### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-11-00299- CV

Jairus Pe gues, Appellan t

v. Texas Workforce Com m ission ; Mar y Ann Crowl ey; Lisa P aige; Chris Oakley; Com m ission er TomP apuk en; Com m ission er A ndres Alcantar; ADECCO USA, Inc.; Cicely Cade; Jennif

er A ndrews ; City of Austin E EO/Fair Housing; Jani ce Y arbrough; P GW A uto Glass, LLC; etal., Appellees

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 419 TH JUDICI AL DISTRICT NO. D-1 -GN-0 9-0 0383 4, H ONO RAB LE GISELA D. TRI ANA-DO Y AL, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

After the trial court signe d a moti o n d ismiss ing appellant J airus Pegues’s claims, Pegues filed his notice of appea l on April 28, 2011. In response to notice s by this Court related to filing f ees a nd the re cord, Pegues sent sever al letters, all of which a sserted that beca use his appea l

was filed under chapte r 212 of the labor code, he was entitled by section 212.210 to appea l without paying fee s or paying for the cler k’s and repor

ter’s recor ds. See Tex. L ab. C o d e An n . § 212.210

1 (West 2006). He also stated that he was unemploy ed, could not aff ord to pay any fee s, and was appea ling “pro se in forma pauperis .” He did not, howeve r, file an aff idavit of indige nce, either in this Court or the trial court.

Section 212.210 states, “An appea l bond is not require d in an appea l f rom a decision of a 1 trial court in an a ction under this subcha pter.” Tex. L ab. Code Ann. § 212.210 ( West 2006).On November 7, 2011, we sent Pegues a letter explaining that although section

212.210 provides that an appea l bond is not require d, that provision w as enac ted in 1993, when an ap p ea l b o nd was g ener ally require d to perf ect an appea l, and that the bond require ment has si n ce been eliminated from the rules of appellate proce dure. See Tex. R. App. P. 25, cmt. We explained 2 that in our revie w of the labor code, the administrative code, and the rules, we found no provisions that allowed a party appea ling under the Texas Unemploy ment Compensation Act to appea l without paying court fee s or for the appellate rec ord. We further explained that rule 20.1 of th e ru l es of appellate proce dure g overns when a party may appea l without paying fee s or for the rec ord, noting that Pegues had not y et filed an aff idavit of indige nce under that rule. See Tex. R. App. P. 20.1. We told Pegues that for those rea sons, we wer e overr uling what we interpre ted to be a motion for a fre e

rec ord. In a sepa

rate letter on that same date, we informed Pegues that his brief w as over due and 3 that we r equire d a re sponse no later than Dec ember

7, 2011. On November 2 1 , P egu es responde d, taking issue with our char acte rization of his filing as a m o t i o n fo r a fr ee rec ord. Instead, Pegues insisted, he had filed a petition for writ of mandamus seeking to have the court repor ter order ed to fi l e the rec ord without pay ment and a motion for defa

ult judgme nt seeking defa ult judgme nt ag ainst sever al appellee s for their al l ege d

The requireme nt for an appeal b o n d wa s repe aled in 1997. See Tex. R. App. P

. 25 cmt. 2 (“Comment on 1997 chang e: . . . In civil case s, the require ment of an appea l bond is repe aled.” ); see also former Tex. R. App. P. 40 (civil appea l perf ecte d “whe n the bond, cash deposit or aff idavit in lieu there of has been filed or made, or if aff idavit is contested, when the contest is overr uled”; when secur ity is not required, a

ppeal pe rfe cted by

written notice of

appea l). Pegues filed a “Plea for W rit of Mandamus for Transcr ipts of Hearing s,” asking that we 3 order the court repor

ter to file the repor

ter’s rec ord without pay

ment. We interpre ted this document to be a motion for a

fre e re cord on a

ppeal. 2collusion with the trial court and the court repor ter to interfe re with the consideration of his appea l. 4 He insisted that he was entitled to have the trial court’s order s vacated and to have defa ult judgme nt enter ed in his fav o r. He al s o asser ted that he was attempting to have the rec ord filed but that the court repor

