Diane R. Mendez v. Pablo Garcia ( 2019 )

NUMBER 13-19-00144-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
____________________________________________________________
DIANE R. MENDEZ, ET AL., Appellants,
v.
PABLO GARCIA, Appellee.
____________________________________________________________
On appeal from the County Court at Law No. 3
of Bexar County, Texas.
____________________________________________________________
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Benavides and Longoria
Memorandum Opinion by Justice Longoria
Appellants Diane R. Mendez and Angelica Mendez filed a pro se notice of appeal
from a writ of possession issued in an eviction case. Their appeal was transferred to this
Court from the Fourth Court of Appeals by order of the Texas Supreme Court. See TEX.
GOV'T CODE ANN. § 22.220(a) (delineating the jurisdiction of appellate courts); id. § 73.001
(granting the supreme court the authority to transfer cases from one court of appeals to
another at any time that there is “good cause” for the transfer).
The appellants’ brief in this case was due on June 17, 2019. On June 20, 2019,
the Clerk of the Court notified appellants that their brief had not been timely filed and that
the appeal was subject to dismissal for want of prosecution under Texas Rule of Appellate
Procedure 38.8(a)(1), unless within ten days from the date of receipt of the courts letter,
appellants reasonably explained the failure and the appellee was not significantly injured
by the appellants’ failure to timely file a brief. See TEX. R. APP. P. 38.8(a)(1). Appellants
have not responded to the Court’s directive and have not filed a brief in this matter.
The Texas Rules of Appellate Procedure authorize the appellate courts to dismiss
appeals for want of prosecution in civil cases when the appellant fails to file its brief within
the prescribed time. See generally id. R. 38.8(a); Jimenez v. Soria, 224 S.W.3d 722,
722 (Tex. App.—El Paso 2006, no pet.); State v. Palacios, 968 S.W.2d 467, 468 (Tex.
App.—Fort Worth 1998, no pet.); Elizondo v. City of San Antonio, 975 S.W.2d 61, 63
(Tex. App.—San Antonio 1998, no pet.). Rule 38.8 of the rules of appellate procedure
governs the failure to file an appellant’s brief in civil cases and provides as follows:
(a) Civil Cases. If an appellant fails to timely file a brief, the appellate
court may:
(1) dismiss the appeal for want of prosecution, unless the
appellant reasonably explains the failure and the appellee is
not significantly injured by the appellant’s failure to timely file
a brief;
(2) decline to dismiss the appeal and give further direction to the
case as it considers proper; or
2
(3) if an appellee’s brief is filed, the court may regard that brief as
correctly presenting the case and may affirm the trial court’s
judgment upon that brief without examining the record.
TEX. R. APP. P. 38.8(a)(1); see also Brown v. Bryant, 181 S.W.3d 901, 902 (Tex. App.—
Dallas 2006, pet. denied) (per curiam) (dismissing an appeal for the failure to file the
appellant’s brief).
The Court, having examined and fully considered the documents on file, is of the
opinion that the appeal should be dismissed for want of prosecution. See TEX. R. APP.
P. 38.8(a)(1); id. R. 42.3(b); Jimenez, 224 S.W.3d at 722. Appellants have failed to
either reasonably explain the failure to file a brief, file a motion for extension of time to file
the brief, or file the brief. See TEX. R. APP. P. 38.8(a)(1); id. R. 10.5(b)(1)(C) (requiring
extension motions to include the facts relied on to reasonably explain the need for an
extension of time); Simon v. Dillard’s, Inc., 86 S.W.3d 798, 800–01 (Tex. App.—Houston
[1st Dist.] 2002, order) (per curiam) (same). Accordingly, we dismiss the appeal for want
of prosecution. See TEX. R. APP. P. 38.8(a), 42.3(b).
NORA L. LONGORIA
Justice
Delivered and filed the
18th day of July, 2019.
3