Fourth Court of Appeals

San Antonio, Texas

February 6, 2017

No. 04-15-00362-CV

Javan P. SMITH,

Appellant

v.

DC CIVIL CONSTRUCTION, LLC,

Appellee

From the County Court At Law No. 10, Bexar County, Texas

Trial Court No. 2015-CV-01978

Honorable Martha Tanner, Judge Presiding

O R D E R

Sitting: Sandee Bryan Marion, Chief Justice

Karen Angelini, Justice 

Marialyn Barnard, Justice

Appellant, who is pro se in this appeal, filed his appellant’s brief on January 30, 2017.

The brief does not comply with the Texas Rules of Appellate Procedure because, among other 

things, it does not (1) contain a proper index of authorities, (2) provide appropriate citations to 

the clerk’s record or the reporter’s record, and (3) “contain a clear and concise argument for the 

contentions made, with appropriate citations to authorities and to the record.” See TEX. R. APP.

P. 38.1(d), (g), (i). A copy of Rule 38.1 is attached to this order.

Substantial compliance with Rule 38 is sufficient. TEX. R. APP. P. 38.9. However, if Rule 

38 has been flagrantly violated, this court may require a brief to be amended, supplemented, or 

redrawn. TEX. R. APP. P. 38.9(a). If another noncomplying brief is filed, the court may strike the 

brief, prohibit the party from filing another, and proceed as if the party had failed to file a brief. 

Id. If an appellant fails to timely file a brief, the appellate court may dismiss the appeal for want 

of prosecution. TEX. R. APP. P. 38.8(a)(1).

While it is true that pro se pleadings and briefs are to be liberally construed, a pro se

litigant is still required to comply with the law and rules of procedure. Shull v. United Parcel 

Serv., 4 S.W.3d 46, 52-53 (Tex. App.—San Antonio 1999, pet. denied). Because appellant’s 

brief does not comply with Rule 38.1, appellant is hereby ORDERED to file an amended 
brief that complies with Rule 38.1 no later than March 8, 2017. If appellant fails to timely 

file a brief that complies with Rule 38.1, this court will dismiss the appeal for want of 

prosecution. TEX. R. APP. P. 38.8(a)(1).

_________________________________

Sandee Bryan Marion, Chief Justice

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said 

court on this 6th day of February, 2017.

___________________________________

Keith E. Hottle

Clerk of Court
Rule 38.1

Appellant’s Brief

The appellant’s brief must, under appropriate headings and in the order here indicated, contain the 

following:

(a) Identity of Parties and Counsel. The brief must give a complete list of all parties to the trial 

court’s judgment or order appealed from, and the names and addresses of all trial and appellate 

counsel, except as otherwise provided in Rule 9.8.

(b) Table of Contents. The brief must have a table of contents with references to the pages of the 

brief. The table of contents must indicate the subject matter of each issue or point, or group of issues 

or points.

(c) Index of Authorities. The brief must have an index of authorities arranged alphabetically and 

indicating the pages of the brief where the authorities are cited.

(d) Statement of the Case. The brief must state concisely the nature of the case (e.g., whether it is a 

suit for damages, on a note, or involving a murder prosecution), the course of proceedings, and the 

trial court’s disposition of the case. The statement should be supported by record references, should 

seldom exceed one-half page, and should not discuss the facts.

(e) Any Statement Regarding Oral Argument. The brief may include a statement explaining why oral 

argument should or should not be permitted. Any such statement must not exceed one page and 

should address how the court’s decisional process would, or would not, be aided by oral argument. 

As required by Rule 39.7, any party requesting oral argument must note that request on the front 

cover of the party’s brief.

(f) Issues Presented. The brief must state concisely all issues or points presented for review. The 

statement of an issue or point will be treated as covering every subsidiary question that is fairly 

included.

(g) Statement of Facts. The brief must state concisely and without argument the facts pertinent to the 

issues or points presented. In a civil case, the court will accept as true the facts stated unless another 

party contradicts them. The statement must be supported by record references.

(h) Summary of the Argument. The brief must contain a succinct, clear, and accurate statement of the 

arguments made in the body of the brief. This summary must not merely repeat the issues or points 

presented for review.

(i) Argument. The brief must contain a clear and concise argument for the contentions made, with 

appropriate citations to authorities and to the record.

(j) Prayer. The brief must contain a short conclusion that clearly states the nature of the relief sought.

(k) Appendix in Civil Cases.

(1) Necessary Contents. Unless voluminous or impracticable, the appendix must 

contain a copy of:

(A) the trial court’s judgment or other appealable order from which 

relief is sought;

(B) the jury charge and verdict, if any, or the trial court’s findings of 

fact and conclusions of law, if any; and

(C) the text of any rule, regulation, ordinance, statute, constitutional 

provision, or other law (excluding case law) on which the argument is 

based, and the text of any contract or other document that is central to 

the argument.

(2) Optional Contents. The appendix may contain any other item pertinent to the 

issues or points presented for review, including copies or excerpts of relevant court 

opinions, laws, documents on which the suit was based, pleadings, excerpts from the 

reporter’s record, and similar material. Items should not be included in the appendix 

to attempt to avoid the page limits for the brief.

Tex. R. App. P. 38.1