Michael A. Kennedy v. Anderson County, Texas and City of Palestine ( 2020 )

NO. 12-20-00100-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
MICHAEL A. KENNEDY, § APPEAL FROM THE 369TH
APPELLANT
V. § JUDICIAL DISTRICT COURT
ANDERSON COUNTY, TEXAS AND
CITY OF PALESTINE, § ANDERSON COUNTY, TEXAS
APPELLEES
MEMORANDUM OPINION
PER CURIAM
This appeal is being dismissed for failure to comply with a requirement of the appellate
rules, a court order, or a notice from the clerk requiring a response or other action within a specified
time. See TEX. R. APP. P. 42.3(c).
A party who is not excused by statute or the appellate rules from paying costs must pay--
at the time an item is presented for filing--whatever fees are required by statute or Texas Supreme
Court order. TEX. R. APP. P. 5. An appellate court may enforce Rule 5 by any order that is just.
Id. If unable to pay the requisite filing fee, an inmate must file a statement of inability to pay costs,
and a separate affidavit or declaration of previous filings that details all previous pro se actions
and contains a certified copy of the inmate’s trust account statement. See TEX. R. CIV. PRAC. &
REM. CODE ANN. §§ 14.002(a), 14.004 (West 2017). An inmate must be afforded an opportunity
to cure a filing defect before dismissal of the appeal. Brown v. Jones, 494 S.W.3d 727, 728 (Tex.
2016); Ex parte N.C., 486 S.W.3d 560 (Tex. 2016); McLean v. Livingston, 486 S.W.3d 561, 564
(Tex. 2016). After giving ten days’ notice, an appellate court may dismiss an appeal because the
appellant failed to comply with a requirement of the appellate rules, a court order, or a notice from
the clerk requiring a response or other action within a specified time. 1 TEX. R. APP. P. 42.3(c).
On April 2, 2020, the Clerk of this Court notified Appellant, Michael Kennedy, an inmate
acting pro se, that the filing fee in this appeal is due.1 Appellant was informed that failure to remit
the filing fee on or before April 13, would result in the Court’s taking appropriate action, including
dismissal of the case without further notice. See TEX. R. APP. P. 42.3(c). Also on April 2, the
Clerk of this Court notified Appellant that an affidavit of previous filings and a current, certified
copy of his inmate trust account statement, is due. Appellant was informed that failure to remit a
statement of previous filings and a current, certified copy of his inmate trust account statement
before April 13 would result in the appeal being referred to the Court for dismissal without further
notice. See id.
The April 13 deadline expired and Appellant has not paid the filing fee or filed a declaration
of inability to pay costs, a separate affidavit or declaration relating to previous filings, and a
current, certified copy of his inmate trust account statement. Because, after notice and an
opportunity to cure, Appellant has not complied with a requirement of the appellate rules, a court
order, or a notice from the clerk requiring a response or other action within a specified time, the
appeal is dismissed. See TEX. R. APP. P. 42.3(c); see also Ex parte Alvarado, No. 13-16-00514-
CV, 2016 WL 6520179, at *1 (Tex. App.—Corpus Christi Nov. 3, 2016, no pet.) (mem. op.).
Opinion delivered April 22, 2020.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
1 Pro se litigants are held to the same standards as licensed attorneys and must comply with all applicable
rules of procedure; otherwise, pro se litigants would benefit from an unfair advantage over parties represented by
counsel. Muhammed v. Plains Pipeline, L.P., No. 12-16-00189-CV, 2017 WL 2665180, at *2 n.3 (Tex. App.—Tyler
June 21, 2017, no pet.) (mem. op.).
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COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
APRIL 22, 2020
NO. 12-20-00100-CV
MICHAEL A. KENNEDY,
Appellant
V.
ANDERSON COUNTY, TEXAS AND CITY OF PALESTINE,
Appellees
Appeal from the 369th District Court
of Anderson County, Texas (Tr.Ct.No. DCCV18-592-369)
THIS CAUSE came to be heard on the appellate record; and the same being
considered, it is the opinion of this Court that this appeal should be dismissed.
It is therefore ORDERED, ADJUDGED and DECREED by this Court that this
appeal be, and the same is, hereby dismissed; and that this decision be certified to the court below
for observance.
By per curiam opinion.
Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.
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