Chase Carmen Hunter v. Texas Department of Insurance and David Mattax, in His Official Capacity as Commissioner of Insurance ( 2015 )

ACCEPTED
03-14-00737-CV
4701431
THIRD COURT OF APPEALS
AUSTIN, TEXAS
3/30/2015 5:44:05 PM
JEFFREY D. KYLE
CLERK
No. 03-14-00737-CV
In the Third Court of Appeals FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
Austin, Texas 3/30/2015 5:44:05 PM
__________________ JEFFREY D. KYLE
Clerk
CHASE CARMEN HUNTER
Appellant,
v.
DAVID MATTAX AND THE
TEXAS DEPARTMENT OF INSURANCE
Appellees.
______________________
On Appeal from the 250th Judicial District Court
Cause No. D-1-GN-13-001957
Travis County, Texas
_______________________________________________
APPELLEES’ BRIEF
____________________________________________________
KEN PAXTON CYNTHIA A. MORALES
Attorney General of Texas Assistant Attorney General
State Bar No. 14417420
CHARLES E. ROY
First Assistant Attorney General Financial Litigation, Tax, and
Charitable Trusts Division
JAMES E. DAVIS
Deputy Attorney General OFFICE OF THE ATTORNEY GENERAL
For Civil Litigation P.O. Box 12548
512-475-4470
ROBERT O’KEEFE 512-477-2348 (fax)
Division Chief cynthia.morales@texasattorneygeneral.gov
Financial Litigation, Tax, and
Charitable Trusts Division COUNSEL FOR APPELLEES
IDENTITY OF PARTIES AND COUNSEL
Appellant
Chase Carmen Hunter
Counsel for Appellant at Trial and on Appeal
Chase Carmen Hunter, pro se
340 S. Lemon Ave #9039
Walnut, CA 91789
Tel: 707-706-3647
Fax 703-997-5999
chase_hunter@yahoo.com
Appellees
Texas Department of Insurance
Commissioner of Insurance David Mattax
Counsel for Appellees
Cynthia A. Morales
State Bar No. 14417420
Assistant Attorney General
Financial Litigation, Tax, and
Charitable Trusts Division
P.O. Box 12548
Austin, Texas 78711-2548
Tel.: 512-475-4470
Fax: 512-477-2348
cynthia.morales@texasattorneygeneral.gov
ii
TABLE OF CONTENTS
Table of Contents ..................................................................................................... iii
Index of Authorities ................................................................................................... v
Statement of the Case.............................................................................................. vii
Statement Regarding Oral Argument ..................................................................... vii
Issues Presented ..................................................................................................... viii
Statement of Facts ...................................................................................................... 2
Summary of the Argument......................................................................................... 7
Argument.................................................................................................................... 8
I. Appellant’s attempts to seek mandamus relief should not be
entertained in this direct appeal ....................................................................... 8
II. Appellant has waived any complaints on appeal due to inadequate
briefing and no reversible error is shown ...................................................... 11
Prayer ....................................................................................................................... 17
Certificate of Compliance ........................................................................................ 18
Certificate of Service ............................................................................................... 19
Appendix
Order of Dismissal ............................................................................... A
July 12, 2013 Letter from Clerk ........................................................... B
June 24, 2014 Notice of Court Setting ................................................. C
iii
Texas Rule of Appellate Procedure 38.1 ............................................. D
Texas Rule of Civil Procedure 165a ..................................................... E
Texas Civil Practices and Remedies Code Section 13.001 .................. F
Texas Rule of Appellate Procedure 44.1 ............................................. G
iv
INDEX OF AUTHORITIES
Cases
Bowman v. Burks,
No. 01-10-000219-CV, 2011 WL 2418475
(Tex. App.—Houston [1st Dist.] ..................................................................... 9
Burton v. Hoffman,
959 S.W.2d 351 (Tex. App.—Austin 1998, no pet. ................................13, 15
Enrique v. Livingston,
400 S.W.3d 610 (Tex. App.—Austin 2013, pet. denied) .............................. 16
Hotze v. City of Houston,
339 S.W.3d 809 (Tex. App.—Austin 2011, no pet.) ..................................... 14
In re Hearn,
137 S.W.3d 681 (Tex. App.—San Antonio 2014, orig. proceeding) ............ 10
In re Kastner,
No. 14-09-00653-CV, 2009 WL 3401867
(Tex. App.—Houston [14th Dist.] 2009, orig. proceeding) ..............14, 15, 16
Mansfield State Bank v. Cohn,
573 S.W.2d 181 (Tex. 1978). ........................................................................ 12
Mayad v. Rizk,
554 S.W.2d 835
(Tex. Civ. App.—Houston [14th Dist.] 1977, writ ref’d n.r.e.) .................... 10
Pinnacle Gas Treating, Inc. v. Read,
13 S.W.3d 126 (Tex. App.—Waco 2000, no pet.) .......................................... 9
Preslar v. Garcia, No. 03-13-00449-CV, 2014 WL 824201
(Tex. App.—Austin Feb. 26, 2014, no pet.) ............................................ 16-17
Strange v. Continental Cas. Co.,
126 S.W.3d 676 (Tex. App.—Dallas 2004, pet. denied). ........................... 12
v
Statutes
TEX. CIV. PRAC. & REM. CODE §13.001....................................................................iv
TEX. CIV. PRAC. & REM. CODE §13.001(a)(1) ....................................... 14, 14-15, 16
TEX. CIV. PRAC. & REM. CODE Ch. 37 .................................................................... vii
TEX. GOV’T. CODE § 2001.038 ................................................................................ vii
Rules
TEX. R. APP. P. 4.1(a) ................................................................................................. 7
TEX. R. APP. P. 20 ...................................................................................................... 7
TEX. R. APP. P. 26.1(a)(3) ....................................................................................7, 15
TEX. R. APP. P. 38.1 ..............................................................................................iv, 9
TEX. R. APP. P. 38.1(i)......................................................................10, 11, 12, 14, 15
TEX. R. APP. P. 44.1...................................................................................................iv
TEX. R. APP. P. 44.1(a). ..........................................................................12, 14, 15, 16
TEX. R. APP. P. 52.1 ................................................................................................... 9
TEX. R. CIV. P. 145 ..................................................................................................... 7
TEX. R. CIV. P. 165 a .................................................................................................iv
TEX. R. CIV. P. 165 a(3) .................................................................................7, 11, 15
TRAVIS COUNTY CIV. DIST. CT. LOC. R. DEFINITION 2 ............................................ 10
TRAVIS COUNTY CIV. DIST. CT. LOC. R. 2.1............................................................. 10
TRAVIS COUNTY CIV. DIST. CT. LOC. R. 2. 2 ........................................................... 10
TRAVIS COUNTY CIV. DIST. CT. LOC. R. 2.4............................................................. 10
TRAVIS COUNTY CIV. DIST. CT. LOC. R. 2.6............................................................. 10
TRAVIS COUNTY LOCAL RULES CHAPTER 8 ............................................................... 5
STATEMENT OF THE CASE
Nature of the case: Petition for Declaratory Judgment suit under
Chapter 37 of the Civil Practice and Remedies
Code and Section 2001.038 of the Texas
Government Code. CR3–70.1
Course of Proceedings: Appellant sued Appellees challenging certain
rules and statutes and an order revoking
Appellant’s Texas insurance licenses. CR3–70.
No service was ever effected on any of the
defendants. The trial court signed an order
dismissing the case for want of prosecution on
August 25, 2014. CR224–32. Appellant filed a
motion for reinstatement on September 26, 2015,
which was either untimely or overruled by
operation of law. CR236–41.
Trial Court’s Disposition: The trial court dismissed Appellant’s petition for
want of prosecution. CR224–32.
STATEMENT REGARDING ORAL ARGUMENT
Appellees do not believe that oral argument is necessary in this case.
However, if the Court schedules oral argument, Appellees request the opportunity
to participate.
1
In this brief, the Clerk’s Record filed on December 15, 2014 will be referred to as CR and the
Clerk’s Record filed on February 20, 2015 will be referred to as SuppCR.
ISSUES PRESENTED (RESTATED)
1. Appellant’s attempts to seek mandamus relief should not be
entertained in this direct appeal.
2. Appellant has waived any complaints on appeal due to inadequate
briefing and no reversible error is shown.
ii
No. 03-14-00737-CV
In the Third Court of Appeals
Austin, Texas
__________________
CHASE CARMEN HUNTER
Appellant,
v.
DAVID MATTAX2 AND
TEXAS DEPARTMENT OF INSURANCE
Appellees.
______________________
On Appeal from the 250th Judicial District Court
Cause No. D-1-GN-13-001957
Travis County, Texas
_______________________________________________
APPELLEES’ BRIEF
____________________________________________________
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
Appellant appeals from an order dismissing her case for want of prosecution,
but advances no argument nor provides any authority in support of her contention
that such order should be reversed. Instead, Appellant complains of the alleged
refusal of the district clerk and a former district court judge to perform certain
2
The underlying case was originally styled Chase Carmen Hunter v. Eleanor Kitzman and the
Texas Department of Insurance. Kitzman was sued only in her official capacity. Kitzman was
succeeded by Julia Rathgeber, and Appellant amended the case style to add Rathgeber’s name,
but retained Kitzman’s name. Rathgeber has been succeeded by David Mattax, who as the
current Commissioner of Insurance is the proper appellee in this appeal along with the Texas
Department of Insurance.
1
alleged ministerial duties, and prays this Court to direct the former district court
judge to direct the district clerk to perform certain actions. This Court has
previously heard and denied such requests for relief in Appellant’s mandamus
proceeding, In re Chase Carmen Hunter, No. 03-13-00468-CV.
To the extent that Appellant is again seeking that this Court direct former
Judge Dietz (or his successor) to direct the district clerk to take certain actions,
such requests for mandamus relief should not be entertained in this direct appeal.
To the extent that Appellant is seeking a reversal of the order of dismissal,
Appellant’s contentions should be overruled due to inadequate briefing on appeal,
or alternatively, overruled because they are without merit and no reversible error is
shown.
