the fact that the court made lower courts include opinions regarding denials of interlocutory appeals. A farcical contradiction.

Introduction

Appellant Mark Burke (“Mark”) files this Motion to Reconsider his Motion to Waive Clerks Record Fee, seeking relief from the financial burden imposed by the Harris County District Clerk’s office.

The Court, in a per curiam, 3-panel concurring order, denied the request to waive the Clerk’s Record Fee based on two main reasons.

Facts and Argument

Appeals Court Findings

1. Mark has not claimed indigency nor requested IFP status, averting that he has suffered no constitutional violation in being charged a separate appeal fee for the Clerk’s Record.

2. The court suggests Mark cites no authority supporting his complaint about receiving a fair and impartial tribunal, deeming that he has “waived” the argument on appeal.

Response

Mark, in response to the Order, highlights omissions, oversight, and misinterpretations of the 3-panel.

He clarifies that the indigency option is not relevant to his current appeal arguments.

Mark contends that the recent Texas Supreme Court amendment, Misc. Docket No. 23-9093, allowing permissive appeals from interlocutory judgments to be accompanied by copies instead of certified copies, conflicts with the requirement for appeals from final judgments.

He argues that the imposition of substantial fees for certified copies is constitutionally flawed, creating discrepancies between different appeal types.

Mark asserts that electronic filing systems at both court levels ensure the certification of the docket, rendering the term “certified” in this context a misnomer.

Furthermore, he notes the contrast with appeals from U.S. District Courts to Circuit Courts, where no expenses are incurred for a “certified” Clerk’s Record.

Finally, due to the fact this Misc. Docket No. 23-9093 was issued so recently, this is understood to be the first case constitutionally challenging the judicial amendment.

Hon. Dan Hinde’s Statement

Mark challenges Hon. Dan Hinde’s statement that Mark’s arguments are “questions for the court of appeals, not this court.”

Mark argues that this, combined with charging fees for certifying an already certified docket, violates constitutional rights to a fair and impartial tribunal and appeal.

Mark emphasizes that Hon. Dan Hinde provided no citations or authorities in support of his statement, reinforcing Mark’s contention that he is unconstitutionally forced to pay appellate court costs in order to restate his arguments once more before an appellate court.

Legal Authority

Mark restates and invokes Lecroy v. Hanlon, 713 S.W.2d 335, 341 (Tex. 1986), emphasizing the right to redress grievances and access to the courts as substantial state constitutional rights.

Mark contends that clerk’s record fees unreasonably interfere with his right of access to the courts.

Conclusion

In light of the foregoing, Mark respectfully requests the Court to waive the fees associated with preparing the Clerk’s Record.

He asserts that such fees unjustly obstruct the protection of individual rights, including the fundamental and constitutional right of access to the courts.

Mark further requests that Senior Clerk Ms. Solomon release the record promptly and without additional cost, underscoring the digital nature of modern court processes and the already certified status of the docket.

RESPECTFULLY submitted this 7th day of December, 2023..

O R D E R

Before the court is appellant’s motion to waive the clerk’s record fee. Appellant primarily contends that the payment he is required to make for the preparation and filing of the clerk’s record is unconstitutional, denying him right of access to the courts.

See Tex. Const. art. 1, § 13.

Appellant has not provided any evidence to the trial court, or to this court, that he is indigent or otherwise cannot afford the fee for the preparation and filing of the clerk’s record.

See, e.g., Tex. R. Civ. P. 145 (setting out a mechanism for a party who cannot afford payment of court costs to proceed without paying court costs, by filing a Statement of Inability to Afford Payment of Court Costs with the trial court).

Accordingly, we presently see no constitutional infirmity in appellant paying for the clerk’s record in order to proceed with this appeal.

Cf. Griffin Indus., Inc. v. Honorable Thirteenth Ct. of Appeals, 934 S.W.2d 349 (Tex. 1996) (acknowledging that rights of open access to courts protect “those who can[not] afford to pay the fees to get in”).

