In the Interest of F.S.G., J.M.G., Jr., Children--Appeal from 218th Judicial District Court of Frio County

MEMORANDUM OPINION

No. 04-05-00464-CV

IN THE INTEREST OF F.S.G. and J.M.G., Jr.

From the 218th Judicial District Court, Frio County, Texas

Trial Court No. 05-05-00154-CVF

Honorable Henry G. Schuble, Judge Presiding

PER CURIAM

Sitting: Karen Angelini, Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: September 14, 2005

DISMISSED

On August 15, 2005, we issued an order noting that Appellant Jose Manuel Garcia has failed to pay the applicable filing fee in this appeal. We explained that Texas Rule of Appellate Procedure 5 provides,

A party who is not excused by statute or these rules from paying costs must pay at the time an item is presented for filing whatever fees are required by statute or Supreme Court order. The appellate court may enforce this rule by any order that is just.

Tex. R. App. P. 5. We, therefore, ordered Garcia to either (1) pay the applicable filing fee in this appeal or (2) provide written proof to this court that he is excused by statute or these rules from paying the filing fee. See Tex. R. App. P. 20.1 (providing that party who qualifies as indigent under rule 20 may proceed without advance payment of costs). We warned that if appellant failed to respond within the time provided, this appeal would be dismissed. See Tex. R. App. P. 42.3(c).

We additionally noted that appellant s brief was due on August 4, 2005, and that neither the brief nor a motion for extension of time had been filed. We, therefore, also ordered Garcia to file his appellant s brief and a written response reasonably explaining (1) his failure to timely file the brief and (2) why appellee is not significantly injured by his failure to timely file a brief. We warned that if Garcia failed to file a brief and the written response by the date ordered, we would dismiss the appeal for want of prosecution. See Tex. R. App. P. 38.8(a).

In response, Garcia has filed a Motion to Dismiss Appeal, requesting that we dismiss his appeal because the trial court has ordered a new trial on the same issues he complains about in his appeal. Garcia also requests a dismissal without prejudice to allow him to refile his appeal after the new trial. In his motion, Garcia states, I am requesting this dismissal of my case so that the trial court may hear my complaints by a new trial and I reserve the right to refile the appeal after the new trial. Although we can grant the motion to dismiss, we cannot enter an order regarding Garcia s future rights to appeal. Thus, we deny Garcia s motion to dismiss.

However, because Garcia has failed to file his appellant s brief and because Garcia has failed to pay the filing fee, we dismiss this appeal. See Tex. R. App. P. 38.8(a), 42.3(c).

PER CURIAM