Christopher Michael Dawson v. Jessica Elizabeth Dawson

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

CHRISTOPHER MICHAEL DAWSON, § No. 08-10-00158-CV Appellant, § Appeal from the v. § 109th Judicial District Court § JESSICA ELIZABETH DAWSON, of Winkler County, Texas § Appellee. (TC# 15,702) §

MEMORANDUM OPINION

This appeal is before the Court on its own motion to determine whether it should be

dismissed. Because Appellant has failed to pay the filing fee or file a brief, we will dismiss the

appeal.

Appellant filed his notice of appeal on May 21, 2010, but he did not pay the $125 filing

fee or submit an affidavit of indigence. By letter dated June 9, 2010, the clerk of this Court

instructed Appellant to pay the filing fee within twenty days from the date of the letter. The clerk

advised Appellant that failure to pay the filing fee could result in dismissal of the appeal.

Appellant did not respond to the letter, but he filed an affidavit of indigency in the trial court on

July 12, 2010. This affidavit was untimely because it was not filed before or with the notice of

appeal and Appellant did not file a motion for extension of time to file the affidavit. See

TEX .R.APP .P. 20.1(c)(1), (3); see also TEX .R.APP .P. 5 (requiring parties to pay the filing fees at

the time an item is presented for filing); Few v. Few, 271 S.W.3d 341, 346 (Tex.App.--El Paso

2008, pet. denied)(stating that Rule 20.1(c) strictly requires that the affidavit of indigency be filed before or with the notice of appeal).

By letter dated July 19, 2010, the clerk again instructed Appellant to pay the filing fee

within twenty days and that failure to do so could result in dismissal of the appeal. Appellant did

not respond.

Finally, by letter dated August 31, 2010, the clerk notified Appellant of the Court’s intent

to dismiss this appeal for want of prosecution due to his failure to file a brief or request an

extension of time to do so. The clerk advised Appellant that the appeal would be dismissed

without further notice unless the Court received a response within ten days providing a reason

why the appeal should be continued. Appellant did not respond to this letter.

This Court has the authority to dismiss an appeal if the appellant fails to comply with the

appellate rules or a notice from the clerk requiring a response or other action within a specified

time. See TEX .R.APP .P. 42.3(c). The Court also has the authority to dismiss an appeal for want

of prosecution if the appellant fails to file a brief within the time prescribed and provides no

reasonable explanation for the failure. See TEX .R.APP .P. 38.8(a)(1). Appellant failed to pay the

filing fee or submit a timely affidavit of indigency, failed to file a brief, and failed to respond to

the clerk’s letters. Accordingly, this appeal is dismissed.

September 22, 2010 DAVID WELLINGTON CHEW, Chief Justice

Before Chew, C.J., McClure, and Rivera, JJ.

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