CASE NO. 01 -15- 00155 -CV

IN THE COURT OF APPEALS FOR THE FIRST JUDICIAL DISTRICT HOUSTON , TEXAS

CHARLES WADE , APPELLANT VS

. HARRIS COUNTY , ET AL. , APPELLEES
On Appeal from the 295 TH Judicial District Court of Harris County, Texas , Trial Court No. 20 11

- 69056

APPELLEES’ REPLY TO APPELLANT’S RESPONSE

LINEBARGER GOGGAN BL AIR & SAMPSON, LLP 4828 Loop Central Drive, Suite 600 Houston, Texas 78701 (713) 844

- 3405 direct phone (713) 844

- 3400 main phone (713) 844

- 3 504 fax Edward J. (Nick) Nicholas State Bar No. 14991350 Nick.Nicholas@lgbs.com Anthony W. (Tony) Nims State Bar No. 15031500 Tony.Nims@lgbs.com
ATTORNEYS FOR APPELL EES ACCEPTED 01-15-00155-CV FIRST COURT OF APPEALS

HOUSTON, TEXAS 5/28/2015 10:35:32 AM CHRISTOPHER PRINE

CLERK1 APPELLEES’ REPLY TO APPELLANT’S RESPONSE

Pursuant to Rule s 5, 26, 37 and 42 .3 , T EX
. R. A PP
. P ., A ppellees filed a Motion to Dismiss asking the Court to dismiss this appeal for, inter alia , lack of jurisdiction because Appellant, Charles Wade, failed to timely file his Notice of Appeal . On May 14, 2014, the Court issue d a letter instructing Ap pellant to provide a detailed explanation showing that the Court has jurisdiction over this appeal. On May 26, 2015, Appellant filed his Response to Court Notice of 05/14/15 and/or Response to Appellee Motion to Dismiss (“Response”). Appellees now file t his Reply to Appellant’s Response.
I . SUMMARY
1. Although a court of appeals should not dismiss an appeal for form al defects or irregularities in appellate procedure in all cases, a court of appeals cannot exercise jurisdiction when: (a) the appellant f ails to file the proper “ D ocument ” timely, and/or (b) the filed D ocument does not constitute a bona fide attempt to invok e the court of appeal’s jurisdiction. In this case the Appellant failed to file a
proper D ocument timely, and he failed to file any Document invok ing this Court’s jurisdiction. Accordingly, this appeal should be dismiss ed for lack of jurisdiction

.2 II

. ARGUMENT & AUTHORITIES
A

. Ap pellant failed to file a proper Document timely
2

. Appellees contend that, to be timely, Appella nt had to file his Notice of Appea l on or before October 30, 2015, but that Appellant filed his Notice of Appeal

on February 15, 2015. ( See Motion to Dismiss, ¶ 6 , p.2 ). Appellant does not dispute this fact . (Response, ¶ 1, p. 4) . Instead, and based up on the filing of another
D ocument (which purportedly constitutes a bona fide attempt to invoke t his Court’s jurisdiction ) , Appellant asserts that this Court should exercise jurisdiction pursuant
to T EX
. R. A PP
. P . 44.3 ( formerly Rule 83) ( Id. ).
3. However, t he other bona fide D ocument must still be filed timely. Warwick Towers Council of Co

- Owners v. Park Warwick, L.P. , 244 S.W.3d 838, 839 (Tex. 2008) ( “ We have further sai d that, ‘ [i]f the appellant timely files a document in a bona fide attempt to invoke the appellate court ’ s jurisdiction , the court of appeals

... must allow the appellant an apportion to amend or refile

... ” ), citing, Grand Prairie Indep. Sch. Dist. v. S. Parts. Imp., Inc. 813 S.W.2d 499, 500 (Tex. 1991) ( p er curiam). If the other Document i s not filed timely, then the Court of Appeals does not have jurisdiction. Foster v. Williams , 74 S.W.3d 200, 204 (Tex.App.

- T exarkan a 2002, pet. denied) ( “ The docketing statement filed by the Fosters, even if considered to suffice as a notice of appeal, was not filed until approxima tely eighty days after the judgment was signed . It was thus not timely.3 When a timely notice of appeal is not filed, this Court does not have jurisdiction to consider the a ppeal on its merits .) ; Walsh v. Woundkair Concepts, Inc. , No. 02

- 14

- 00395

- CV, 2015 WL 1544004, *5 (Tex.App.

- Fort Worth, April 2, 2015, no pet. ) (mem. op. on recons ideration en banc ) ( “ Because Appellants failed to timely file any instrument in a bona fide attempt to invoke this court ’ s appellate jurisdiction

... we have no choice but to deny Appellant s ’ motion for extension of time and to dismiss this appeal for want of jurisdiction. ” ).
4

. Moreover, because t he presence or absence of jurisdiction is more than a mere procedural irregularity, Appellant ’ s reliance on former Rule 83, Sanchez v.
State , 885 S.W.2d 444, 446 (Tex.App.

