Henry Lizcano and Robert Reed v. Mary Liscano by and Through Her Guardian of Person and Estate, Texas Health and Human Services, Commission

NUMBER 13-22-00566-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
____________________________________________________________
HENRY LIZCANO AND
ROBERT REED, Appellants,
v.
MARY LISCANO BY AND
THROUGH HER GUARDIAN OF
PERSON AND ESTATE, TEXAS HEALTH
AND HUMAN SERVICES COMMISSION, Appellee.
____________________________________________________________
On appeal from the County Court at Law No. 5
of Nueces County, Texas.
____________________________________________________________
MEMORANDUM OPINION
Before Justices Benavides, Longoria, and Tijerina
Memorandum Opinion by Justice Tijerina
On November 28, 2022, Henry Lizcano acting pro se attempted to perfect an
appeal from a trial court judgment against Robert Reed signed by the County Court at
Law Number 5 of Nueces County, Texas, on November 7, 2022. Lizcano is not a party to
the underlying proceedings and the November 7, 2022 judgment. The document filed and
signed by Lizcano states that Lizcano is representing Reed “as a Limited Power Attorney.”
Lizcano does not state that he wishes to appeal the November 7, 2022 judgment, and
instead, he claims that Reed wishes to appeal. Reed did not sign the document, and he
did not file a notice of appeal stating that he desires to appeal the November 7, 2022
judgment.
On December 19, 2022, the Clerk of this Court notified Lizcano and Reed that the
notice of appeal does not comply with Texas Rules of Appellate Procedure 9.1, 25.1(c),
and 25.1(d)(3,5). See TEX. R. APP. P. 9.1 (setting out that either the parties’ attorney or
the parties acting pro se must sign the notice of appeal), 25.1(c) (providing that each party
seeking to alter the trial court’s judgment must file a notice of appeal), 25.(d)(3) (requiring
for the appealing parties to state each party desires to appeal), 25.1(d)(5) (“The notice of
appeal must . . . state the name of each party filing the notice . . . .”). The Court further
stated that if these defects were not cured, if it could be done, with an amended notice of
appeal within thirty days from the date of the Court’s letter, the matter would be referred
to the Court for further action.
On January 10, 2023, Lizcano filed a document purporting to be an amended
notice of appeal stating that Lizcano was “filing this written notice of appeal on behalf of
Appellant Robert Reed” and that “[b]oth” were “jointly” filing the notice of appeal. Reed
did not sign the amended notice of appeal, and Reed has not responded to our defect
letter.
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Lizcano is not a party to the underlying trial court proceedings, and he is unable to
cure this defect. See TEX. R. APP. P. 25.1 (establishing that only a party may file a notice
of appeal); In re Lumbermens Mut. Cas. Co., 184 S.W.3d 718, 723 (Tex. 2006) (providing
that only parties of record may appeal a trial court’s judgment). Although a party to the
underlying proceedings, Reed has not filed a timely notice of appeal in this cause, and he
has not filed anything in this Court stating that he desires to appeal the November 7, 2022
judgment. See Baker v. Regency Nursing & Rehab. Centers, Inc., 534 S.W.3d 684 (Tex.
App.—Corpus Christi–Edinburg 2017, no pet.) (providing that appellate court lacks
jurisdiction when the appellant fails to file a timely notice of appeal); see also TEX. R. APP.
P. 9.1, 25.1. In addition, Lizcano is not a licensed attorney and is therefore prohibited
from representing Reed. See Rodriguez v. Marcus, 484 S.W.3d 656, 657 (Tex. App.—El
Paso 2016, no pet.) (“A non-lawyer may not, however, represent another party in litigation
or on appeal because it constitutes the unauthorized practice of law.”).
Thus, the Court, having considered the documents on file and the fact that Lizcano
is not a party to the underlying proceedings and judgment, is of the opinion that the appeal
as to Lizcano should be dismissed for want of jurisdiction. See TEX. R. APP. P. 25.1; In re
Lumbermens Mut. Cas. Co., 184 S.W.3d at 723. Likewise, as to Reed, after having
considered the documents on file and the fact that Reed has not filed a signed notice of
appeal stating that he desires to appeal the trial court’s judgment in this cause, the Court
is of the opinion that the appeal as to Reed should be dismissed for want of jurisdiction.
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Accordingly, this appeal is dismissed for want of jurisdiction. See TEX. R. APP. 42.3
(a), (c).
JAIME TIJERINA
Justice
Delivered and filed on the
2nd day of March, 2023
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