In addition, appellant contends that being required to pay for the clerk’s record violates his right to a fair and impartial tribunal for the trial and appeal of his dispute.

However, as appellant cites no authority for this contention, we conclude he has waived that argument.

See Gray v. Nash, 259 S.W.3d 286, 294 (Tex. App.—Fort Worth 2008, pet. denied)

(acknowledging that parties can waive an argument through inadequate briefing, such as by “offering no citation to any authority to support [a] contention”).

For the reasons discussed above, we deny appellant’s motion to waive the clerk’s record fee.

PER CURIAM

Panel Consists of Justices Hassan, Poissant, and Wilson.

Introduction

Appellant Mark Burke (“Mark”) urgently files this Motion to Waive Clerks Record Fee, seeking relief from the financial burden imposed by the Harris County District Clerk’s office.

The motion is prompted by an email received from Ms. Solomon, Senior Clerk, indicating potential costs exceeding $1,000.00 for the clerk’s record preparation, a cost Mark contends is constitutionally infirm.

Since the initiation of this appeal, the Texas Supreme Court has amended Misc. Docket No. 23-9093, permitting appeals to be accompanied by copies, rather than certified copies, of the lower court record.

This amendment conflicts with the requirement for appeals from final judgments, imposing a substantial fee for the preparation of a fully certified copy of the record.

Mark asserts that such a discrepancy is constitutionally flawed, arguing that distinct appeal types should not be subject to different standards of record preparation fees, lest the appeal be dismissed for non-payment.

As we approach the close of 2023, immersed in the digital age and advancements in artificial intelligence, litigants are mandated to file electronically both at the lower court and on appeal.

The clerk’s record at the lower court necessitates electronic filing, subject to approval by a court clerk (gatekeeper), ensuring that all entries on the court docket are audited and authorized by the court’s staff.

Mark contends that the term “certified” in this context is a misnomer, as the docket is inherently certified through this meticulous process.

Comparatively, appeals from United States District Courts to Circuit Courts do not incur expenses for a “certified” Clerk’s Record. Instead, it is prepared at no cost to appellants, as the record is provided in electronic format to the respective appeals court and litigants.

This parallels the electronic filing system at the lower court level, where all filings undergo scrutiny and approval by court staff before being added to the docket.

Background and Legal Context

In Mark’s case, the lower court severed parties, a decision Mark contends is void. Through a contested and disputed process lacking jurisdiction, the court assigned Hon. Dan Hinde to the severed case, involving two judges.

This is evident in BURKE, MARK v REEDER, LAUREN HONORABLE THE 202268307A. In an Order dated August 2, 2023, docketed as ORD SGN DENYING RECONSIDERATION, Hon. Dan Hinde opined that Mark’s challenges are “questions for the court of appeals, not this court,” further affirming Mark’s belief that charging appellants fees to “certify” an already “certified” docket and deflecting pivotal questions to the court of appeals without citing relevant case law violate constitutional rights to a fair and impartial tribunal and appeal.

In Lecroy v. Hanlon, 713 S.W.2d 335, 341 (Tex. 1986), the court emphasized the right to redress grievances and access to the courts as substantial state constitutional rights. The government bears the burden of demonstrating that the legislative purpose justifies any interference with an individual’s right of access.

Mark contends that the clerk’s record fees arbitrarily and unreasonably interfere with his right of access to the courts.

Conclusion

In light of the foregoing, Mark respectfully requests the Court to waive the fees associated with preparing the Clerk’s Record. Mark asserts that such fees unjustly obstruct his constitutional right of access to the courts.

He further requests that Senior Clerk Ms. Solomon release the record to this Court promptly and without additional cost, emphasizing the digital nature of modern court processes and the already certified status of the docket.

RESPECTFULLY submitted this 29th day of November, 2023.