- Corpus Chr isti 1994 , pet. denied) and Boulous v. State , 775 S.W.2d 8 (Tex.App.

- Houston [1 st Dist.] 1989, pet ref ’ d) is misplaced. Both of those case s were criminal cases, and both were l ater disapproved of by the Court of Criminal Appeals ’ en banc opinion in Olivo v. State , 918 S.W.2d 519, 522 ( T ex.Cri m.App. 1996): We disagree with the C o rpus Christi Court of Appeals ’ characterization of the lack of a tim ely filed motion for extension of time to file notice of appeal. It is not a mere procedu ral irregularity ; it is a jurisdictional defect. Accordingly, b ecause Appellant did not timely file his Notice of Appeal, or any other proper Document, this Court does not have jurisdiction, and the Appeal should be dismissed.4 B. Appellant failed to file any Document invoking this Court ’ s jurisdiction 5. Besides being filed timely, the o ther bona fide Document m ust also invoke the Court of Appeal ’ s jurisdiction. Plaintiff ’ s Response points to f ive documents he filed in addition to the February 15, 2015 Notice of Appeal: (1) Request for Jury Trial (Response, ¶ 1, p.2); (2) Motion for C o ntinuance and Objection and Proposed Order Granting Motion for Continuance (Response, ¶ 1, p.2); (3) Verified Petition for Temporary Injun ction (Response, ¶ 2 , p.2); (4) July 27, 2014 Notice of Appeal to the 295 th Judicial District Court from the Tax Master ’ s C ourt ( Response, ¶ 3 , p. 3 , Exhibit 4 ); and (5) Motion for New Trial and Affidavit in Support of the Motion for New Trial (Response, ¶ 4 , p. 3 )

. Howeve r, none of t hese documents s tate that Appellant wants to appeal the case to this Court

. 1 A s a result, t hey d o not invoke this Court ’ s jurisdiction

. Warwick , 244 S.W.3d at 839. ( “ [W]e have repeatedly said ‘ that the fact or which determines whether jurisdiction has been conferred

... [is] whether the instrument ‘ was filed in a bona fide attempt to invoke appellate court jurisdiction ’

. ” ). See also , Linwood v

.

1 In re Smith , 270 S.W.3d 783, 786

- 87 (Tex.App.

- Waco 2008, no pet) ( “ Here, Smith ’ s letter [was sufficient because it] plainly stated his intent to appeal and identified the style and cause number of the case. ” ).5 NCNB Tex. , 885 S.W.2d 102, 103 (Tex. 1994) (per curiam) and Grand Prairie , 813
S.W

. 3d at 500.
6

. If the other Document does not make a bona fide attempt to invoke the appellate court ’ s jurisdiction , then the appeal m ust be dismissed for want of jurisdiction

. Walsh , 2015 WL 1544004, at * 1

- 5

. ( Appeal dismissed because Appellant s ’ : (a) r equest for a copy of the reporter ’ s record, (b) motion for judgment notwithstanding the verdict, (c) motion for new trial, ( d) certificate of post

- trial

wr itten discovery, and (e), statements indicating that they will, or might have to, file an appeal, d id not constitute a bona fide attempt to invoke the appellate court ’ s jurisdiction )

. C

. Appellant must be held t o the same standard
7. Appellant also argues that t he Court should hear his appeal because he is a Pro Se litigant . (Response, ¶ 2, p. 4). However, “ [p] ro se litigants are held to the same standards as licensed attorneys , and they must therefore comply with all applicable ru les of procedure. ” Foster , 74 S.W

. 3d , at 202. S ee also , A pproximately $8,500.00 v. State , No. 01

- 09

- 00316

- CV, 2010 WL 4676986, *3 (Tex.App.

- Houston [1 st Dist.] 2010, no pet.).
III . C ONCLUSION AND PRAYER FOR RELIEF
8

. For these reasons, Appellees ask the Court to grant t heir Motion to Dismiss and to dismiss this appeal.6 Respectfully submitted,
LINEBARGER GOGGAN BL AIR & SAMPSON, LLP

B y: Edward J. (Nick) Nicholas State Bar No. 14991350 4828 Loop Central Drive, Suite 600 Houston, Texas 78701 (713) 844

- 3405 direct phone (713) 844

- 3 504 fax Nick.Nicholas@lgbs.com
ATTORNEYS FOR APPELLEES

CERTIFICATE OF SERVICE I certify that a copy of Appellee s ’ Motion to Dismiss was served by first

- class U.S. Mail , certified/return receipt requested, on Charles Ronald Wade, 4318 Woodmont, Houston, Texas 77045

.

B y: Edward J. (Nick) Nicholas