In the Matter of the Estate of Donnie M. Rushing v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: June 14, 2023
• Docket: 12-23-00126-CV
• Status: Published

Opinion

NO. 12-23-00126-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

IN THE MATTER OF THE ESTATE § APPEAL FROM THE 115TH OF DONNIE M. RUSHING, DECEASED § DISTRICT COURT

§ UPSHUR COUNTY, TEXAS

MEMORANDUM OPINION PER CURIAM

This appeal is being dismissed for failure to comply with a requirement of the appellate rules, a court order, or a notice from the clerk requiring a response or other action within a specified time. See TEX. R. APP. P. 42.3(c). A party who is not excused by statute or the appellate rules from paying costs must pay-- at the time an item is presented for filing--whatever fees are required by statute or Texas Supreme Court order. TEX. R. APP. P. 5; see TEX. R. APP. P. 20.1. An appellate court may enforce Rule 5 by any order that is just. TEX. R. APP. P. 5. After giving ten days’ notice, an appellate court may dismiss an appeal because the appellant failed to comply with a requirement of the appellate rules, a court order, or a notice from the clerk requiring a response or other action within a specified time. TEX. R. APP. P. 42.3(c). On May 16, 2023, the Clerk of this Court notified Appellant, Jodi Velin, that the filing fee in this appeal is due and that the appeal would be subject to dismissal if the fee was not paid on or before May 26. The date for remitting the filing fee passed, and Appellant has not paid the fee or otherwise shown that she is excused from paying the fee. Because Appellant failed, after notice, to comply with Rule 5, the appeal is dismissed. See TEX. R. APP. P. 42.3(c).1

Opinion delivered June 14, 2023. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

1 We also note that Appellant has not filed the required docketing statement. See TEX. R. APP. P. 32.1. Nor

does Appellant’s notice of appeal comply with appellate Rule 9.5 or Section 51.017(a) of the Texas Civil Practice and Remedies Code. See TEX. R. APP. P. 9.5 (service); see also TEX. CIV. PRAC. & REM. CODE ANN. § 51.017(a) (West Supp. 2019) (notice of appeal must be served on each court reporter responsible for preparing reporter’s record).

2 COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

JUNE 14, 2023

IN THE MATTER OF THE ESTATE OF DONNIE M. RUSHING, DECEASED

Appeal from the 115th District Court of Upshur County, Texas (Tr.Ct.No. 209-22)

THIS CAUSE came to be heard on the appellate record; and the same being considered, it is the opinion of this Court that this appeal should be dismissed.

It is therefore ORDERED, ADJUDGED and DECREED by this Court that the appeal be, and the same is, hereby dismissed; and that this decision be certified to the court below for observance.

By per curiam opinion. Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J