Jose A. Garcia v. Carlos Abrego

• Court: Court of Appeals of Texas
• Decided: August 8, 2013
• Docket: 13-12-00390-CV
• Status: Published

Opinion

NUMBER 13-12-00390-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG ____________________________________________________________

JOSE A. GARCIA, Appellant,

v.

CARLOS ABREGO, Appellee. ____________________________________________________________

On appeal from the 404th District Court of Cameron County, Texas. ____________________________________________________________

MEMORANDUM OPINION Before Justices Rodriguez, Benavides, and Longoria Memorandum Opinion Per Curiam

The appellant's brief in the above cause was due on October 14, 2012. On

October 12, 2012, appellant filed a brief that was not in compliance with the Texas Rules

of Appellate Procedure. The brief failed generally to comply with the Texas Rules of

Appellate Procedure. See TEX. R. APP. P. 38.1. On October 12, 2012, the Clerk of the Court notified appellant that the brief failed to

comply with 38.1 (a), (b), (c), (d), (e), (f), (g) and (h) of the Texas Rules of Appellate

Procedure. See TEX. R. APP. P. 38.1. An amended brief was received on November 5,

2012, and a second amended brief was received on November 28, 2012. The first and

second amended briefs do not comply with the Texas Rules of Appellate Procedure and

appellant was directed to file a brief in compliance with the Texas Rules of Appellate

Procedure.

On December 17, 2012, the Court received a third amended brief. The brief fails

generally to comply with Rules 9.5(e) and 38.1 (h) and (k) of the Texas Rules of Appellate

Procedure. See id. 9.5 (e), 38.1. A certificate of service is required. See id. 9.5 (e).

The third amended brief does not contain the summary of the argument as required by

Rule 38.1(h); and does not contain an appendix as required by Rule 38.1(k). See id.

On December 19, 2013, appellant was directed to file an amended brief in

compliance with the Texas Rules of Appellate Procedure within ten days of the date of the

letter, and notified that if the Court received another brief that did not comply, the Court

may strike the brief, prohibit appellant from filing another, and proceed as if appellant had

failed to file a brief, under which circumstances the Court may affirm the judgment or

dismiss the appeal. See Id. 38.9(a), 42.3(b),(c).

Appellant did not respond and the appeal was abated by this Court on January 15,

2013, due to the bankruptcy of one of the parties to this appeal. See 11 U.S.C. §362;

see generally TEX. R. APP. P. 8. On July 10, 2013, the appeal was reinstated and

appellant was again notified that the brief fails generally to comply with Rules 9.5(e) and

38.1 (h) and (k) of the Texas Rules of Appellate Procedure. See id. 9.5 (e), 38.1. A

2 certificate of service is required. See id. 9.5 (e). The third amended brief does not

contain the summary of the argument as required by Rule 38.1(h); and does not contain

an appendix as required by Rule 38.1(k). See id.

Appellant was directed to file an amended brief in compliance with the Texas Rules

of Appellate Procedure within ten days of the date of the letter, and notified that if the

Court received another brief that did not comply, the Court may strike the brief, prohibit

appellant from filing another, and proceed as if appellant had failed to file a brief, under

which circumstances the Court may affirm the judgment or dismiss the appeal. See Id.

38.9(a), 42.3(b),(c). On July 15, 2013, appellant filed a letter with the Court. The letter

cannot be considered as an appellate brief because it fails to comply with Texas Rule of

Appellate Procedure 38.1 concerning the substantive requirements for an appellant’s

brief. Specifically, the letter fails to include any indicia of an appellate brief as described

by the rules.

Pro se litigants are held to the same standards as licensed attorneys, and they

must therefore comply with all applicable rules of procedure. Mansfield State Bank v.

Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978). If the appellate court determines that the

briefing rules have been flagrantly violated, it may require a brief to be amended,

supplemented, or redrawn. TEX. R. APP. P. 38.9(a). If the appellant does not file

another brief that complies with the rules of appellate procedure, the appellate court may

strike the brief, prohibit the party from filing another, and proceed as if the party had failed

to file a brief. Id. Pursuant to Texas Rule of Appellate Procedure 38.8(a), where an

appellant has failed to file a brief, the appellate court may dismiss the appeal for want of

prosecution.

3 Accordingly, we strike appellant’s non-conforming brief and order the appeal

DISMISSED FOR WANT OF PROSECUTION. See TEX. R. APP. P. 38.8(a), 38.9(a),

42.3(b)(c). Any pending motions are dismissed as moot.

PER CURIAM

Delivered and filed the 8th day of August, 2013.