Filed: Aug. 17, 2017
Latest Update: Aug. 17, 2017
Summary: ORDER PER CURIAM . This is an appeal from a judgment signed January 30, 2017, by the county court. Appellant has made it known to this court that she believes her appeal from that judgment is to the district court, not the court of appeals, and she wants this appeal to proceed in the district court. We addressed her contention in an order issued May 2, 2017, in which we cited the governing constitutional and statutory provisions and made clear her appeal is to this court, not the district co
Summary: ORDER PER CURIAM . This is an appeal from a judgment signed January 30, 2017, by the county court. Appellant has made it known to this court that she believes her appeal from that judgment is to the district court, not the court of appeals, and she wants this appeal to proceed in the district court. We addressed her contention in an order issued May 2, 2017, in which we cited the governing constitutional and statutory provisions and made clear her appeal is to this court, not the district cou..
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ORDER
PER CURIAM.
This is an appeal from a judgment signed January 30, 2017, by the county court. Appellant has made it known to this court that she believes her appeal from that judgment is to the district court, not the court of appeals, and she wants this appeal to proceed in the district court. We addressed her contention in an order issued May 2, 2017, in which we cited the governing constitutional and statutory provisions and made clear her appeal is to this court, not the district court.
Appellant's brief was due on May 1, 2017, but not filed. On May 11, 2017, we ordered appellant to file a brief by May 31, 2017, or her appeal would be dismissed for want of prosecution.
On May 12, 2017, appellant filed a document entitled, "Complimentary Copy of `Petitioner's Appellate Brief on the Merits] as Filed with Texas District Court, Harris County." Despite our order explaining that this court has jurisdiction over her appeal, not the district court, the following language was written on the cover page:
Notice of appeal specifically requested district court's jurisdiction and specifically stated that the appeal will be taken to district court for all the reasons raised in petitioner's appellate brief.
It is clear appellant does not want to prosecute her appeal in this court, but it is equally clear she wants to prosecute her appeal. Under this unique circumstance, we do not believe we can construe appellant's statements as a motion for voluntary dismissal of the appeal. See Tex. R. App. P. 42.1(a)(1). Further, we accepted the May 12 "complimentary copy" of appellant's district court brief as her brief in this court. Had we not accepted the brief, we would have dismissed the appeal for lack of prosecution as cautioned in our May 11, 2017 order.
However, the May 12, 2017 brief does not comply with the briefing requirements of Texas Rule of Appellate Procedure 38.1. Specifically:
1. The brief does not contain a statement of the case. Tex. R. App. P. 38.1(d). A statement of the case "should be supported by record references, should seldom exceed one-half page, and should not discuss the facts." Id. The 12-page "summary" that begins on page 8 of the brief contains no record references and discusses the facts of the case.
2. The brief does not contain a statement of the legal issues presented for review. Tex. R. App. P. 38.1(f).
3. The brief does not contain a cohesive statement of facts. Tex. R. App. P. 38.1(g). "The brief must state concisely and without argument the facts pertinent to the issues or points presented. . . . The statement must be supported by record references." Id. The "Factual Background and Prior Procedures" section, which begins on page 34, contains no record references. There are also assertions of fact strewn throughout the brief; they are not accompanied by record references, either.
4. The "Factual Background and Prior Procedures" section follows the argument section. The rule requires the statement of facts to precede the summary of the argument and the argument. See Tex. R. App. P. 38.1 ("The appellant's brief must, under appropriate headings and in the order here indicated, contain the following:") (boldface added).
5. The brief does not contain a proper summary of the argument, which must be a "succinct, clear, and accurate statement of the arguments made in the body of the brief." Tex. R. App. P. 38.1(h). Rather, appellant's "Summary of Arguments" section spans fourteen pages.
6. The brief does not contain an argument section separate from the 14-page "summary of the arguments," and that "summary" contains no citations to case law and only a handful of citations to constitutional or statutory authority. Tex. R. App. P. 38.1(i) ("The brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.").
7. The brief lists the contents of an appendix, but no appendix is included. Tex. R. App. P. 38.1(k).
Appellee filed a brief that both complains of the violations of Rule 38.1 in appellant's brief and offers argument in support of affirmance.
Appellant filed a reply brief on July 26, 2017, in which she continues to contest the jurisdiction of this court and accuses the clerk of this court of malfeasance. The reply brief has appendices attached, which are said to serve as a supplement to appellant's opening brief.
If the court determines that Rule 38 has been flagrantly violated, it may require a brief to be amended, supplemented, or redrawn. Tex. R. App. P. 38.9(a). If the court determines, before or after submission, that the case has not been properly presented in the briefs, or that the law and authorities have not been properly presented in the briefs, the court may postpone submission, require additional briefing, and make any other order necessary for a satisfactory submission of the case. Tex. R. App. P. 38.9(b).
Accordingly, we order as follows:
• Appellant's May 12, 2017 "complimentary copy" of her district court brief, which we construe as her appellate brief, is STRICKEN.
• Appellant's July 26, 2017 reply brief, which is premised on and purports to supplement her May 12, 2017 brief, is STRICKEN.
• Appellant is ordered to file a brief that complies with the Texas Rules of Appellate Procedure by September 18, 2017.
• Appellee may file a brief within 30 days of when appellant files her redrawn brief.
If appellant files another brief that does not comply with Texas Rule of Appellate Procedure 38.1, the Court may strike the brief, prohibit appellant from filing another, and proceed as if appellant had failed to file a brief. Tex. R. App. P. 38.9(a). Pursuant to Texas Rule of Appellate Procedure 38.8(a), where an appellant has failed to file a brief, we may dismiss the appeal for want of prosecution.
