Appealing Pro Se in Texas

Appealing without a lawyer in Texas – Not so appealing, but …

Defendants who end up with judgments in debt collection cases rarely have the means to retain an appellate attorney to attack the judgment. Lack of money is generally the reason they found themselves in court in the first instance. If a lawyer to handle an appeal is a luxury debt suit defendants can ill afford, they can still go it alone, but there are many pitfalls when pursuing an appeal without legal representation as a pro se litigant. Pro se means "for oneself" or on behalf of oneself.


An appeal to the court of appeals starts with the filing of a Notice of Appeal with the trial court clerk, who will forward the case information to the higher court. For info on Texas appellate courts, to go Use drop-down menu under the "Courts" to visit specific courts' website.

Notice of Appeal Template (Texas) (regular appeal)
Notice of Appeal Template (regular appeal)
Once an appeal is docketed, it may not be too late to review the appellate rules and practice aids, and to attempt to draft a brief conforming with the appellate rules—ironically known by their acronym as TRAPs--but it may be too late to fix errors and omissions that occurred in the trial court.

Appellate courts will generally issue a warning letter or a procedural order to put an appellant on notice of defects and deadlines prior to dismissing an appeal for want of prosecution or failure to follow the rules. Many common defects can be cured. Others errors and omissions, however, cannot be fixed, and some are fatal to the appeal altogether because they are considered jurisdictional.

So what are the major problems?

The remainder of this blog post will discuss the most serious and most common errors. First the most serious one: Missing the deadline to pursue an appeal. 30 days is the general rule, but there are many exceptions and necessary caveats.

Deadlines: Failure to file the notice of appeal on time may result in dismissal for want to jurisdiction (DWOJ)

To invoke the jurisdiction of a Texas court of appeals, a notice of appeal must generally be filed within 30 days of the date the judgment was signed.

Case dismissed - NOA was late 
If a notice of appeal is filed late and no exception applies, the appeal will be dismissed for lack of jurisdiction. (Note that different rules apply to appeals from JP courts to county courts, a topic not addressed here. A shorter deadline also applies to interlocutory appeals and certain other accelerated appeals, as distinguished from regular appeals from final judgments). See Tex. R. App. P. 26.1 (stating that a notice of appeal must be filed within thirty days after the judgment is signed or within ninety days if a motion for new trial or to modify the judgment is filed)

A 15-day grace period is available, but it requires a reasonable explanation for the delay in the court of appeals, which is often granted, but not always.
Rule 26.1 provides that the notice of appeal be filed within 30 days after the judgment is signed. TEX. R. APP. P. 26.1. The time for filing a notice of appeal is extended to 90 days after the judgment is signed if any party timely files a post-judgment motion that extends the appellate timetable. Id.; see Gene Duke Builders, Inc. v. Abilene Hous. Auth., 138 S.W.3d 907, 908 (Tex. 2004). 

After 45 days have elapsed, it will be too late to appeal unless a timely filing was made in the trial court that extends the appellate deadline to 90 days after the judgment.

That can be a post-judgment motion (such as a motion for a new trial). A post-judgment motion, however, must also be filed within 30 days of the date of the judgment, and there is no similar grace period in the trial court. See Tex. R. Civ. P. 329b(a) (stating that a motion for new trial must be filed before or within thirty days after the judgment or order complained of is signed).

A request for findings of facts and conclusions of law can also have the effect of extending the appellate deadline, but will do so only when the judgment to be appealed was entered after a bench trial. It does not apply to summary judgment and it probably will not work in the case of default judgments when no oral hearing took place. The general rule is that a request for findings of facts and conclusions of law is only appropriate when there was an evidentiary hearing or trial on contested issues. When that was not the case, a request for findings will likely not extend to appellate deadline. Hearings on a motion for summary judgment are not evidentiary.

Additionally, in order to have a request for findings of facts extend the post-judgment deadlines, such a request must be filed within 20 days of the judgment, rather than 30. Even many attorneys fail to file such a request on time, which will generally make the appeal more difficult and less likely to succeed. And there is another wrinkle: When the trial court judge does not filed findings on time, the party that requested them must file a reminder (notice of past-due findings of facts) in order to preserve the complaint for appeal. If he does not do so, it will in effect be considered the appellant’s error, rather than the judge’s failure to perform an official duty. That’s one of many ways to run into a “waiver” problem.
Tex. R. Civ. P. 329b(a) (stating that a motion for new trial must be filed before or within thirty days after the judgment or order complained of is signed). The same is true concerning the thirty-day or ninety-day period in which one must perfect a direct appeal. See Tex. R. App. P. 26.1 (stating that a notice of appeal must be filed within thirty days after the judgment is signed or within ninety days if a motion for new trial or to modify the judgment is filed) 
There are two other exceptions to the 30-day deadline to appeal a judgment in favor of a Creditor.

One is a restricted appeal, which may be pursued from a default judgment within 6 months from the judgment and under certain other types of circumstances, such entry of a summary judgment when the defendant did not have proper notice of it. Another exception may apply when the defendant did not receive timely notice of the judgment.