STATEMENT OF FACTS
Appellant filed a petition for declaratory judgment against the Texas
Department of Insurance and then-Commissioner of Insurance Eleanor Kitzman on
June 7, 2013, complaining about an order entered by Commissioner Eleanor
Kitzman on May 8, 2013, which revoked Appellant’s licenses to sell insurance in
Texas. CR3–70.
Along with the petition, Appellant filed a motion to proceed in forma
pauperis. CR71–76. The affidavit indicated that Appellant had a total average
2
monthly income of $2450, including $1600 from rental property, owned real
property valued at $335,000, and had total monthly expenses of $2275. CR73–76.
A notation appears on the copy of motion in the record, which reads, “Approved
with payment plan. 6/18/13.” CR71.3
On July 11, 2013, Appellant filed a document entitled, “Verified Motion
Directly Filed with Judge John K. Dietz for Writ of Mandamus and Prohibition
Directed to the Honorable Amalia Rodriguez-Mendoza, Clerk of the District Court
of Travis County Texas.” CR83–97. In the motion, Appellant requested then-
Judge Dietz4 to enter orders compelling the district clerk to issue citation, effect
service on the Defendants, provide without charge all other services provided any
other party, and provide Appellant free access to idocket.com or a weekly fax
update of the case’s status. CR95.
On July 12, 2013, the clerk’s office sent a letter to Appellant in this case,
asking Appellant to provide a copy of the petition for each party to be attached to
the citation and the name and address of each party whom Appellant wished to
3
According to a letter from the district clerk’s office included in Appellant’s appendix to a
subsequent petition for mandamus, which appears in the clerk’s record in this case, Ms. Hunter
agreed to make $40.00 payments each month beginning on July 11, 2013, to pay for her filing
fees. CR204. Appellant asserted in the later petition that the letter was false and she never
agreed to pay the filing fee. CR189.
4
Judge Dietz retired in December 2014, and was succeeded by the Honorable Karen Crump,
who currently presides over the 250th District Court.
3
have served, enclosing an issuance request form to be filed out and returned.5
Appendix B. No response to this letter or any completed issuance request form
appears in the record. CR1–262; SuppCR1–10. In a subsequent petition for writ
of mandamus in a related case, which appears in the record of this case, Appellant
admitted receiving the letter and the issuance request form, but characterized it as
“the Clerk’s attempt to manipulate the record . . . and to cause confusion.”
CR110–11.
On July 15, 2013, Appellant filed a petition for writ of mandamus and
prohibition and petition for declaratory relief in this Court, in which Appellant
sought an order directing the district clerk to undertake the actions that Appellant
has requested Judge Dietz to order, and contending that then-Judge Dietz had not
scheduled or held any hearings on the motion and refused to act on the motion.
CR98; see In re Chase Carmen Hunter, No. 03-13-00468-CV, Third Court of
Appeals of Texas. The petition for writ of mandamus was denied. CR166–67.
Appellant filed a writ of mandamus (titled as a petition for review) on
February 21, 2014, to the Texas Supreme Court seeking that the supreme court
direct this Court to grant her requested relief which was denied in Cause No. 03-
13-00468-CVG. CR168, 177–204. That petition was denied on March 28, 2014.
5
Appellees have this day requested the district clerk to file a supplemental clerk’s record
including a copy of this letter.
4
In Re Chase Carmen Hunter, No.14-0136, Supreme Court of Texas, Notice of
Denial of Petition for Writ of Mandamus, March 28, 2014 . Appellant then filed a
petition for writ of certiorari with the U.S. Supreme Court, seeking review of the
Texas Supreme Court’s denial of her petition for writ of mandamus. CR233. The
U.S. Supreme Court denied Appellant’s motion to proceed in forma pauperis and
dismissed her petition for writ of certiorari.6 Chase Carmen Hunter v. District
Court of Travis County, No. 14-5698, Supreme Court of the United States, Order
of October 14, 2014.
No service was ever effected on the defendants in the case below. CR1–262,
SuppCR1–10. On June 24, 2014, a notice was sent by the Court that the case
would be dismissed for want of prosecution by the Court on its own motion on
August 1, 2014 at 1:45 p.m. unless a motion to retain was filed prior to that date,
referencing Travis County Local Rules Chapter 8.7 Appendix C. No motion to
retain was filed by Appellant, CR1–262, SuppCR1–10, and the case was dismissed
for want of prosecution on August 25, 2014. CR224–32.
6
Appellant also filed a federal action against the district clerk in the Western District of Texas
which was dismissed for want of prosecution because Appellant failed to pay filing fees after
being found not to be indigent. See Hunter v. Mendoza-Mendoza, et. al, No. 1-14-cv-00510-LY,
Final Judgment. Appellant has appealed the judgment to the Fifth Circuit Court of Appeals.
Hunter v. Mendoza-Mendoza, et. al, No. 14-50766.
7
Appellees have this day requested the district clerk to file a supplemental clerk’s record
including a copy of this notice.
5
On September 26, 2014, thirty-two days after the dismissal of the case,
Appellant filed a document entitled “Verified Motion to Reinstate, Verified Motion
to Direct the Clerk of the Court to Provide Services to the Plaintiff, and Verified
Motion to Transfer this Case to the Court of Appeals”.8 CR236–41. The district
clerk forwarded the motion for reinstatement to this Court as a notice of appeal and
an appeal was docketed in the Third Court of Appeals. Chase Carmen Hunter v.
Eleanor Kitzman, Julia Rathgeber, and the Texas Department of Insurance, No.
03-14-00641-CV, Notice of Appeal docketed on September 29, 2014. Appellant
subsequently filed a notice with this Court that she had not filed a notice of appeal
and the appellate number was voided. Chase Carmen Hunter v. Eleanor Kitzman,
Julia Rathgeber, and the Texas Department of Insurance, No. 03-14-00641-CV,
Letter from Court of Appeals, dated October 14, 2014.
No hearing was set on Appellant’s motion for reinstatement.9 If the motion
had been timely filed on September 24, it would have been overruled by operation
8
Appellant asserts that she mailed this motion to the trial court on September 22, 2014, under a
particular tracking number, and asserts that USPS records indicated that the motion was
delivered to the district clerk on September 24, 2014. Appellant’s Brief, p. 8. No such records or
any other proof of date of mailing appear in the record of this case. CR1–262; SuppCR1–10.
Appellant also cites to a portion of her appendix; that portion contains a copy of the motion with
a file marked date of September 26, 2014. Appellant’s brief, p. 8; Appellant’s Appendix pp.
120–125.
9
Appellant claims that she sent a letter to then-Judge Dietz on October 22, 2014, asking that he
set her motion to reinstate for a hearing, along with the motions previously complained-of in her
earlier mandamus, and she attaches a purported copy of the letter to her brief. Appellant’s
Appendix, p. 109. No such letter appears in the clerk’s record. CR1–262; SuppCR1–10.
6
of law on December 8, 2014, and notice of appeal would have been due on
Monday, November 24, 2014. See Tex. R. Civ. P. 165a(3); Tex. R. App. P. 4.1(a),
26.1(a)(3). Appellant filed a notice of appeal on December 1, 2014,10 seeking to
appeal the August 25, 2014 order of dismissal. CR243. Appellant filed a motion to
proceed in forma pauperis on appeal, which was contested by Appellees; after a
hearing ordered by this Court before a district court judge, the district court judge
sustained Appellees’ contest and found that Appellant was not indigent for
purposes of Texas Rule of Civil Procedure 145 or Texas Rule of Appellate
Procedure 20. SuppCR3–4.
SUMMARY OF THE ARGUMENT
Appellant’s requests for mandamus relief, seeking this Court to direct Judge
Dietz to “direct Judge Deitz to direct the Clerk” to take certain actions, and to
“direct the [district court] to enter an order that transfers this lawsuit to this Court
for adjudication,” as well as her requests for attorney’s fees and costs are not
properly before this Court in this direct appeal and should not be entertained.
10
On its face, the notice of appeal appears to be untimely. However, the record indicates that the
Court of Appeals received a copy of the notice of appeal sometime before it was filed in the trial
court, sending a letter out on November 24, 2014 indicating that it had received notice of the
filing of a notice of appeal in the case. Thus if the motion to reinstate was timely filed, notice of
appeal appears to have been timely filed.
7
Any attempted complaint raised by Appellant related to the Order of
Dismissal is inadequately briefed and waived on appeal. Moreover, any alleged
error would not be a basis for reversal as dismissal of Appellant’s action would not
be an improper judgment under the record in this case.
ARGUMENT
I. Appellant’s attempts to seek mandamus relief should not be
entertained in this direct appeal.
In her first two issues on appeal, Appellant complains that the District Clerk
and former Judge Dietz have failed to perform certain alleged ministerial duties
and asks this Court “to direct Judge Dietz to direct the Clerk to (a) issue citations . .
.(b) cause service of process upon the defendants . . . (c) provide [Appellant] with
all customary services provided any other party without charge, (d) provide
[Appellant] with free access to [idocket.com] . . . or send Appellant a weekly
statement by facsimile . . . [and direct the trial court] to enter an order that transfers
this lawsuit to the [Court of Appeals].” Appellant’s Brief, pp. 12–15. Appellant
also prays for reasonable attorney’s fees and costs and asks this Court to order the
trial court to transfer her lawsuit to this Court. Id. at 15. Essentially, Appellant
reurges the same complaints that she raised in her previous mandamus in Court, In
re Chase Carmen Hunter, No. 03-13-00468-CV, and seeks the same mandamus
relief.
