Charles L. Meyer v. State Bar of Texas--Appeal from 147th District Court of Travis County

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-92-327-CV
CHARLES L. MEYER,

APPELLANT

 
vs.
STATE BAR OF TEXAS,

APPELLEE

 
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT
NO. 492,695, HONORABLE JOE B. DIBRELL, JUDGE PRESIDING

PER CURIAM

 

Appellant Charles L. Meyer appeals from an order of dismissal rendered by the district court of Travis County in his suit challenging the constitutionality of Tex. Gov't Code Ann. 81.078 (West 1988). Meyer also sought to enjoin certain disciplinary proceedings before appellee State Bar of Texas. We will dismiss the appeal because Meyer has filed neither a statement of facts nor a brief.

Meyer initially perfected a direct appeal to the supreme court. See Tex. R. App. P. 140; Meyer v. State Bar of Texas, No. 3-92-327-CV (Tex. App.--Austin Aug. 26, 1992) (order on motion to file transcript) (not designated for publication). After that court dismissed the appeal for want of jurisdiction, Meyer perfected an appeal to this Court. See Tex. R. App. P. 140(e). The record in this proceeding was due to be filed no later than July 31, 1992. Meyer, slip op. at 2; see 6 William V. Dorsaneo, Texas Litigation Guide 152.04[2] (1992).

Meyer timely filed the transcript on July 1, 1992. Tex. R. App. P. 54(a); 140(e). A motion for extension of time to file a statement of facts was due to be filed no later than August 17, 1992. Tex. R. App. P. 54(c). On September 24, 1992, Meyer filed a motion requesting this Court to abate the appeal because the transcript was incomplete. Meyer asserted that the district clerk had not included transcriptions of three trial-court hearings in the transcript. (1) This Court overruled the motion on October 14, 1992.

Meyer has apparently confused the terms "transcript" and "statement of facts." The record on appeal consists of the transcript and, when necessary, a statement of facts. Tex. R. App. P. 50(a). The transcript, prepared by the district clerk, includes pleadings and other documents filed with the clerk. The statement of facts is the transcription of the evidence and other proceedings before the trial court. See Tex. R. App. P. 53. The record before this Court does not show that Meyer timely and properly requested the court reporter to prepare a statement of facts for inclusion in the appellate-court record. Tex. R. App. P. 53(a). Accordingly, the appeal is before this Court without a statement of facts.

Because Meyer did not file a statement of facts, Tex. R. App. P. 74(k) required him to file his brief thirty days after the transcript was filed, that is, no later than July 31, 1992. To date, Meyer has filed neither a brief nor a motion for extension of time showing a reasonable explanation of a need for more time within which to file his brief. Tex. R. App. P. 74(n).

If an appellant fails to file a brief within the time prescribed, an appellate court may dismiss an appeal for want of prosecution "unless reasonable explanation is shown for such failure and that appellee has not suffered material injury thereby." Tex. R. App. P. 74(l)(1). Meyer has not made such a showing. Accordingly, we dismiss the appeal for want of prosecution. Id.; see Dickson v. Dickson, 541 S.W.2d 895, 896 (Tex. Civ. App.--Austin 1976, writ dism'd w.o.j.); see also Tex. R. App. P. 54(a) (failure to file statement of facts basis for dismissing appeal); Veale v. Rose, 688 S.W.2d 600, 601 (Tex. App.--Corpus Christi 1984, writ ref'd n.r.e.).

 

[Before Chief Justice Carroll, Justices Jones and Kidd]

Appeal Dismissed

Filed: January 20, 1993

[Do Not Publish]

1. Meyer also filed a motion for leave to file petition for writ of mandamus requesting this Court to order the trial court to forward transcriptions of hearings to this Court. We overruled this motion on December 23, 1992. See Meyer v. Flowers, No. 3-92-613-CV (Tex. App.--Austin Dec. 23, 1992) (not designated for publication).