Donald Foster v. David P. Weeks

IN THE

TENTH COURT OF APPEALS

 

No. 10-08-00162-CV

Donald Foster,

                                                                                    Appellant

 v.

David P. Weeks,

                                                                                    Appellee

From the 278th District Court

Walker County, Texas

Trial Court No. 24,211

memorandum Opinion

            Donald Foster appealed the denial of a writ of mandamus.  According to the trial court clerk’s form attached to the notice of appeal, the judgment or final order being appealed was rendered on April 10, 2008.  It also appeared from the form that no motion for new trial was filed. The notice of appeal was, therefore, due to be filed on May 12, 2008.  Tex. R. App. P. 26.1(a)(1).  Foster’s notice of appeal was filed by the trial court on May 13, 2008. 

            The Clerk of this Court notified Foster by letter that the notice of appeal appeared untimely and that his appeal was subject to dismissal for want of jurisdiction.  Foster was further informed that a motion for extension of time to file the notice of appeal is implied if the notice of appeal is filed within 15 days of the date the notice is due; but Foster must still supply a reasonable explanation for the late filing of the notice of appeal.  See Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997).  Foster was warned that “the Court may dismiss the appeal unless, within 21 days from the date of this letter, a response is filed showing a reasonable explanation for the late filing of the notice of appeal.” More than 21 days have passed and Foster has not provided a reasonable explanation for the late filing of the notice of appeal.

            Additionally, the Clerk of this Court notified Foster by letter dated May 19, 2008 that a $175 filing fee was due and should be paid within 10 days of that date to prevent dismissal.  The fee was not paid.  By letter dated May 29, 2008, the Clerk of this Court notified Foster that the filing fee was past due and that unless he obtained indigent status for the purposes of appeal, the payment of the fling fee was required.  See Tex. R. App. P. 20.1.  Foster was warned that if the fee was not paid within 10 days from the date of the letter, the appeal would be presented to the Court for dismissal.  See Tex. R. App. P. 42.3(c).  More than 10 days have passed and neither the filing fee has been paid nor has any document relating to indigent status on appeal been received.

            Further, by letter dated May 27, 2008, the Clerk of this Court notified Foster that the clerk’s record in this appeal had not been filed because apparently Foster had failed to pay or make arrangements to pay the clerk’s fee for preparation of the record.  Foster was warned that he must pay or make arrangements to pay the clerk’s fee and notify this Court of the actions taken within 21 days from the date of the letter or the appeal may be dismissed for want of prosecution.  See Tex. R. App. P. 37.3(b).  More than 21 days have passed and we have not been notified whether Foster paid or made arrangements to pay the clerk’s fee.

            Accordingly, this appeal is dismissed.

                                                                        TOM GRAY

                                                                        Chief Justice

Before Chief Justice Gray,

            Justice Vance, and

            Justice Reyna

Appeal dismissed

Opinion delivered and filed July 16, 2008

[CV06]