8
Mandamuses and direct appeals are two separate types of appellate
proceedings, governed by different Rules of Appellate Procedure. Cf. Texas Rules
of Appellate Procedure 38.1, et. seq. with Rule 52.1, et. seq. This is a direct appeal
of the trial court’s order of dismissal of August 25, 2014, not a petition for writ of
mandamus. Accordingly, Appellant’s requests for mandamus relief should not be
entertained as part of this direct appeal. See Pinnacle Gas Treating, Inc. v. Read,
13 S.W.3d 126, 127 (Tex. App.—Waco 2000, no pet.) (declining to entertain a
request for mandamus relief in a direct appeal, noting that a petition for writ of
mandamus commences an original proceeding that is governed by different rules
than those governing a direct appeal); see also Bowman v. Burks, No. 01-10-
000219-CV, 2011 WL 2418475, at *2 , n.1 (Tex. App.—Houston [1st Dist.] May
26, 2011, no pet.) (holding that reviewing court could not consider an attempted
appeal as a petition for writ of mandamus).
Moreover, even if such mandamus requests could be entertained in this
direct appeal, they are without merit and should be denied. As noted in response to
Appellant’s previous mandamus petition in this case to this Court, there is no
evidence in the record that Appellant filed an actual petition for writ of mandamus
against the clerk in the trial court which was not ruled on by the district court
judge—instead, she filed a motion seeking such relief—nor is there any evidence
9
that Appellant complied with the requirements of the Travis County Local Rules to
assign her motion to Judge Dietz or set such the matter for a hearing so that it
might be ruled on. See TRAVIS COUNTY CIV. DIST. CT. LOC. R. Definition 2
(“Central Docket”). LOC. R. 2.1, 2.2, 2.4, 2.6. A party is charged with knowledge
of the local rules of the jurisdiction where its case is pending. Mayad v. Rizk, 554
S.W.2d 835, 838–39 (Tex. Civ. App.—Houston [14th Dist.] 1977, writ ref’d
n.r.e.). Further, if this were a mandamus proceeding, Appellant would be seeking
improper relief by not requesting this Court to require Judge Dietz to rule on her
motion, but instead asking this Court to “direct Judge Dietz to direct the Clerk” to
undertake certain actions. In a mandamus proceeding in which trial court has not
ruled on a motion, a reviewing court may require a court to consider and rule the
motion, but may not “tell the trial court what ruling it should make.” See In re
Hearn, 137 S.W.3d 681, 685 (Tex. App.—San Antonio 2014, orig. proceeding).
Finally, Appellant’s request for attorney’s fees and for this Court to order the trial
court to transfer her lawsuit to this Court are wholly unsupported by any argument
or authority, inadequately briefed, and without merit. Tex. R. App. P. 38.1(i).
Accordingly, appellant’s mandamus claims and requested relief are not
properly part of this appeal and should not be considered, or in the alternative,
should be denied.
10
II. Appellant has waived any complaints on appeal due to inadequate
briefing and has failed to establish any reversible error.
Although Appellant has appealed the trial court’s action in dismissing her
petition for want of prosecution, Appellant does not set out any issues, arguments,
or authorities discussing how the trial court erred in dismissing her petition. Her
sole challenge to the order of dismissal, apart from her request that it be reversed,
is a single sentence alleging that “the record proves that Hunter’s lawsuit was
stalled only because the Clerk and Judge Dietz refused to perform ministerial
duties.” Appellant’s Brief, p. 8. Appellant raises an issue complaining that the trial
court failed to hold a hearing on her motion for reinstatement as required by Texas
Rule of Civil Procedure 165a(3), Appellant’s Brief, p. 10, but presents no
arguments or authorities in support of this assertion of error, and does not request a
remand for such a hearing. Appellant further alleges that the district clerk and
Judge Dietz deprived her of her rights under the Due Process Clause of the U.S.
Constitution and her “human right[s]”, but does not support these allegations with
appropriate arguments, authorities or citations to the record. Appellant’s Brief, pp.
10–11.
All of Appellant’s attempted complaints have all been waived due to
inadequate briefing. Tex. R. App. P. 38.1(i). Additionally, to the extent that any
arguments have not been waived, no reversible error is shown as on this record as
11
it cannot be concluded that any complained-of errors probably caused the rendition
of an improper judgment or prevented Appellant from presenting her case on
appeal. Tex. R. App. P. 44.1(a).
An appellant’s brief must contain a clear and concise argument for the
contentions made, with appropriate citations to authorities and the record. Tex. R.
App. P. 38.1(i). Pro se litigants are “held to the same standards as licensed
attorneys and must comply with applicable laws and rules of procedure.” Strange
v. Continental Cas. Co., 126 S.W.3d 676, 677 (Tex. App.—Dallas 2004, pet.
denied). “An issue on appeal unsupported by argument or citation to any legal
authority presents nothing for the court to review,” and a reviewing court “cannot
speculate as to the substance of the specific issues [an] appellant claims [the court]
must address.” Id. at 678. Pro se litigants “must comply with the applicable
procedural rules, or else they would be given an unfair advantage over litigants
represented by counsel.” Mansfield State Bank v. Cohn, 573 S.W.2d 181, 185
(Tex. 1978).
A. The trial court’s order of dismissal
To the extent that Appellant is attempting to raise any issues regarding the
trial court’s dismissal of her case for want of prosecution, such issues are
inadequately briefed and should be overruled. See Tex. R. App. P. 38.1(i).
12
Appellant does not discuss the relevant standard of review or explain how the trial
court erred in light of such standard and in light of the record of this case at the
time of the dismissal, which establishes that: (1) this case was pending for fourteen
months without any service being effected or any hearings set; (2) Appellant had
not tendered any issuance request form requesting service to the district clerk nor
made any request under the local rules that any hearing be set; and (3) Appellant
failed to timely file a motion to retain the case when noticed that the case would be
dismissed for want of prosecution. CR3; CR224–32; CR1-262; SuppCR1-10.
Even if this complaint is not waived for inadequate briefing, Appellant has
not established that the trial court abused its discretion in dismissing her petition
for want of prosecution. See Burton v. Hoffman, 959 S.W.2d 351, 353 (Tex.
App.—Austin 1998, no pet.) (setting out abuse of discretion standard). Appellant
apparently attempts to argue that the clerk and the district judge are to blame for
the failure of service to be effected and the case to be prosecuted. Appellant’s
Brief, pp. 10–11. Such arguments ignore Appellant’s own procedural failures,
which themselves justify the trial court’s dismissal for want of prosecution, and are
premised on Appellant’s erroneous assertion that she is indigent; an assertion
which has been found to be false, as evidenced by the trial court’s finding of
February 19, 2015. SuppCR3–4. Moreover, in light of such finding, any error in
13
dismissing Appellant’s petition for want of prosecution would not be subject to
reversal on appeal, as the trial court could have properly dismissed her action,
either before or after service of process, under Civil Practice and Remedies Code
section 13.001(a)(1). See Tex. R. App. P. 44.1(a); Tex. Civ. Prac. & Rem. Code
§13.001(a)(1); In re Kastner, No. 14-09-00653-CV, 2009 WL 3401867, at *2 (Tex.
App.—Houston [14th Dist.] 2009, orig. proceeding) (noting that when a trial court
has sustained a contest to an affidavit of indigence, the court typically dismisses
the case under section 13.001).
B. Due process and human rights
Similarly, Appellant’s passing references to due process and human rights
violations, if meant to raise an issue on appeal, are insufficiently briefed and
should be overruled, as Appellant fails to set out how the complained-of actions
deprived her of due process, particularly in light of the record in this case, and her
two cited cases do not support any due process complaint regarding the clerk’s or
judge’s actions or inactions. See Tex. R. App. P. 38.1(i); Hotze v. City of Houston,
339 S.W.3d 809, 818–19 (Tex. App.—Austin 2011, no pet.). Furthermore, as
argued supra, any error by the district clerk or district judge is not reversible error
in this case, as Appellant’s petition is properly subject to dismissal under Tex. Civ.
Prac. & Rem. Code section 13.001(a)(1). Tex. Civ. Prac. & Rem. Code
14
§13.001(a)(1); Tex. R. App. P. 44.1(a); In re Kastner, No. 14-09-00653-CV, 2009
WL 3401867, at *2.
C. The absence of a hearing on Appellant’s motion to reinstate
Finally, Appellant’s complaint that the trial court failed to set a hearing on
her motion to reinstate is also not supported by any arguments, discussion, or
appropriate citations to the record or authorities, and so is waived for inadequate
briefing. Tex. R. App. P. 38.1(i). Even if not so waived, and assuming, without
conceding, that Appellant actually mailed her motion to reinstate on or prior to
September 24, 2014, which would render it timely,11 the trial court had no notice of
the date of mailing and therefore had no reason to believe that the file-marked date
of September 26, 2014 was not accurate, thus rendering the court without any
jurisdiction to take any action at all on the motion. See Tex. R. Civ. Proc. 165a(3).
Under such circumstances, the trial court would not have abused its discretion in
failing to hold a hearing. See Tex. R. Civ. Proc. 165a(3) (requiring that motion to
reinstate be filed within 30 days of date of dismissal); Burton, 959 S.W.2d at 354
(setting out abuse of discretion standard for trial court rulings on motions to
11
Without proof of timely mailing, it is questionable whether this Court even has jurisdiction
over this appeal. If the motion to reinstate was not timely mailed, then the trial court’s
jurisdiction expired on September 24, 2014, and the notice of appeal would have been due by
October 24, 2014. See Tex. R. Civ. Proc. 165a(3); Tex. R. App. P. 26.1(a)(3). If the motion to
reinstate was timely mailed, the notice of appeal would have been due by November 23, 2014.
Tex. R. App. P. 26.1(a)(3).
15
reinstate); but see Enrique v. Livingston, 400 S.W.3d 610, 620–22 (Tex. App.—
Austin 2013, pet. denied) (involving prisoner mailbox rule and holding that in light
of evidence in the record that inmate had timely delivered motion to jail officials
for mailing, trial court was required to hold oral hearing on motion to reinstate).
