Henry Lizcano and Robert Reed v. Mary Liscano by and Through Her Guardian of Person and Estate, Texas Health and Human Services, Commission

• Court: Court of Appeals of Texas
• Decided: March 2, 2023
• Docket: 13-22-00566-CV
• Status: Published

Opinion

NUMBER 13-22-00566-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG ____________________________________________________________

HENRY LIZCANO AND ROBERT REED, Appellants,

v.

MARY LISCANO BY AND THROUGH HER GUARDIAN OF PERSON AND ESTATE, TEXAS HEALTH AND HUMAN SERVICES COMMISSION, Appellee. ____________________________________________________________

On appeal from the County Court at Law No. 5 of Nueces County, Texas. ____________________________________________________________

MEMORANDUM OPINION Before Justices Benavides, Longoria, and Tijerina Memorandum Opinion by Justice Tijerina

On November 28, 2022, Henry Lizcano acting pro se attempted to perfect an

appeal from a trial court judgment against Robert Reed signed by the County Court at

Law Number 5 of Nueces County, Texas, on November 7, 2022. Lizcano is not a party to the underlying proceedings and the November 7, 2022 judgment. The document filed and

signed by Lizcano states that Lizcano is representing Reed “as a Limited Power Attorney.”

Lizcano does not state that he wishes to appeal the November 7, 2022 judgment, and

instead, he claims that Reed wishes to appeal. Reed did not sign the document, and he

did not file a notice of appeal stating that he desires to appeal the November 7, 2022

judgment.

On December 19, 2022, the Clerk of this Court notified Lizcano and Reed that the

notice of appeal does not comply with Texas Rules of Appellate Procedure 9.1, 25.1(c),

and 25.1(d)(3,5). See TEX. R. APP. P. 9.1 (setting out that either the parties’ attorney or

the parties acting pro se must sign the notice of appeal), 25.1(c) (providing that each party

seeking to alter the trial court’s judgment must file a notice of appeal), 25.(d)(3) (requiring

for the appealing parties to state each party desires to appeal), 25.1(d)(5) (“The notice of

appeal must . . . state the name of each party filing the notice . . . .”). The Court further

stated that if these defects were not cured, if it could be done, with an amended notice of

appeal within thirty days from the date of the Court’s letter, the matter would be referred

to the Court for further action.

On January 10, 2023, Lizcano filed a document purporting to be an amended

notice of appeal stating that Lizcano was “filing this written notice of appeal on behalf of

Appellant Robert Reed” and that “[b]oth” were “jointly” filing the notice of appeal. Reed

did not sign the amended notice of appeal, and Reed has not responded to our defect

letter.

2 Lizcano is not a party to the underlying trial court proceedings, and he is unable to

cure this defect. See TEX. R. APP. P. 25.1 (establishing that only a party may file a notice

of appeal); In re Lumbermens Mut. Cas. Co., 184 S.W.3d 718, 723 (Tex. 2006) (providing

that only parties of record may appeal a trial court’s judgment). Although a party to the

underlying proceedings, Reed has not filed a timely notice of appeal in this cause, and he

has not filed anything in this Court stating that he desires to appeal the November 7, 2022

judgment. See Baker v. Regency Nursing & Rehab. Centers, Inc., 534 S.W.3d 684 (Tex.

App.—Corpus Christi–Edinburg 2017, no pet.) (providing that appellate court lacks

jurisdiction when the appellant fails to file a timely notice of appeal); see also TEX. R. APP.

P. 9.1, 25.1. In addition, Lizcano is not a licensed attorney and is therefore prohibited

from representing Reed. See Rodriguez v. Marcus, 484 S.W.3d 656, 657 (Tex. App.—El

Paso 2016, no pet.) (“A non-lawyer may not, however, represent another party in litigation

or on appeal because it constitutes the unauthorized practice of law.”).

Thus, the Court, having considered the documents on file and the fact that Lizcano

is not a party to the underlying proceedings and judgment, is of the opinion that the appeal

as to Lizcano should be dismissed for want of jurisdiction. See TEX. R. APP. P. 25.1; In re

Lumbermens Mut. Cas. Co., 184 S.W.3d at 723. Likewise, as to Reed, after having

considered the documents on file and the fact that Reed has not filed a signed notice of

appeal stating that he desires to appeal the trial court’s judgment in this cause, the Court

is of the opinion that the appeal as to Reed should be dismissed for want of jurisdiction.

3 Accordingly, this appeal is dismissed for want of jurisdiction. See TEX. R. APP. 42.3

(a), (c).

JAIME TIJERINA Justice

Delivered and filed on the 2nd day of March, 2023