Frank J. Holdampf v. H.E. Butt Grocery Company, Bob Robinson and Q. Garcia--Appeal from 385th District Court of Midland County

Becker v. State COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
)

FRANK J. HOLDAMPF,

)
No. 08-02-00513-CV)

Appellant,

)
Appeal from)

v.

)
385th District Court)

H.E. BUTT GROCERY COMPANY,

)
of Midland County, Texas

BOB ROBINSON, and Q. GARCIA,

)
)
(TC# CV-43,218)

Appellees.

)
MEMORANDUM OPINION

This appeal is before the court on its own motion for determination of whether it should be dismissed for want of prosecution. Finding that the clerk's record has not been filed due to the fault of the Appellant and that Appellant has failed to respond to our inquiry letter, we dismiss the appeal for want of prosecution.

Following a bankruptcy stay, this Court reinstated the appeal on February 27, 2003. See Frank J. Holdampf v. H.E. Butt Grocery Company, Bob Robinson and Q. Garcia, No. 08-02-00513-CV, 2003 WL 549966 (Tex.App.--El Paso February 27, 2003, no pet.). Pursuant to our opinion, the clerk's record was due to be filed on June 27, 2003. The Midland County District Clerk notified the Clerk's Office on June 25, 2003 that Appellant has not made financial arrangements to pay for the record. On June 30, 2003, this Court directed Appellant by letter to advise the Clerk's Office immediately what arrangements he had made or intended to make in order to have the clerk's record prepared. Further, we advised Appellant that his appeal would be dismissed unless he responded within ten days and provided a reason why the appeal should be continued. See Tex.R.App.P. 37.3. No reply has been received and the clerk's record has not been filed.

Rule 37.3(b) provides as follows:

If No Clerk's Record Filed Due to Appellant's Fault. If the trial court clerk failed to file the clerk's record because the appellant failed to pay or make arrangements to pay the clerk's fee for preparing the clerk's record, the appellate court may--on a party's motion or it's own initiative--dismiss the appeal for want of prosecution unless the appellant was entitled to proceed without payment of costs. The court must give the appellant a reasonable opportunity to cure before dismissal.

 

Tex.R.App.P. 37.3(b).

 

It is undisputed that Appellant has failed to make financial arrangements to pay for the clerk's record and the clerk's record has not been filed. Further, Appellant has not complied with our notice requiring a response. See Tex.R.App.P. 42.3(c)(authorizing appellate court to dismiss appeal where the appellant fails to comply with a notice from the clerk requiring a response or other action within a specified time). Pursuant to Rules 37.3(b) and 42.3(c), we dismiss the appeal for want of prosecution.

 

October 16, 2003

ANN CRAWFORD McCLURE, Justice

 

Before Panel No. 2

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