John Hess v. Donna Johnson ( 2010 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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JOHN HESS, No. 08-10-00217-CV
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Appellant, Appeal from
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v. 37th District Court
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DONNA JOHNSON, of Bexar County, Texas
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Appellee. (TC # 2006-CI-06893)
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MEMORANDUM OPINION
Pending before the Court is Appellee Donna Johnson’s motion to dismiss for want of
prosecution. We grant the motion and dismiss the appeal.
The trial court dismissed the underlying case for want of prosecution on December 8, 2009.
On January 11, 2010, Hess filed a motion for new trial which included notice of appeal. The trial
court subsequently overruled Hess’s motion for new trial. On July 1, 2010, the Fourth Court of
Appeals requested that Hess pay the appellate filing fee in the amount of $175.00 and advised him
that the appeal could be dismissed if he failed to do so. On that same date, Johnson filed her motion
to dismiss for want of prosecution in the Fourth Court of Appeals on the grounds that Hess had not
paid the filing fee and he had not taken the steps required to ensure that the clerk’s record or
reporter’s record would be filed.1 See TEX .R.APP .P. 34.6(b), 37.3(b), and 37.3(c). Hess did not pay
the filing fee or file any response to the motion to dismiss. On July 22, 2010, this Court sent a
1
This case was transferred from the Fourth Court of Appeals to the Eighth Court of Appeals pursuant to a
docket equalization order issued by the Supreme Court of Texas. See T EX .G O V ’T C O D E A N N . § 73.001 (Vernon 2005).
second request for the filing fee and warned Hess that failure to pay the filing fee could result in
dismissal of the appeal. Hess did not pay the filing fee or otherwise communicate with the Court
about the appeal. Further, Hess has done nothing to prosecute the appeal since filing his motion for
new trial and notice of appeal. Accordingly, we dismiss the appeal pursuant to Texas Rules of
Appellate Procedure 5, 42.3(b), and 42.3(c).
September 29, 2010
ANN CRAWFORD McCLURE, Justice
Before Chew, C.J., McClure, and Rivera, JJ.