in the Interest of A.F., a Child

IN THE
TENTH COURT OF APPEALS
No. 10-11-00132-CV
IN THE INTEREST OF A.F., A CHILD
From the 278th District Court
Madison County, Texas
Trial Court No. 09-11883-09
MEMORANDUM OPINION
The trial court held a bench trial in this termination proceeding on September 4,
2009. Based on the motion for new trial, the trial court rendered judgment in some
manner on November 6, 2009 but the order terminating the parental rights between
both of the parents, J.R. and J.F., and the child, A.F., was not signed until December 4,
2009. The parents’ notices of appeal and statements of points were filed on December
18, 2009. The notices of appeal were not copied to this Court as required by Rule 25.1(e)
of the Texas Rules of Appellate Procedure. Thus, copies of the notices of appeal were
not received by this Court until the clerk’s record was received. Cf TEX. R. APP. P.
25.2(e) (In criminal cases, the trial court “clerk must then immediately send one copy of
each [the notice of appeal and certification of right of appeal] to the clerk of the
appropriate court of appeals and, if the defendant is the appellant, one copy of each to
the State's attorney.” (insertion added)).
The clerk’s record was certified on April 8, 2010. But it was not received by this
Court until April 12, 2011 and filed on April 21, 2011. The receipt of the clerk’s record
with the notices of appeal was the first indication that this Court was aware that an
appeal of the termination order had been brought.
The lengthy delay has not been explained or accounted for in any manner. There
is no indication the reporter’s record has been requested. In the documents we have
received, in essence only the clerk’s record, there is no indication that the clerk’s record
or the reporter’s record were timely filed, nor even timely requested as required to
invoke this Court’s jurisdiction of the appeal of the determination that the points raised
by the parents in their statements of points are frivolous. In the Interest of S.T., 239
S.W.3d 452, 455 (Tex. App.—Waco 2007, order).
The Clerk of this Court warned the parents by letter dated April 27, 2011 that this
proceeding would be dismissed for want of jurisdiction unless any party desiring to
pursue the appeal files a response demonstrating the Court’s jurisdiction within 14 days
from the date of the letter. TEX. R. APP. P. 42.3(a), 44.3. The Clerk also warned the
parents that, notwithstanding demonstration of this Court’s jurisdiction, this Court
would dismiss this appeal for want of prosecution unless the party or parties desiring to
continue the appeal demonstrate good cause for the lengthy delay in prosecution of the
appeal within 14 days from the date of the letter. TEX. R. APP. P. 42.3(b), 44.3.
In the Interest of A.F. Page 2
Finally, the Clerk warned that failure to file a response as requested would result
in the dismissal of this appeal without further notification for failure to comply with the
order or a notice from the Clerk. TEX. R. APP. P. 42.3(c). We have received no response
from either of the parents.
Accordingly, this appeal is dismissed.
Absent a specific exemption, the Clerk of the Court must collect filing fees at the
time a document is presented for filing. TEX. R. APP. P. 12.1(b); Appendix to TEX. R. APP.
P., Order Regarding Fees (Amended Aug. 28, 2007, eff. Sept. 1, 2007). See also TEX. R.
APP. P. 5; 10TH TEX. APP. (WACO) LOC. R. 5; TEX. GOV’T CODE ANN. § 51.207(b); §
51.941(a) (West 2005); and § 51.208 (West Supp. 2010). Under these circumstances, we
suspend the rule and order the Clerk to write off all unpaid filing fees in this case. TEX.
R. APP. P. 2. The write-off of the fees from the accounts receivable of the Court in no
way eliminates or reduces the fees owed.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Appeal dismissed
Opinion delivered and filed May 25, 2011
[CV06]
In the Interest of A.F. Page 3