Robert H. Hensley v. W.M. Specialty Mortgage LLC--Appeal from County Court at Law of Ellis County

IN THE

TENTH COURT OF APPEALS

No. 10-05-00322-CV

Robert H. Hensley,

Appellant

v.

W.M. Specialty Mortgage LLC,

Appellee

From the County Court at Law

Ellis County, Texas

Trial Court No. 05-C-3562

MEMORANDUM Opinion

Robert H. Hensley filed a notice of appeal from a final judgment giving possession of property to W.M. Specialty Mortgage LLC. The required docketing statement was not received. Tex. R. App. P. 32. On September 19, 2005, we sent a letter explaining that the docketing statement must be filed and warning that the Court would dismiss the appeal if a docketing statement was not filed within 21 days. Tex. R. App. P. 42.3(c).

More than 21 days have passed, and we have not received the docketing statement. Accordingly, we dismiss this appeal. Id.; see In the Interest of T.S.S., No. 10-04-00227-CV, 2004 Tex. App. LEXIS 10126 (Tex. App. Waco Nov. 10, 2004, no pet.); Chadwell v. Ford Motor Co., No. 10-04-00272-CV, 2004 Tex. App. LEXIS 10115 (Tex. App. Waco Nov. 10, 2004, no pet.); see also In the Interest of J.M., No. 12-05-000297-CV, 2005 Tex. App. LEXIS 8640 (Tex. App. Tyler Oct. 19, 2005, no pet. h.)(publish); Morris v. Speedway Erection Serv. Co., No. 04-04-00109-CV, 2004 Tex. App. LEXIS 4008 (Tex. App. San Antonio May 5, 2004, no pet.); Fincher v. Mortgage Elec. Registration Sys., No. 05-03-00614-CV, 2003 Tex. App. LEXIS 4262 (Tex. App. Dallas May 19, 2003, no pet.)(released for publication May 19, 2003); Middleton v. State, No. 05-02-01318-CV, 2003 Tex. App. LEXIS 443 (Tex. App. Dallas Jan. 17, 2003, no pet.).

TOM GRAY

Chief Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Justice Vance concurs with a note)*

(Chief Justice Gray concurs with a separate opinion)

Appeal dismissed

Opinion delivered and filed November 16, 2005

[CV06]

* (Justice Vance concurs with a note: A docketing statement is for administrative purposes only and does not affect our jurisdiction. Tex. R. App. P. 32.4. This will be at least our third dismissal of a pro-se appeal for failure to file a docketing statement. Dismissal as a sanction is, in effect, a death penalty, which precludes consideration of the merits of the appellant s claim. Under the law developed to evaluate trial-court dismissals as sanctions, such a sanction must be just. Tansamerican Natural Gas v. Powell, 811 S.W.2d 913, 917 (Tex. 1991)(orig. proceeding). That means a direct relationship must exist between the offensive conduct and the sanction imposed. Id. Furthermore, a permissible sanction should be no more severe than required to satisfy legitimate purposes. Chrysler Corp. v. Blackmon, 841 S.W.2d 844, 849 (Tex. 1992). This means that a court must consider relatively less stringent sanctions first to determine whether lesser sanctions will fully promote compliance, deterrence, and discourage further abuse. Id. We have not tried a lesser sanction. While we may conclude that the failure to file a docketing statement reflects adversely on the merits of a pro-se appeal, we should be cautious in doing so.)