Jasper Hardin v. Martin Ed Thornton, Malcom Wilkes and Charles Lynch ( 1996 )

cv5-566 TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-95-00566-CV



Jasper Hardin, Appellant

v.

Martin Ed Thornton, Malcom Wilkes, and Charles Lynch, Appellees



FROM THE DISTRICT COURT OF MILAM COUNTY, 20TH JUDICIAL DISTRICT NO. 24,644, HONORABLE CHARLES E. LANCE, JUDGE PRESIDING

PER CURIAM

We will dismiss this case for want of jurisdiction because Jasper Hardin did not perfect his appeal properly or timely.

Mr. Hardin defectively attempted to perfect his appeal by filing an affidavit of inability to pay costs. He filed an affidavit, but failed to give notice of the filing of his affidavit to the opposing party as required by rule. See Tex. R. App. P. 40(a)(3)(B). The rule provides that, if the appellant fails to give the proper notice, he "shall not be entitled to prosecute the appeal without paying the costs or giving security therefor." Tex. R. App. P. 40(a)(3)(B). The clerk of this Court reminded Mr. Hardin of this rule and gave him the opportunity to show in a supplemental transcript that he had complied with the rule in filing his affidavit of inability. The clerk gave him the alternative of prosecuting his appeal by paying costs or giving security. Mr. Hardin responded by filing a new affidavit of inability, this time giving the proper notice. This new affidavit was filed three weeks after the deadline and was untimely. Mr. Hardin has not attempted to perfect his appeal in any other manner. He has filed no such deposit or bond. He has thus failed to amend his defective perfection. We therefore have no jurisdiction over his appeal. ⁽¹⁾

We dismiss the appeal for want of jurisdiction. We accordingly dismiss Hardin's pending motions for extensions of time to file the transcript and appellant's brief, as well as the amended motion for extensions of those time periods.

Before Justices Powers, Jones and B. A. Smith

Dismissed for Want of Jurisdiction

Filed: March 20, 1996

Do Not Publish

1. We note as an aside that Mr. Hardin's brief recapitulates his trial-court complaints, but does not complain about any specific action taken by the trial court. His failure to assert error would give this Court nothing to review were we able to reach the merits.