H. Davidson Smith and Marianne Campbell v. Christopher R. Johnston and Leslie Penley--Appeal from 346th District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

H. DAVIDSON SMITH and MARIANNE )

CAMPBELL, ) No. 08-02-00520-CV

)

Appellants, ) Appeal from the

)

v. ) 346th District Court

)

CHRISTOPHER R. JOHNSTON and ) of El Paso County, Texas

LESLIE PENLEY, )

) (TC# 99-2332)

Appellees. )

MEMORANDUM OPINION

Pending before the Court on its own initiative is the dismissal of this appeal for want of prosecution. Finding no Appellant=s brief has been filed, we dismiss the appeal.

Tex. R. App. P. 42.3 states:

Under the following circumstances, on any party=s motion--or on its own initiative after giving ten days= notice to all parties--the appellate court may dismiss the appeal or affirm the appealed judgment or order. Dismissal or affirmance may occur if the appeal is subject to dismissal:

(a) for want of jurisdiction;

(b) for want of prosecution; or

(c) because the appellant has failed to comply with a requirement of these rules, a court order, or a notice from the clerk requiring a response or other action within a specified time.

This Court possesses the authority to dismiss an appeal for want of prosecution when an appellant in a civil case fails to timely file its brief and gives no reasonable explanation for such failure. Tex.R.App.P. 38.8(a)(1).

On December 4, 2002, Appellants timely filed a notice of appeal in this cause. On April 24, 2003, Appellants filed a motion for extension of time to file their brief. The motion was granted, extending the time to file Appellants= brief until May 20, 2003. As of this date, no Appellants= brief nor motion for extension of time has been filed with the Court. On June 9, 2003, pursuant to Tex.R.App.P. 42.3, this Court=s clerk sent a letter to the parties indicating the Court=s intent to dismiss the case for want of prosecution absent a response from any party within ten days to show grounds for continuing the appeal. No response has been received as of this date. Accordingly, pursuant to Tex.R.App.P. 42.3(b) and (c), we dismiss the appeal for want of prosecution.

July 29, 2003

DAVID WELLINGTON CHEW, Justice

Before Panel No. 2

Barajas, C.J., McClure, and Chew, JJ.