COURT OF APPEALS FOR THE

FIRST DISTRICT OF TEXAS AT HOUSTON

ORDER AND NOTICE OF INTENT TO DISMISS FOR WANT OF PROSECUTION

Appellate case name: Rose Patricia Ann Shields, Oscar Urbina, and Arnold Shields, 

Individually, d/b/a Galveston Service Company, d/b/a Blu 

Shields Construction v. Commercial State Bank, Douglas 

Faver, Suzanne Hubbard, Daniel Jurgena, Roxanne 

Tomolialo, Joseph Cox, Thomas Walsh and Gina F. 

Dominique

Appellate case number: 01-16-00643-CV

Trial court case number: 2015-06750

Trial court: 129th District Court of Harris County

This Court’s April 18, 2017 Order, among other things, struck appellants’ brief for 

non-compliance with the page limit and briefing rules, under Rules 9.4 and 38.1, and 

ordered an amended brief to be filed within 30 days of that Order. See TEX. R. APP. P.

9.4(i)(2)(B), (4); 38.1. On May 18, 2017, appellants, Arnold “Blu” Shields, Individually, 

d/b/a Galveston Service Company, d/b/a Blu Shields Construction, Rose Patricia Ann 

Shields, and Oscar Urbina, filed an amended 86-page pro se brief.

Absent a motion to exceed the word limit, which was not filed here, the 

appellants’ initial brief is limited to 15,000 words if computer-generated, and 50 pages if 

not, and the aggregate of all briefs filed by a party must not exceed 27,000 words if 

computer-generated, and 90 pages if not. See TEX. R. APP. P. 9.4(i)(2)(B), (4). After a 

review of this brief, while the certificate of compliance states that appellants’ brief 

contains 2,622 words, it totals 87 pages because it again contains various documents from 

the record interspersed in the brief, instead of in a separate appendix or after the brief, 

making it difficult to tell where the brief’s arguments end and the record begins. See id.

9.4(h), (i)(2)(B), (3). Thus, this amended brief exceeds the total page limit.

Accordingly, the Court sua sponte STRIKES this amended brief because it does 

not comply with Texas Rules of Appellate Procedure 9.4 and 38.1. See TEX. R. APP. P. 

9.4(i)(2)(B), 38.1(a)-(k), 38.9(a). The Court ORDERS the brief redrawn to conform with 
Rule 9.4, with page numbers at the bottom, 15,000 words or less if computer-generated, 

or 50 pages or less if not, with a corrected certificate of compliance. See TEX. R. APP. P. 

9.4(i)(2)(B), (3). Specifically, the second amended brief also should comply with Rule 

38.1 by containing the following sections, in the following order or otherwise:

(1) a list of all the parties to the trial court’s judgment and addresses of all trial

 and appellate counsel;

(2) a table of contents;

(3) an index of authorities;

(4) a brief statement of the case with references to the appellate record;

(5) a statement regarding oral argument, with any request on the front 

 cover of the brief;

(6) a list of the issues presented for appeal;

(7) a statement of facts supported by record references;

(8) a summary of the argument;

(9) a clear and concise argument for the contentions made with appropriate 

 citations to legal authorities and the clerk’s record;

(10) a short conclusion clearly stating the nature of the relief sought; and

(11) an appendix, if necessary.

TEX.R. APP. P. 38.1(a)-(k).

The second amended brief must conform with Rule 38.1 by including the sections 

above and containing all necessary references to the clerk’s record filed with this Court or 

legal authorities. See TEX. R. APP. P. 38.1(a)-(k), 38.7, 38.9(a). If necessary, appellants 

may also file a separate appendix with any relevant documents, and the appendix and 

section headings above are not included in the word count for the certificate of 

compliance for the second amended brief. See id. 9.4(i)(1), (3), 38.1(k).

Thus, if appellants file a second amended brief that does not comply with Rule 

38.1, as set forth above, and with a separate appendix, the Court may strike the redrawn 

brief again, prohibit appellants from filing another brief, and proceed as if appellants had 

failed to file a brief, i.e., dismiss the appeal for want of prosecution. See TEX. R. APP. P. 

38.1, 38.8(a), 38.9(a). A compliant second amended brief must be filed within 30 days 

from the date of this order or this Court may dismiss this appeal for want of prosecution 

without further notice. See id. 42.3(b), (c).

It is so ORDERED.

Judge’s signature: /s/ Laura Carter Higley

  

Date: May 25, 2017