Even if the motion was timely and the trial court was aware of its
timeliness, any failure to set a hearing would be harmless, as Appellant’s only
argument in support of reinstatement was her claim that the district clerk was to
blame for Appellant’s failure to prosecute her case. CR 236–41. As noted above,
this argument is not supported by the record. Thus no reversible error is shown
because Appellant’s motion was not supported by the record and the court would
have properly overruled it, and because Appellant’s case is properly subject to
dismissal in any event under Civil Practice and Remedies Code section
13.001(a)(1). See Tex. R. App. P. 44.1(a); Tex. Civ. Prac. & Rem. Code
§13.001(a)(1); In re Kastner, No. 14-09-00653-CV, 2009 WL 3401867, at *2;
Preslar v. Garcia, No. 03-13-00449-CV, 2014 WL 824201, at *3–4 (Tex. App.—
Austin Feb. 26, 2014, no pet.) (affirming dismissal for want of prosecution where,
based on appellate record, reviewing court could not conclude that the failure to
hold a hearing on appellant’s motion to reinstate probably caused the rendition of
16
an improper verdict or prevented appellant from properly presenting her case on
appeal).
D. Conclusion
All of Appellant’s attempted issues should be overruled. Any issues that
have not been waived due to inadequate briefing are not supported by the record or
applicable law and do not demonstrate any reversible error.
PRAYER
For the reasons stated above, the Court should not entertain Appellant’s
requests for mandamus relief raised in this direct appeal, or in the alternative, deny
such requested relief, and affirm the trial court’s order of dismissal for want of
prosecution.
Respectfully submitted,
KEN PAXTON
Attorney General
CHARLES E. ROY
First Assistant Attorney General
JAMES E. DAVIS
Deputy Attorney General for Civil Litigation
ROBERT O’KEEFE
Division Chief
Financial Litigation, Tax, and
Charitable Trusts Division
17
/s/ Cynthia A. Morales
CYNTHIA A. MORALES
Attorney in Charge
State Bar No. 14417420
Financial Litigation, Tax, and
Charitable Trusts Division
P.O. Box 12548
Austin, Texas 78711-2548
512-475-4470
512-477-2348 (fax)
cynthia.morales@texasattorneygeneral.gov
ATTORNEYS FOR APPELLEES
DAVID MATTAX AND THE TEXAS DEPARTMENT
OF INSURANCE
CERTIFICATE OF COMPLIANCE
In compliance with Texas Rule of Appellate Procedure 9.4(i)(2), this brief
contains 3435 words, excluding the portions of the brief exempted by Rule
9.4(i)(1).
/s/ Cynthia A. Morales
Cynthia A. Morales
Assistant Attorney General
18
CERTIFICATE OF SERVICE
On March 30, 2015, this Appellees’ Brief was served via email and fax to:
Chase Carmen Hunter
340 S. Lemon Ave., #9039
Walnut, CA 91789
Fax 703-997-5999
chase_hunter@yahoo.com
/s/ Cynthia A. Morales
Cynthia A. Morales
Assistant Attorney General
19
APPENDIX
Order of Dismissal ............................................................................... A
July 12, 2013 Letter from Clerk ........................................................... B
June 24, 2014 Notice of Court Setting ................................................. C
Texas Rule of Appellate Procedure 38.1 ............................................. D
Texas Rule of Civil Procedure 165a ..................................................... E
Texas Civil Practices and Remedies Code Section 13.001 .................. F
Texas Rule of Appellate Procedure 44.1 ............................................. G
APPENDIX A
DC 8K14237 PG929
ORDER OF DISMTSSAL Filed in The District Gourt
FROM THE DISTRICT COURTS OF TRAVIS COUNTY, TEXÂS of Travis Coun$, Texas
FA ,lUG 25 zolrt
x J:)V ,/.n.
Amrlla Rodriguez'Menddta, Clellt
D-l -AG- l3-000622 IN RE WASHINGTON
D-l -AG- 13-000625 OAG VS LAMB
D-r -AG-13-000822 IN RE CASTILLO
D- r -AG- l3-000872 IN RE ALLEN
D-l-AG-13-001056 IN RE CASTANEDA
D-l-AG-13-001 160 IN RE GIBSON
D-1-FM-13-000567 IN RE LUEDKE
D- I -FM- 1 3-000576 IMM BAGGETT
D-l-FM-13-000579 IMM JARVIS
D-l-FM-13-000603 IMM SENEVONGSA
D- r -FM- r 3-000627 IMM VELASQUEZ
D-t-FM-13-000641 IMM MENDEZ
D-1-FM-13-000675 IMM ANDERSON
D-l-FM-13-000679 IMM PICKENS
D-l -FM- l3-000692 IN RE LIU
D-t-FM-13-000694 IMM BREAZEALE
D-l -FM-13-000701 IMM MATA
D-l -FM- 13-000738 IMM SIMS
D-l -FM-13-000751 IMM RASBERRY
D-l-FM-13-000767 IMMALVAREZ
D- l -FM- I 3-000774 IMM WEHNER
D-r-FM-13-000799 IMM ALEGRIA
D- I -FM- l3-000806 IMM LANKRI
D-l-FM-13-000816 IMMNELSON
D-l -FM-13-000819 IMM BROWN
D-r -FM-13-000828 IMM LOZANO
D-l -FM-13-000843 IMM CARCIA
D-l -FM-13-000858 IMM SEINERA
D-l -FM-13-000902 IMM BOzuON
D- 1-FM- l3-000909 IN RE GUAJARDO
D-t -FM-13-000912 IMM WEDGEWORTH
D- I -FM- l3-000945 IMM PEREZ
D-l-FM-r3-000947 IMM QUAY
D-1-FM-13-0009s6 IMM POWELL-KEPLAR
D-l-FM-13-000961 IN RE C}IAN
D-l-FM-13-000962 IN RE RODRIGUEZ
D-l -FM- l3-000985 IN RE SOBIN
D-1-FM-13-001003 IN RE GALVAN
D-l -FM- l3-001009 IMM ELIZONDO
D-l-FM-13-00101r IN RE MILLER
D-l-FM-13-00r024 IMM RUIZ
D-l -FM-13-001029 IMM MCDONALD
D-l -FM-13-001032 ITIO MURPHEY
D-t -FM-r3-001033 IMM MANZANO
D-l-FM- r 3-00r034 IMM SHUMAN
D-r-FM-t3-001050 IMM ST JO}IN
D-r -FM-13-001052 IMM LOPEZ
D-l-FM-13-001057 IMM ALFRED
D-l-FM-13-001103 IMM VARELA
D-l-FM-13-001 105 IMM HRUBY
D-l-FM-13-001I l6 IMM MERIWETHER
D-t-FM-13-001123 MELTON
D-t -FM- r 3-001 128 IN RE O'BRIEN
D-r-FM-r3-001159 IN RE BLANCO BUSTAMANTE
D-l-FM-13-001 163 IN RE OCHOA
D-l-FM-13-001167 IMM DELGAD@4
DC 8K14237 PG930
ORDER OF DISMISSAL
FROM THE DISTRICT COURTS OF TRAVIS COUNTY, TEXAS
D-r -FM-13-001 168 IMM MATIAS
D-r-FM-r3-001173 IMM MOORE
D-l-FM-13-001178 IMM CANFIELD
D-l-FM-13-001r9l IN RE BELL
D-l-FM-13-001 198 INRENGUYEN
D-l-FM-13-001210 IMM MOJICA
D-1-FM-13-001218 IMM BUCIO
D-l-FM-r 3-001219 IMM YANEZ
D-l-FM-13-001239 IMM PEREZ
D-l-FM-13-001272 IMMLOVINGS
D-l-FM-13-001282 IMM ALMANZA
D-l-FM-13-001299 IMM YBARRA
D-l-FM-13-001324 INREARANA
D-t-FM-13-001330 IN RE RIVERA
D- l-FM- l3-001337 IN RE MINOR CHILD
