Augustus Jerome Mayes v. Charles O'Reilly--Appeal from 52nd District Court of Coryell County

IN THE

TENTH COURT OF APPEALS

No. 10-06-00104-CV

Augustus Jerome Mayes,

Appellant

v.

Charles O'Reilly,

Appellee

From the 52nd District Court

Coryell County, Texas

Trial Court No. CAC-04-35566

DISSENTING Opinion

I am still looking for something in this proceeding, anything, that has any of the characteristics of an appellant s brief. I find nothing.

Persons who choose to represent themselves are entitled to some latitude in construing the meaning of their pleadings. Wheeler v. Green, 157 S.W.3d 439, 444 (Tex. 2005); Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978); Baughman v. Baughman, 65 S.W.3d 309, 312 (Tex. App. Waco 2001, pet. denied). They are not, however, entitled to the procedural or substantive advantage obtained by failing to adhere to the rules of procedure or the substantive law. Id. See Holt v. F.F. Enterprises, 990 S.W.2d 756, 759 (Tex. App. Amarillo 1998, pet. denied).

Background

This suit was brought by an inmate against a prison guard. The inmate asserts that he had a contract with the guard that was breached. The alleged contract was that the guard would pay the inmate $500,000 for the use of the inmate s name. The guard moved for summary judgment on the basis, supported by affidavit, that there was no such contract. The inmate did not file a response. The trial court granted summary judgment. The inmate appealed.

The Appeal

The inmate has filed nothing that resembles a brief. See Tex. R. App. P. 38.1. Other courts do not seem to have a problem in requiring compliance with the rules by pro se appellants. See e.g. In re Brooks, No. 07-07-0252-CV, 2007 Tex. App. LEXIS 5304 (Tex. App. Amarillo July 5, 2007, orig. proceeding); Herrera v. Bombardier Capital, Inc., No. 04-04-00404-CV, 2005 Tex. App. LEXIS 775 (Tex. App. San Antonio Feb. 2, 2005, no pet.) (mem. op.). But a majority of this Court has not required substantial compliance with the rules. See e.g. Crawford v. State, No. 10-06-00269-CR, 2007 Tex. App. LEXIS 3614, *2-7 (Tex. App. Waco May 9, 2007, no pet.) (Gray, C.J., dissenting); In re Long, 211 S.W.3d 481 (Tex. App. Waco 2007, order) (Gray, C.J., dissenting); Rodgers v. State, 78 S.W.3d 616, 617-618 (Tex. App. Waco 2002, order) (Gray, J., dissenting).

Future Course of Proceedings

After notice to the inmate that his appeal would be dismissed for want of prosecution unless a proper brief is filed, so that we are compliant with the rules of appellate procedure, Tex. R. App. P. 38.8(a)(1), barring something that at least looks like a brief, Tex. R. App. P. 38.1, I would dismiss the appeal.

Conclusion

Because the majority addresses the merits of issues not properly before us, I dissent.

TOM GRAY

Chief Justice

Dissenting opinion delivered and filed July 18, 2007