ter was wrong fully ref

using to prepa

re the rec ord and that, beca use the repor

ter’s rec ord had not bee n filed, his brief c ould not be considere d overdue

. 5

On Dec ember 8, Pegues sent us his brief, and on Dec ember 9, we sent Pegues a letter informinghim that we had r ece ived his brief but ha d not filed it beca use it was not timely

and not

acc ompanied by a motion for extension of time, see Tex. R. App. P. 10.1, 10.5, a filing fee , see Tex. R. A pp. P. 5, or a cer

tificate of confe renc e, see Tex. R. App. P. 10.1( a)( 5), and beca use he had not filed t he proper n u mb er of briefs, see Tex. R. App. P

. 9.3(a)

. Pegues responded wit h a document titled, “ Motion for

Def ault J udg ment Certificate of Confe renc e,” in whic h he set out a chronology of corr espondenc e with this Court and the court repor ter, asser ted ag ain that he was entitled to appea l without pay

ment of fee s or rec ord costs, and stated that this Court had failed to take any action until he filed his motion for def ault judgme nt; the document did not include a cer tificate of confe renc e. See Tex. R. App. P. 10.1(a) (5). He also filed a motion for extension of time to file his brief, making Pegues appa

rently assumes that an appellee ’s failure t o respond to the fil ing of a motion 4 for defa ult judgme nt in an appellate court entitles him to relief

. See Tex. R. Civ. P. 239 (if defe ndant fails to answe r in trial court, plaintiff may take defa ult judgme nt ag ainst d ef

endant)

. Howeve r, contra ry to Pegues’s appar ent belief, the rules of appellate proce dure, which g overn proce eding s in this Court, do not provide for defa ult relief , and the filing of a mot ion for default j udg ment in our Court, reg ardle ss of whether the appellee has filed any thing in t h e ap p ea l , d oes not entitle an appellant to re lief. Pegues is mistaken that until a repor ter’s r ecor d is filed, an appellate court may not set a 5 dead line for an appellant’ s brief. See Tex. R. App. P

. 37.3(c) (if reporter ’s record is not filed due to appellant’ s fault, appellate court may , afte r g iving notice and rea sonable opportunity to cure , consider issues that do not require r eporte r’s re cord)

. 3asser

tions simil ar to those made in his motion for default j udg ment and aga in contending t h at t h e brief could not be considere d overdue beca use the repor

ter’s rec ord had not been filed. The motion for ex tension of t ime lacke d a ce rtificate of conf ere nce a s well, despite our specific caution in our Dec ember 9 letter that the motion for extension of time must be acc ompanied by a cer tificate of service

. See id.

On J anua ry 3, 2012, Pegues filed a “Writ of Mandamus to File Appellant J airus Pegues’ Principal Br ief for Appea l and Wit hdraw al of Motion to File Ex t en s i o n o f Time to File Appellant J airus Pegues’s Principal Br ief.” Pegues stated t h at h e h ad included with his notice of appea l an order from a fede ral court allowing him to proce ed in that court as an indige nt and ag ain 6 insisted that he was e ntitled to proce ed without pa y ment of costs or f

ees unde r the labor

code. H e also asser ted that we had no basis to demand a motion for extension of time to file his brief beca use the re porter’ s rec ord had not be en filed a nd, thus, his brief was not yet due. On J anuar

y 6, this Court sent Pegues a second letter, ag ain explaining that the labor code, specific ally section 212.210, did not mean that he was entitled to proce ed as an indige nt. We i n fo rm ed him that he had to comply with rule 20.1 of the rules of appellate proce dure and noted ag ain t hat he had not filed an aff id av i t of i ndige nce, saying, “Without an affidavit on file, y ou are require d to pa

y filing fee s at the time you file documents. Until those fee s are paid, or an aff idavit is fi l ed that fully complies with Texas Rule of Appellate Procedur e 20, your documents will be