D- l-FM-13-001338 IMM HARRIS
D-1-FM- t3-00r3s0 IMM MALDONADO
D-l-FM-r3-001379 IN RE MITCHELL
D-l-FM-13-001381 IMM GOMEZ
D-l-FM-13-00r387 IMM WHITMAN
D-l-FM-13-001398 IMM MCCRANIE
D-l-FM-13-001406 IMM SHOEMAKER
D-1-FM-13-001417 IMM FISHER
D-l-FM-r3-001421 IMM LAVRAR
D-l-FM-13-001432 IMM LEE
D-l-FM-13-001436 IMM TUMAzuNSON
D-l-FM-13-001443 CANTU
D-l-FM-13-001455 IN RE PADRON PONCE
D-l-FM-13-001466 IMM BARNES
D-l-FM-13-001467 IMM CASTO
D- t-FM- l3-00r468 IMM HERNANDEZ
D-l-FM-13-001481 IMM TAYE
D-l -FM- 13-001488 TN RE NOONSAB
D-l-FM-13-001492 IN RE A CHILD
D-r-FM-r3-001495 IN RE MALDONADO HERNANDEZ
D-l-FM-13-001502 IMM PRAVIA
D-l-FM-13-001503 IN RE ROBERSON
D-l-FM-13-001522 IMM DOLO
D-l-FM-13-001523 IMM RIVERA
D-l-FM-13-001538 IMM CLEM
D-l-FM-13-001543 IMM VANDERWILT
D- t-FM-13-001553 IMM MOREHOUSE
D-l-FM-13-001s60 IN RE WALLACE
D-l-FM-13-001569 IMM KRYZANOWSKI
D-l-FM-13-001s72 IMM ESPINOZA
D-t,FM-r3-001s87 IN RE WILLIAMS
D-l-FM-13-001589 IMM MURILLO
D-r-FM-13-001596 ITIO TURNER
D-l-FM-13-001617 IMM RIVERA
D-l-FM-13-001623 IMM IZUOM
D-l-FM- 13-001630 IMM WILLIAMS
D,l -FM-13-001638 IN RE FLORES
D-l-FM-r 3-001647 IMM POFF
D-r-FM-13-001670 IMM DELRIO
D-l-FM-13-001675 IMM JARAMILLO
D-r -FM-13-001687 IIMALDANA
D-r-FM-13-001706 IMM ROSS 22s
8K14237 PG93'1
ORDER OF DISMISSAL
FROM THE DISTRICT COURTS OF TRAVIS COUNTY, TEXÄS
D-t-FM-13-001709 IMM PROZZI
D-l-FM-13-001710 IMM ARZATE
D-l-FM-13-001726 IMM TENOzuO
D-l -FM-13-001734 IMM LYNCH
D-1-FM-13-001737 IMM MANNING
D-1-FM-13-001745 IN RE CHILDREN
D-l-FM- r3-001763 IMM VELA
D-1-FM,l3-001774 IMM CASTRO
D-l-FM-13-001786 IMM PHAN
D-l-FM-13-001790 IN RE GRAVES
D-1-FM-13-00r804 IN RE FROMBERG
D-l-FM-13-001815 IMM GREENBERG
D-l-FM-13-001825 IMM ACEVEDO
D-l-FM-13-001837 IMM RAMIREZ
D-1-FM-13-001867 IN RE KELLY
D-l-FM-13-001885 IMM FLORES
D-l -FM-13-001922 IMMZ
D-l-FM-r3-001927 IMM RAMOS
D-l-FM-13-001928 IMM CAVANAUGH
D-l-FM-13-001929 IMM BERRY
D-1-FM-13-001932 IN RE GRUBBS
D-l-FM-13-001944 IMM ALAMILLA
D-l-FM-13-001946 IMM VALDES
D-l-FM-13-001947 IMM REEVES CAVALIERO
D-t-FM-13-001978 IN RE A CHILD
D-l-FM-13-002007 IMM GONZALEZ RODRIGUEZ
D-t-FM-13-002041 IMM ANDRE
D-t -FM- l3-002053 IMM ISRAEL
D-1-FM-13-002067 IMM MACIAS
D-l-FM-13-002084 IMM ROBINSON
D-l-FM-13-002095 IN RE MEJIA.ZAYALA
D- l-FM- l3-002100 IMM JONES
D-t-FM-13-002109 IMM PALACIOS
D-l-FM-13-002145 IMM ALDAYA
D-l-FM-13-002172 IMM DAVILA
D-l-FM-13-002185 IN RE GOMEZ-MARTINEZ
D-l-FM- l3-002189 IMM GARCIA
D-l-FM-13-002207 IMM HI.INTER
D-l-FM-13-002214 IMM NIX
D- l -FM- l3-002230 IMM GONZALEZ
D-l -FM- l3-002265 IMM CAWTHON
D-l-FM-13-002272 IMM PRICE
D-l-FM-r3-002281 IMM AGRAWAL
D-l -FM-13-002306 IMM ELLIS
D-l-FM-13-002324 IMM SUAREZ.LOPEZ
D- 1-FM-13-002357 IMM RIOS
D-r-FM-13-002358 IMM RODEWALD
D-1-FM- t 3-002364 IMM LAM
D-r -FM- 13-002373 IMM BOGHICI
D-r-FM-13-002376 IMM FINNEY
D-1-FM-13-002385 IMM CAZARES OLIVO
D- 1-FM- t 3-002403 INREG
D-1-FM-13-002429 IN RE KRAUS
D-1-FM-13-002436 IMM DIAMOND
D-l-FM-13-002445 IMM DE LA CRUZ VEGA
D-l-FM-13-002447 IN RE CENTENO HERNANDEZ
D-l-FM- 13-002448 IMM KEEFER zzo
DC 8K14237 PG932
ORDER OF DISMISSAL
FROM THE DISTRICT COURTS OF TRAVIS COUNTY, TEXAS
D-l-FM-13-002456 IMMNORTHINGTON
D-r-FM-13-002468 IMM ANDERSON
D-r-FM-13-002469 IMM NAVARRO
D-l-FM-13-002470 IN RE MENDEZ
D-r-FM-13-002474 IMM OWENS
D-1-FM-13-002489 IMM GARCIA
D-t -FM- l3-002502 IMM DRABENT
D-t-FM-13-002514 IMM HOFF
D-1-FM-13-002522 IMM GARCIA
D-r-FM-13-002523 IN RE VAN WINKLE
D-l-FM,t3-002524 IMM MURPHY
D-l-FM-13-002549 IMMHUBBARD
D-l-FM-13-002563 IMM MILES
D-l-FM-r3-002564 IMM GALARZA
D-r-FM-13-002569 IMM EDWARDS
D-l-FM-13-002570 IN RENEWTON
D-l -FM- 13-002580 IMM LOERA-DIAZ
D-1-FM-r3-002602 IMM ARGUETA
D-l-FM-13-002618 IMM SHRUM
D-l-FM-13-002620 IN RE CORRAL
D-l-FM-13-002634 IMM ROBINSON
D-l-FM-13-002651 IMM BROWN
D-l-FM-13-002652 IMM HERNANDEZ
D-l -FM-13-002709 ITIO NELUFAR DIANNA RADPOUR
D-l-FM-13-002734 IMM HAMJE
D- r -FM-t3-002744 IMM GAGE
D-l-FM-13-002762 IMM DWARKA
D-l-FM-13-002764 IN RE STEVEN
D-l-FM-13-002790 IMMARZOLA
D- 1-FM-r 3-002798 IMM MCDONALD
D-l -FM- l3-002800 IMM GARZA
D- t-FM-13-002810 IMM MILLER
D-1-FM-13-002817 IMM LEAL
D- I -FM- t 3-002832 IMM DEPAZ
D-l -FM-13-002834 IMM HARDING
D-l-FM-13-002843 IMM PRESLEY
D-r-FM-13-002849 IMMMILLER
D- I -FM-13-002857 IN RE SERNA
D- I -FM- 13-002859 IMM GAUNA
D-l-FM-13-002868 IMM JAIMES
D-l -FM- 13-002883 IMM CARTER
D-l-FM-13-002910 IN RE ZAMORA
D- I -FM- l3-002926 IMM RODRIGUEZ
D- I -FM- 13-002933 IMM WACNOR
D-l-FM-13-002946 IMM ACITELLI
D-l-FM-13-002956 IMM ESPARZA
D-1-FM-13-002977 IMM ALEMAN
D-1-FM- 13-002978 IMM CHAVEZ
D- I -FM- l3-002980 IN RE CRUZ
D-l -FM-13-002982 IMM URQUIA
D-l -FM- 13-002983 IN RE NGUYEN
D-l -FM- l3-002985 IMMALLEN
D-1-FM- l3-003005 IN RE THOMPSON
D-l-FM-13-003026 IMM MONROE
D-l -FM- 13-003053 IN RE HORTON
D-l -FM- l3-003058 IN RE A CHILD
D-r -FM-13-003064 IMM MALANGAÍ,ILA
DC 8K14237 PG933
ORDER OF DISMISSAL
FROM THE DISTRICT COURTS OF TR,AVIS COUNTY, TEXAS
D-l -FM-13-003066 IMM CURTIS
D-1-FM-13-003084 IMM CONWELL
D- l-FM- l3-003087 IMM MORALES
D-1-FM-13-0031 l7 IMM RENZ
D-l-FM-13-003128 IMM QUIROGA
D-l-FM-13-003 r36 IMM KING
D-l-FM-13-003140 IN RE ALVARADO
D-1-FM-13-003143 IMM LEAL
D-l -FM-13-003161 IN RE RODRIGUEZ
D-l-FM- 13-003163 IN RE BOUTIN
D-l-FM-r3-003175 IMM BUENO-CHAVEZ
D-l-FM-13-003177 IMM CUNNINGHAM
D-1-FM-13-003179 IN RE A CHILD
D-r-FM-13-003185 IMM KOONCE
D-l-FM-13-003197 IMM DIAZ
D- l -FM-13-003203 IMM GAI.INA
D- l -FM-13-003223 IMM BUSH
D-l-FM-13-003264 IN RE JUAREZ
D-l-FM-13-003274 IMM NUNEZ
D-l-FM-13-003299 IMM CARTER
D-l-FM-13-003312 IMM MATA
D-l-FM-13-003313 IN RE JOHNSON
D-l-FM-13-003314 IMM LANG
D-l -FM-r3-003335 IMM PETERSON
D-r -FM-13-003338 IMM TANNER
D-l -FM- 13-003348 IMM ARELLANO
D-l -FM-13-003363 IN RE RIVERA
D-1-FM-13-003375 IMM CHAMBERS
D- l -FM-13-003383 IMM AHMADI
D-l-FM-13-003410 IN RE A CHILD
D-r-FM-13-00341 I IMM MARTINEZ
D- t-FM- r 3-003421 IMM HERRERA
D- l -FM-13-003437 IN RE FREEMAN
D- l-FM-13-003438 IN RE A CHILD
D- I -FM-13-003470 IMM ARTEAGA
D-l -FM-13-003472 IMM ALONZO
D- l -FM-13-003483 IMM CROSS
D-r -FM- r 3-003484 IMM RIVERA
D-l -FM-13-003497 IMM CASTRO JOSE
D-l -FM-13-003500 IMM MURPHY
D-l-FM-r3-003501 IMM MCKINNEY
D- I -FM-13-003531 IMM JACKSON
D-r-FM-13-003535 ITIO ALEXANDER AQUILE MEJIA
D-1-FM-13-003569 IMM BILLINS
D-l-FM-13-003584 IMMARREDONDO
D-l-FM-13-003588 IMM ESCOBAR
D-l -FM- l3-003605 IMM VILLALBA
D-t-FM-13-003617 IN RE APOLINAR
D-1-FM-13-003632 INRE AN
D-l -FM- 13-003634 IN RE UNBORN CHILD
D-l-FM-13-003654 IMM HALE
D-l -GN- 13-000378 TARGET NATIONAL BANK VS HINOJO
D- l -GN- l3-000387 ¡rrôlA VS CHARLTON
D-t -GN-13-000399 WARREN B BAKER VS SOUTH CROSS
D-l -GN-13-000426 BROOKFIELD V SHEPHERD
D-l-GN-13-000435 BROOKFIELD OWNERS VS OROZCO
D-l -GN-13-000439 BROOKFIELD d6SO VS WALTER BROW
8K14237 PG934
ORDER OF DISMISSAL
FROM THE DISTRICT COURTS OF TRAVIS COUNTY, TEXAS
D-l-GN-13-000446 BROOKFIELD V HUERTA
D-l-GN-13-0004s3 BROOKFIELD OWNERS VS CARILLO
D-1-cN-13-000454 BROOKFIELD OWNERS VS RODRIGUEZ
D-l-GN-13-000472 IN RE: ROBERT WAYNE FAULK
D- r -GN- 13-000485 E JIM MAR VS DELL INC
D-t-GN-13-000492 TARGET NATIONAL BANK V LEWIS
D-l-GN-13-000494 LONI GIRDLER VS ST DAVIDS
D-l-cN-13-000495 TARGET NATIONAL V POSTON
D- l -GN- l3-000509 LEROY SIMMONS JRVS TEXAS HEAL
D-l-cN-13-000514 ZACHARY BALL VS JASON T MARTIN
D-l-GN-13-000516 PROGRESSIVE COUNTY VS STALIK
D-l-GN-13-000520 FRANK HILL VS JOHN BUTLER
D-l-GN-13,000522 MARIA MANZANARES VS HUSKEY
D-l-GN-13-000524 BARBERVS STEEL CITY INC
D-l-GN-13-000526 EMERSON V THALER
D-l-GN-13-000528 HARTMAN VS CLAWSON
D-l-GN-13-000529 NAVISTAR FINANCIAL V CORNELL
D-l-GN-13-000s49 AMERICAN EXPRESS VS HETRICK
D-l -GN-13-000565 TINKERV BARTON
D-t-GN-13-000575 ROSS QUADE VS JOSEPH GRINGERI
D-1-GN-13-000576 DARELL FABING VS CUTTING EDGE
D- I -GN- 13-000585 ROBERT FINLEY VS C MILAM
D-l-GN- l3-000590 WILLARD VS LEHMAN
D-l-GN-13-000620 CARSON V TULLIS
D-l-cN-13-000644 VILLAGES VS. DITUCCI
D-1-GN- I 3-000647 EX PARTE: JAVIER HERNANDEZ
D-l -GN- 13-000650 VOLUSION INC VS JUSTIN MANNING
D-l-GN-13-000663 AMERICAN EXPRESS V AMERICAN PR
D-l-GN-13-000684 PARKWAY GARDEN V TZADI
D-1-GN-13-000697 AUSTIN ENGINEERING V LAZY NINE
D-r-GN-13-000699 DONALD HULL VS STATE OF TEXAS
D-t-GN-13-000701 KEN ODEN VS GUTHRIE LUMBER
D- l -GN- l3-000703 MEDSTAR FUNDING V KEMCO
D-l-GN-13-000714 GLOBALSTARV THOMAS
D-l-GN-13-000722 HOMEV/ARD RSIDENTIAL VS WRIGHT
D-l -GN- 13-000730 GREEN TREE SERVICING VS HADNOT
D-l -GN-13-000732 FRANCE OUELLET VS AMICA MUTUAL
D-l-GN-13-000754 LOS JARDINES VS. VIRUEGAS
D-t -GN-13-000780 THERIOT VS. COMANCHE CANYON
D-1-GN-13-000801 BIERWIRTH VS. TIB
D-t-GN- 13-000803 IN RE A PURPORTED LIEN OR CLAI
D-r-GN-13-000804 IN RE A PURPORTED LIEN OR CLAI
D-l-GN-13-000812 FRIARV CARTER
D-l -GN- 13-000822 TAYLOR V TEXAS WINDSTORM
D-l -GN- l3-000841 PEAK ACCEPTANCE VS GRAMERCY
D-l-GN-13-000846 BRISENO V CHASAN
D-l-GN- l3-000851 MEDSTAR FLTNDING VS MARQUEZ
D- I -GN- l3-0008s2 THE HARTFORD VS GUEVARA
D-r-GN-13-000860 CATALYSTS LLC VS URIBES
D-1-GN- 13-000865 KATENELL LLC VS MARTINEZ
D-1-GN- 13-000868 SSBD INC VS AUSTIN DOORMAN LLC
D-l -GN- 13,000883 BORDONARO VS GIGAPHOTON
D,l -GN- 13-000884 CAIRNS VS HOPKINS
D- l -GN- l3-000893 SHAWN CARDEN VS ARM INSIGHT IN
D-r -GN- r 3-000894 NATIONSTAR V WILLIAMS
D-t-GN-13-000900 HICKMAN V VEGA
D-l-GN-r3-000917 TINNIN V PALM.ER
DC 8K14237 PG935
ORDER OF DISMISSAL
FROM THE DISTRICT COURTS OF TRAVIS COUNTY, TEXAS
D-l-GN-13-000919 BRANT VS PECKHAM
D-1-GN-13-000924 IN RE PETITION OF MASHERY INC
D-1-GN-r3-000929 VIDAL MARTINEZ VS PROGRESSIVE
D-l-GN-r3-000937 AMERICAN EXPRESS V GETZ
D-l-GN-13-000942 MIGUEL GARCIA VS SOUTHERN INS
D- I -GN- t 3-000950 FUNEZ V KELLAS
D-l -GN- 13-000957 IN INTEREST OF SOPHIA GERRY
D-l-GN-13-000971 CORRY MORROV/ BAND V RD & COMPA
D-l-cN-13-000972 MARLOW V NASH
D-l-GN-13-000981 GE CAPITAL VS SUE FOSTER
D-1-GN,l3-000997 METRO UTILITY VS ALBA ET AL
D-l-GN-13-001002 DENMAN VS DOE, ET AL
D-l-GN-13-001010 ruDD VS SECRETARY, ET AL
D-l-GN-13-001021 TX DEPT OF LICENSING V CANTU
D-1-GN-13-001063 MEDSTAR FUNDING VS ROBLEDO
D-l-GN-13-001072 REEDER V ST DAVIDS MEDICAL
D-r -cN-13-001077 WELLS FARGO V HILL
D-l-GN-13-001080 DISCOVER BANK VS JOSEPH B GRES
D-r-GN-13-001093 GE CAPITAL RETAIL VS F BRO}VN
D-l-GN-13-001098 EX PARTE VICTOR FOREST DAVIDSO
D-t-GN-13-001099 RICHARDO CRUZ AEDO VS HOMEWISE
D-l-GN-13-001 100 CAVAZOS V HOMEWISE PREFERRED
D-r-GN-13-001101 DELGADO V TEXAS PROPERTY AND C
D-l-GN-13-001102 ROBLEDO VS HOMEWISE PREFERRED
D-l-GN-13-00r 107 PROGRESSIVE COUNTY V NIETO-ROS
D-l-cN-r3-001108 BEACON VS SWAIM
D-l-GN-13-001126 HARPERV CITY OF AUSTIN
D-l-GN-13-001 166 IN RE TEXAS APARTMENT SOLUTION
D-1-GN-13-001204 SUNCOAST VS DAVID AERNETHY
D-l-GN-13-001217 TOM JONES HOMES VS CITY AUSTIN
D-l-GN-13-001218 WELLS FARGO VS SCOTT
D-l-GN-13-001221 IN THE MATTER OF WILLIS
D-l-GN-13-001223 GAGNON VS ALVIN J COON JR DDS
D-l-GN-13-001242 DEEDS V HARBORFREIGHT TOOLS
D-l-GN-13-001247 MALIBU LLC VS RUSSELL HOLT
D-l-GN-13-001264 CAMILLE SMITH VS ST. DAVIDS
D-1-GN-13-001269 MEDSTAR FUNDING V GRAY II
D-l -GN- 13-001271 AMARO V SATTER"/HITE
D-1-GN-13-001274 AMEzuCAN EXPRESS VS GIBSON
D-l-GN-13-001298 AMEREXPRESS VS CROSS
D-1-GN-13-001303 MEDSTAR FUNDING V AAA TEXAS
D-l-GN-13-001305 RICHIE AND GUERINGER VS BIOTAB
D-r -GN-13-001309 JPMORGAN CFIASE V DINKINS
D-l-GN-13-001312 JPMORGAN CHASE BANK VS RUIZ
D-l-GN-13-001321 IN RE: ROBERT D. KIZER
D-t-GN-13-001392 PRODEL VS CITY OF ROLLINGWOOD
D-l-GN-13-001429 HOLT V. NOBU MALIBU LLC
D-l-GN,13-001430 BLUE CROSS VS POMONA VALLEY
D-l-GN-13-001432 WALKER VS GALLARDO
D-l-GN-13-00146ó NATIONSTAR VS OJEDA ET AL
D-1-GN-13-001469 PNC BANK VS GLORIA PINALES
D-l -cN-13-001478 AMERICAN EXPRESS V BOYD
D-l-GN-13-001481 WILLIAMS V WLLIAMS
D-l-GN-13-001485 ROGERS V. T.H.H.S.C.