No such document is attache d to the notice of appea l filed in this Court or to the notice of 6 appea l included in the cler k’s rec ord. Fur

ther, the fac t that a fede ral court might have allowed him to proce ed as an indige nt has no bear ing on his rig ht to appea l without pay ment of costs in this Court. See Tex. R. App. P. 20.1 cmt. (noting that rule was revised to clar ify that aff idavit of indige nce filed in trial court “is insuffic ient to establish indigenc e on appe al”)

. 4deeme d rec eived only , and not be filed.” We also reiter ated that, “re g ardle ss of t he L abor Code’s

provision, all documents must be acc ompanied by a cer tificate of confe renc e, as require d by the rules of appellate proce dure,” and explained that “[n] on-complying documents will not be filed and will

rema in pending as ‘re ceive d’ only

. The labor code’ s provisions do not exempt you from complying with the appellate rules.” We conclude d the letter by telling Pegues that the letter would be his final notice of what was require d to file documents and proce ed with his appea l, cautioning him that his failure to comply with the rules of appellate proce dure “may result in the dismiss al of your appea l.”

Pegues has responde d not by filing an aff idavit of i ndige nce or o t h erwise ensuring that his filings comply

with the rules of appellate proc edure , but by sendinga docume nt entitled a “P l ea for Writ of Mandamus to Comply with Texas L abor Code Chapter 212, Section 212.210 and Texas Rule of Appellate Procedur e 35.3 and File Documents Wit hout Costs.” Despit e our 7 explanations to the contra ry , he insists that section 212.210 allows him to proce ed without pay ment of costs and state s that “[l] aw take s prec edenc e of Rules of Procedure .” He asserts i t is ill eg al for

us to de mand appea l bonds from him or to dismi ss the appea l due to his failure to pa y such bonds. We marke d this document “re ceive d,” but have not filed it, as we explained would be the case until Pegues established his indig ence or paid a ppropriate filing f

ees. Despite our repe ated reque sts, c it a ti o n s to r u le 2 0

. 1 , explanations about the labor code and appea ls bonds, and cautions about dismiss al, Pegues has not a rra ng ed for the repor

ter’s rec ord

Rule 35.3 provides that the trial court cler k and court repor

ter are responsible for filing the 7 appellate rec ord, but only if “the party responsible for paying for the prepa ration of [t he rec ord] has paid the [clerk’s or r eporte r’s] fee , has made satisfac tory arr ang ements with the [clerk or repor ter] to pay the fee , or is entitled to appea l without paying the fee .” See Tex. R. App. P. 35.3(a) (2), (b)( 3). 5to be filed, paid his fee s, or filed an aff idavit of indige nce, nor has he taken any of the steps available to him to ensure that his brief is filed. We there fore dismiss t h e appea l both due to his failure to

arr ang e for

the prope r filingof his brief, see Tex. R. App. P

. 38.8(a) (1), and for his overall failure to comply with our notices and reque sts, see Tex. R. App. P. 42.3(b), (c) ; see also Z a mu d i o v. Zamudio , No. 08-03-00139- CV, 2003 Tex. App. L EXI S 8772, at *2-3 (Tex. App.—El Paso Oct. 9. 2003, pet. denied) (mem. op.) (dismissing appea l for want of p rosec ution when appellant did not establish indige nce, trial court had alre ady deter mined appellant had not est ab l i s h ed indige nce, repor ter’s rec ord and brief wer e not filed, and court had gi v en n o t i ce and rea sonable time to cure defic iencies) ; Zuehlke v. Zuehlke , No. 03-01-00557- CV, 2001 Tex. App. L EXI S 8065, at *1 (Tex. App.—Austin Dec

. 6, 2001, no writ) (not desig nated for publication) (dism i s sing appea l under rule 42.3 for

failure to provide re quested c ertificates of conf ere nce)

.

__________________________________________ David Puryear , J ustice Be fore J ustices Pury ear , Henson a nd Goodwin Dismissed Filed: May

25, 2012

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