D-l-GN-r3-001494 MEDSTAR FUNDING V SALAS
D-1-GN-13-001497 DEUTSCHE BANK V SLADE
D-l-GN- l3-001s02 AMERICAN EXRß.ESS VS LLOYD
DC 8K14237 PG936
ORDER OF DISMISSAL
FROM THE DISTRJCT COURTS OF TRAVIS COUNTY, TEXAS
D-1-GN-13-001504 CROSS CHECK INC VS WOODS
D-l-GN-13-001508 AMERICAN V CSF PROPERTIES
D-l -GN-13-001539 CALDERONE VS ADVANCED BUSINESS
D-t-GN-13-001543 GTFCU VS ELLIS AND HOLDITCH IN
D-l -GN-13-001545 BUSINESS WINGS V MACH ONE
D-1-GN-13-001552 FLORES V. TEXAS MEDICAL BOARD
D-l-GN-13-001570 DELLFINANCIAL V SYSTEM SUPPORT
D-l -GN-13-001572 DANBURG VS FARMERS INSURANCE
D-l-GN-13-001584 AMERICAN EXPRESS V SMITH
D-l -GN-13-001588 HELIOVOLT CORP V TECPORT OPTIC
D-1-GN-13-001596 TEXAS WINDSTORM V GREG ABBOTT
D-1-GN-13-00161 I HIPP VS CATARINA ET AL
D-1-GN-13-00r626 FLORES V TEXAS MEDICAL BOARD
D-t-GN-13-001635 DAVIS V LAKE AUSTIN RIVER BOAT
D-1-GN-13-00r638 DODGE V CHARALAMBIDES
D-t,GN-13-001658 MENTOR WORLDWIDE V SIENTRA INC
D-1-GN-13-00r662 GOVERNMENT V. SEUCEDO
D-t-GN- l3-001677 AAA TEXAS V AGUILAR
D-t-GN-13-001681 WIEGAN VS DISCOVER BANK
D-1-GN-13-00r682 WIEGAND VS HSBC BANK
D-t-GN-13-001686 GARCIA V. SETON HEALTHCARE
D-t-GN-13-001689 WALKER ET AL VS WESTBROOK ET A
D-1-GN-13-001690 SHADOWGLEN VS SHACKLES
D-1-cN-13-001695 ARCE V TAVIRA
D-1-GN-13-001707 PAUL V MELVIN VS BATTAGLIA
D-1-GN-13-001709 HARTFORD FIRE VS BOSHEARS
D-l-GN-13-001716 SMITH V. ALLSTATE INSURANCE
D-l-GN-13-001717 AMERICAN EXPRESS V RUSHEFSKY
D-l-GN-13-00t721 SCHMTNK VS. TX DEPT LICENSING
D-l-GN-13-00r 733 BUTLERVS BUTLER
D-l-GN-13-001745 VALERIE TITUS VS GANRER SERV
D-1-GN- l3-001755 NATIONSTARV. PzuESTLEY
D-r -GN-13-001778 ALE)fi{ANDRA GARCIA VS SCHARFF
D-I-GN-r3-00r803 IN RE GUARDIANSHIP OF MARY OLI
D-l-GN-13-001819 HUDSON VS SPECTRA PHYSICS
D-1-GN-13-001831 AMERICAN EXPRESS VS TRUDEAU
D-r-cN-13-001834 AMERICAN EXPRESS VS CAGI
D-l-GN- l3-001874 GzuSEBAUM V. PINNELLI
D-l-GN-13-001878 PARAGON FUND VS GREAT LAKES
D-1-GN-r 3-001886 GOVERNMENT EMPLOYEE V THOMPSON
D-1-GN-13-001887 GOVERNMENT EMPLOYEE V MARTINEZ
D-1-GN-13-001889 PROGRESSIVE V GUTIRREZ
D-l -GN-13-001891 PROGRESSIVE V UGARTE
D-t-GN-13-001892 SIXTH RIVER V. PADRON
D-l -GN-13-001905 ARRIAZA.RUIZ VS HERNANDEZ
D-1-GN-13-001917 ULMAN VS GARCIA
D-t-GN-r3-00r929 V/ELLS FARGO BANK V DELGADO
D-l-GN-13-001931 TRAMPUSH VS HLINTINGTON BEER
D-1-GN-r3-001934 OLD REPUBLIC V XINYI GLASS
D-l-GN-13-001944 GEORGE V STATE OF TEXAS
D-l-GN-13,001953 IN THE MATTER OF KIRK V. FIRST
D-l-GN-13-001957 HUNTER VS COMMISSIONER OF INSU
D-l-GN-13-001962 MADISON VS CASA W LLC
D-l-GN-13-00r980 ALDRIDGE V. RAINEY
D-l-GN-t3-001986 BOOTH VS WEATHERTON
D-r-GN-13-002009 DELL MARKETING VS THE OCKERS
D-l-GN-13-002010 SERRING VS DÀIRAN, ETAL
DC 8K14237 PG937
ORDER OF DISMISSAL
FROM THE DISTRICT COURTS OFTRAVIS COUNTY, TEXAS
D- l -cN-13-002036 WELLS FARGO BANK V COMPASS BAN
D- l-GN-13-002037 MITCHELL VS PENN
D-l-GN-13-002041 GOVERNMENT EMPLOYEES V TOBIAS
D- I -GN-13-002059 COOKE VS CHARTER OAK
D-l-GN-13-002073 JNJ 5905 ESA VS GARY KUHNEL
D- t-GN- I 3-002074 PROGRESSIVE VS ADELE SHORT
D-t-GN-t3-002075 BEAR STEARNS V EMC MORTGAGE
D-l-GN-13-002096 IN RE: JORDAN BERRY
D-l-GN-13-002107 DISCOVER BANK V HARRISON
D-l-GN-r3-0021 l7 CEMEX VS MAZOUREK
D-l-GN-13-002118 CEMEX CONSTRUCTION VS MAZOUREK
D-l-GN-13-002122 CONSTRUCT CPTL V. RECONSTRUCT
D-l-GN-13-002 r33 AUSTTN CEDAR& REDWOOD V. WC 6
D-l-GN-13-002138 DISTRIBUTOR V MULWANI LLC
D-l-GN-13-002140 APPLIED VS LAMINACK
D-l-GN-13-002142 PARVIN V. DE LA CRUZ
D-l-GN-13-002148 IN RE R,A,LPH A. NOELKE SPECIAL
D-l-GN-13-002154 HARRIS BRANCH RES V GILBERT
D-l-GN-13-002161 HARRIS BRANCH RES V ESQUIVEL
D-l-GN-13-002162 NATIONSTAR VS KISHA R WILLIAMS
D-l-GN-13-002165 IN RE:CAPITOL APPRAISAL GROUP
D-l-GN-13-002166 HARRIS BRANCH RES V LANGLOIS
D-1-GN-13-002181 SB BISHOP'S SERVICE V STEPAN
D-r -GV-13-000098 ECTOR COUNTY VS PMS, ET AL
D- l -GV- 13-000265 STATE OF TEXAS V \Ã/ENDY THOMAS
D-l-GV-t3-000341 BRUCE ELFANT VS RI.JN TEXAS
D- t-GV- l3-000398 STATE OF TEXAS VS DINA UzuBE
On the I st day of August, 201 4, the matter of dismissal for want of
prosecution crime on for consideration by the Court in the above-styled and numbered
causes; and it appearing to the Court that these causes ofaction have been pending in the
District Courts of Travis county, Texas, for a period of time in excess of the standards set
forth in Rule 6 of the Texas Rules of Judicial Administration and the Local Rules of Civil
Procedure for the Travis County District Courts; that the notice of the Court's intention to
dismiss these causes for want of prosecution was sent to all parties and attomeys of
record whose addresses are in the files ofthe District Clerk ofTravis County, Texas; and
that said causes should be dismissed for want ofprosecution.
It is therefore ORDERED ADJUDGED and DECREED that the above-styted
and numbered causes be, and are hereby DISMISSED for want ofprosecution.
Signed this 25th day ofAugust, 2014
Judge Presiding
2]2
APPENDIX B
Amalia Rod riguez-Mendoza
D¡strict Clerk, Travis County
Travis County Courthouse Complex
P. O. Box 679003
Austin, Texas 78767
July 12, 201 3
Chase Carmen l-lunter
P. O. Box 9075
Fredericksburg, VA 22403
Re: Cause No. D-1-GN-13-001957; Chase Carmen Hunter v. Eleanor Kitztnan, lu Her
Official Capacity as Commissioner of lnsurance, et al; In the 250th iudicial District Court, Travis
County, Texas
Dear Ms. I{unter
We have received and lìled your Original Petition. ln order to assist you to the extent we legally
may, please submit the lbllowing:
/
/ ol'the petition for each party that will be attached to the citation
./"opi.,
{ nurn"aud address information f'or each pal:ty you wislt to have served with citation
(iss uance req uest form provided)
Ad min istrative Off ices Civil and Family Division Criminal Division Jury Office
(512) 854-e737 (512) 854-9457 (512) 854-9420 (512)8544295
Fax:. 8544744 Fax:854-6610 Fax: 854-4566 Fax: 8544457
ISSUE REQUEST FORM
Cause # Style vs
ISSUE TO Registered Agent (if applicable)
Service Address:
Street/P.O. Box City, State Zip Code
Plnnse spEctFy oNE oF THE FoLLowtNc FoR THE coMpLETED ISSUANCE pApERS:
Forward to Constable: Hold for pick-up by
Mail to
Name Address
ISSUE TO Registered Agent (if applicable)
Service Address
Street/P.O. Box City, State Zip Code
Pr.rrrsr' spccrFy oNE oF TUE FoLLowtNG FoR TItE coMpLETED tssuANcE pA,pERs:
Forward to Constable Hold for pick-up by
Mailto:
Name Address
ISSUE TO: Registered Agent (if applicable):
Seruice Address:
StreelP.O. Box City, State Zip Code
PIensB SPECIFY oNE oF TTIE FoLLowING FoR THE COMPLETED ISSUANCE PAPERS:
Forward to Constable Hold for pick-up by
Mail to
Name Address
ISSUE TO Registered Agent (if applicable)
Service Address
Street/P.O. Box City, State Zip Code
PIT¡Tse SPECIFY oNE oF THE FoLLowING FOR.THE COMPLDTED ISSUANCE PAPERS:
Forward to Constable: Hold fbr pick-up by
Mail to
Name Address
APPENDIX C
I
I -€e!--
NIOTICE OF COURT SETTII\G
IN THE DISTRiCT COURTS OF TRAVIS COUNTY, TEXAS
FOR CAUSE NO. D_1-GN-13-001957
HUNTER CHASE CARMEN
VS.
KITZMA]T{ ELEANOR
T}IE ABOVE CAUSE WILL BE DISMISSED FOR WAN'I U¡' PROSECUTIOiÍ Oi'[ TiiE
COURT'S MoTIoN ON THE 1sT day Of AUgUST, 2OI4 AT LZ45 PM IN SAID
COURT, UNLESS A MOTION TO RETATN IS FILED PRIOR TO TT1AT DATE. æ
PLEASE READ TTIE TRAV]S COTII{TY LOCAL RULES CHAPTER B -- PROCEDURES FOR
T
DISMISSAL FOR WANT OF PROSBCUTION D
o
N
AMALTA RODRTGUEZ *MENÐOZA
0_
LLJ ç
=
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È DTSTRICT CLERK a
TRÃV]S CCUNTY, TE)LAS -{
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DATED: 6/24/20:-4
APPENDIX D
38.1. Appellant’s Brief, TX R APP Rule 38.1
Vernon’s Texas Rules Annotated
Texas Rules of Appellate Procedure
Section Two. Appeals from Trial Court Judgments and Orders (Refs & Annos)
Rule 38. Requisites of Briefs (Refs & Annos)
TX Rules App.Proc., Rule 38.1
38.1. Appellant’s Brief
Currentness
The appellant’s brief must, under appropriate headings and in the order here indicated, contain the following:
(a) Identity of Parties and Counsel. The brief must give a complete list of all parties to the trial court’s judgment or order
appealed from, and the names and addresses of all trial and appellate counsel, except as otherwise provided in Rule 9.8.
(b) Table of Contents. The brief must have a table of contents with references to the pages of the brief. The table of contents
must indicate the subject matter of each issue or point, or group of issues or points.
(c) Index of Authorities. The brief must have an index of authorities arranged alphabetically and indicating the pages of the
brief where the authorities are cited.
(d) Statement of the Case. The brief must state concisely the nature of the case (e.g., whether it is a suit for damages, on a
note, or involving a murder prosecution), the course of proceedings, and the trial court’s disposition of the case. The
statement should be supported by record references, should seldom exceed one-half page, and should not discuss the facts.
(e) Any Statement Regarding Oral Argument. The brief may include a statement explaining why oral argument should or
should not be permitted. Any such statement must not exceed one page and should address how the court’s decisional process
would, or would not, be aided by oral argument. As required by Rule 39.7, any party requesting oral argument must note that
request on the front cover of the party’s brief.
(f) Issues Presented. The brief must state concisely all issues or points presented for review. The statement of an issue or
point will be treated as covering every subsidiary question that is fairly included.
(g) Statement of Facts. The brief must state concisely and without argument the facts pertinent to the issues or points
presented. In a civil case, the court will accept as true the facts stated unless another party contradicts them. The statement
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
38.1. Appellant’s Brief, TX R APP Rule 38.1
must be supported by record references.
(h) Summary of the Argument. The brief must contain a succinct, clear, and accurate statement of the arguments made in the
body of the brief. This summary must not merely repeat the issues or points presented for review.
(i) Argument. The brief must contain a clear and concise argument for the contentions made, with appropriate citations to
authorities and to the record.
(j) Prayer. The brief must contain a short conclusion that clearly states the nature of the relief sought.
(k) Appendix in Civil Cases.
(1) Necessary Contents. Unless voluminous or impracticable, the appendix must contain a copy of:
(A) the trial court’s judgment or other appealable order from which relief is sought;
(B) the jury charge and verdict, if any, or the trial court’s findings of fact and conclusions of law, if any; and
(C) the text of any rule, regulation, ordinance, statute, constitutional provision, or other law (excluding case law) on
which the argument is based, and the text of any contract or other document that is central to the argument.
(2) Optional Contents. The appendix may contain any other item pertinent to the issues or points presented for review,
including copies or excerpts of relevant court opinions, laws, documents on which the suit was based, pleadings, excerpts
from the reporter’s record, and similar material. Items should not be included in the appendix to attempt to avoid the page
limits for the brief.
Credits
Eff. Sept. 1, 1997. Amended by Supreme Court March 10, 2008, and Aug. 20, 2008, eff. Sept. 1, 2008. Approved by Court of
Criminal Appeals Sept. 30, 2008, eff. Sept. 30, 2008.
Notes of Decisions (906)
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2
38.1. Appellant’s Brief, TX R APP Rule 38.1
Rules App. Proc., Rule 38.1, TX R APP Rule 38.1
Current with amendments received through August 15, 2014
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3
APPENDIX E
Rule 165a. Dismissal for Want of Prosecution, TX R RCP Rule 165a
Vernon’s Texas Rules Annotated
Texas Rules of Civil Procedure
Part II. Rules of Practice in District and County Courts
Section 7. Abatement and Discontinuance of Suit
TX Rules of Civil Procedure, Rule 165a
Rule 165a. Dismissal for Want of Prosecution
Currentness
1. Failure to Appear. A case may be dismissed for want of prosecution on failure of any party seeking affirmative relief to
appear for any hearing or trial of which the party had notice. Notice of the court’s intention to dismiss and the date and place
of the dismissal hearing shall be sent by the clerk to each attorney of record, and to each party not represented by an attorney
and whose address is shown on the docket or in the papers on file, by posting same in the United States Postal Service. At the
dismissal hearing, the court shall dismiss for want of prosecution unless there is good cause for the case to be maintained on
the docket. If the court determines to maintain the case on the docket, it shall render a pretrial order assigning a trial date for
the case and setting deadlines for the joining of new parties, all discovery, filing of all pleadings, the making of a response or
supplemental responses to discovery and other pretrial matters. The case may be continued thereafter only for valid and
compelling reasons specifically determined by court order. Notice of the signing of the order of dismissal shall be given as
provided in Rule 306a. Failure to mail notices as required by this rule shall not affect any of the periods mentioned in Rule
306a except as provided in that rule.
2. Non-Compliance With Time Standards. Any case not disposed of within time standards promulgated by the Supreme
Court under its Administrative Rules may be placed on a dismissal docket.
3. Reinstatement. A motion to reinstate shall set forth the grounds therefor and be verified by the movant or his attorney. It
shall be filed with the clerk within 30 days after the order of dismissal is signed or within the period provided by Rule 306a. A
copy of the motion to reinstate shall be served on each attorney of record and each party not represented by an attorney whose
address is shown on the docket or in the papers on file. The clerk shall deliver a copy of the motion to the judge, who shall set
a hearing on the motion as soon as practicable. The court shall notify all parties or their attorneys of record of the date, time
and place of the hearing.
The court shall reinstate the case upon finding after a hearing that the failure of the party or his attorney was not intentional or
the result of conscious indifference but was due to an accident or mistake or that the failure has been otherwise reasonably
explained.
In the event for any reason a motion for reinstatement is not decided by signed written order within seventy-five days after the
judgment is signed, or, within such other time as may be allowed by Rule 306a, the motion shall be deemed overruled by
operation of law. If a motion to reinstate is timely filed by any party, the trial court, regardless of whether an appeal has been
perfected, has plenary power to reinstate the case until 30 days after all such timely filed motions are overruled, either by a
written and signed order or by operation of law, whichever occurs first.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
Rule 165a. Dismissal for Want of Prosecution, TX R RCP Rule 165a
4. Cumulative Remedies. This dismissal and reinstatement procedure shall be cumulative of the rules and laws governing any
other procedures available to the parties in such cases. The same reinstatement procedures and timetable are applicable to all
dismissals for want of prosecution including cases which are dismissed pursuant to the court’s inherent power, whether or not
a motion to dismiss has been filed.
Credits
Oct. 3, 1972, eff. Feb. 1, 1973. Amended by order of July 22, 1975, eff. Jan. 1, 1976; Dec. 5, 1983; July 15, 1987, eff. Jan. 1,
1988.
Notes of Decisions (701)
Vernon’s Ann. Texas Rules Civ. Proc., Rule 165a, TX R RCP Rule 165a
Current with amendments received through August 15, 2014
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2
APPENDIX F
§ 13.001. Dismissal of Action, TX CIV PRAC & REM § 13.001
Vernon’s Texas Statutes and Codes Annotated
Civil Practice and Remedies Code (Refs & Annos)
Title 2. Trial, Judgment, and Appeal
Subtitle A. General Provisions
Chapter 13. Affidavit of Inability to Pay Costs
V.T.C.A., Civil Practice & Remedies Code § 13.001
§ 13.001. Dismissal of Action
Currentness
(a) A court in which an affidavit of inability to pay under Rule 145, Texas Rules of Civil Procedure, has been filed may dismiss
the action on a finding that:
(1) the allegation of poverty in the affidavit is false; or
(2) the action is frivolous or malicious.
(b) In determining whether an action is frivolous or malicious, the court may consider whether:
(1) the action’s realistic chance of ultimate success is slight;
(2) the claim has no arguable basis in law or in fact; or
(3) it is clear that the party cannot prove a set of facts in support of the claim.
(c) An action may be dismissed under Subsection (a) as frivolous or malicious either before or after service of process.
Credits
Added by Acts 1987, 70th Leg., ch. 976, § 1, eff. June 19, 1987.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
§ 13.001. Dismissal of Action, TX CIV PRAC & REM § 13.001
Notes of Decisions (113)
V. T. C. A., Civil Practice & Remedies Code § 13.001, TX CIV PRAC & REM § 13.001
Current through the end of the 2013 Third Called Session of the 83rd Legislature
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2
APPENDIX G
44.1. Reversible Error in Civil Cases, TX R APP Rule 44.1
Vernon's Texas Rules Annotated
Texas Rules of Appellate Procedure
Section Two. Appeals from Trial Court Judgments and Orders (Refs & Annos)
Rule 44. Reversible Error (Refs & Annos)
TX Rules App.Proc., Rule 44.1
44.1. Reversible Error in Civil Cases
Currentness
(a) Standard for Reversible Error. No judgment may be reversed on appeal on the ground that the trial court made an error of
law unless the court of appeals concludes that the error complained of:
(1) probably caused the rendition of an improper judgment; or
(2) probably prevented the appellant from properly presenting the case to the court of appeals.
(b) Error Affecting Only Part of Case. If the error affects part of, but not all, the matter in controversy and that part is separable
without unfairness to the parties, the judgment must be reversed and a new trial ordered only as to the part affected by the error.
The court may not order a separate trial solely on unliquidated damages if liability is contested.
Credits
Eff. Sept. 1, 1997.
Notes of Decisions (855)
Rules App. Proc., Rule 44.1, TX R APP Rule 44.1
Current with amendments received through August 15, 2014
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1