Both exceptions involve more complex paperwork than the simple one-page notice of appeal required to commence a regular appeal from a final judgment. A restricted appeal requires a different notice of appeal and a motion for an extension of post-judgment deadlines based on belated notice that judgment was entered requires an evidentiary hearing in the trial court to establish the relevant late-notice facts in addition to a proper motion.

For pro se litigants, there is generally no good reason to delay an appeal except to delay the time to pay the appellate filing fee and the charges for the clerk’s record on appeal (C.R.). If a post-judgment motion is filed to extend post-judgment deadlines, the deadline for the timely filing of a notice of appeal is 90 days after the judgment (not the date of the motion) but it can be filed at any time prior to that date.

When an appeal has been initiated but a post-judgment motion was also filed and is still pending in the trial court below, the appellant’s brief will be due in the court of appeals later than it would otherwise be, but it is less likely that the payment deadline for appellate fees will also be extended. As noted, nonpayment will trigger a warning letter and dismissal if payment is not made after the warning is issued.

The later briefing deadline will give the defendant more time to draft a pro-se appellate brief, seek pro bono counsel, or save up money to retain an attorney to handle the appeal. Even if no post-judgment motion remains to be resolved, an appellant may request an extension, but must file a proper motion. These types of motions are routinely granted for at least 30 days. Additional extension may be requested, but may not be granted, or only for a lesser amount of additional time than what was requested.

Failure to pay required fees: Appellate Filing Fee, Clerk's Record, and Reporter's Record 

Many appeals are dismissed for failure to pay a required fee. This happens even in cases where appellants had a lawyer in the trial court who filed a notice of appeal. Failure to pay the fee will result in dismissal without a need for the lawyer to file a motion to withdraw as attorney. Some attorneys take advantage of this.

One required fee is the appellate filing fee (currently $205.00). The other one is the fee for preparation of the clerk’s record (C.R.), which varies with its size, measured in pages regardless of whether there were paper filings or only electronic ones in the court below. Except for rare exceptions, all paper records to be forwarded to the appellate court to support the appeal will be converted to electronic ones and assembled into a single paginated pdf file with an index and pdf bookmarks. Pro se litigants will have to request it from the clerk of the relevant court of appeals. Attorneys can download the appellate record directly through a dedicated web portal.

Regardless, the fee is charged based on the page count ($1.00 per page). For simple appeals in collection cases, the clerk’s record will typically consist of fewer than 100 pages. In some credit card collection cases, however, the creditor attaches many monthly statements (sometimes hundreds of pages) to its affidavit, which will drive up the cost of the appellate record accordingly.

The Clerk's Record consists of documents in the trial court's file. The Reporter's Record is the court reporter's transcript of what happened in court at trial or at a hearing.

A failure to pay for the Reporter’s Record (in cases in which one was taken) will not kill the pending appeal and will not result in dismissal for want of prosecution, but will likely doom the appeal on the merits if the reporter’s record is needed. Whether a reporter’s record (RR) is needed will depends on the nature of the order or judgment appealed from. An appeal from a summary judgment will generally not require a reporter’s record (because no evidence can be taken at the hearing, if there was one), and most default judgments do not require a reporter’s record either because they are granted based on submission, with no appearance of a live witness.

Motions for summary judgment (MSJ) are often decided upon “submission” or “hearing by submission”, which means that no one appears in court for to speak to the judge. Instead of a NOTICE OF HEARING or NOTICE OF ORAL HEARING, there will have been a NOTICE OF SUBMISSION stating a date and time at which the motion is to be submitted to the judge. This date controls the deadline for any response to the motion for summary judgment (8 days prior). Even if there is an oral hearing on such a motion, it will only be for argument, not for the taking of evidence, all of which must be on file already to be considered for purposes of summary judgment.

When appealing from a summary judgment, the appellant has to make sure the motion and all exhibits to the motion, and the response (if any) are included in the clerk's record. They should be specifically requested in a Designation of Items to be Included in the Appellate Record. If not specifically requested, all summary-judgment related documents may not be included as a matter of routine.

APPEAL WITHOUT PAYMENT OF COSTS. Litigants who cannot afford to pay the appellate filing fee and the cost of the record may want to look into filing as indigents. Proceeding “in forma pauperis”, however, requires disclosure of details of the would-be appellant’s financial circumstances, and those disclosures may very well become available as public records and viewable online, depending on the practices of particular courts and their clerks.

Failure to request findings of facts and conclusions of law after a bench trial

A Request for Findings of Facts and Conclusions of Law should be filed when the judgment to be appealed resulted from a bench trial (as opposed to a summary judgment).

Findings of Facts are not needed for an appeal from a summary judgment even if an oral hearing took place. This is because summary judgments are granted or denied solely based on summary judgment evidence, which is filed with the court prior to the hearing, and because the movant's evidence must be so convincing that no questions of fact are left open. The evidence submitted in support of the motion must "conclusively" establish the creditor's claim. No testimony can be taken at the hearing on a motion for summary judgment and submission of additional documentary evidence would require express permission from the judge if it was not previously filed in a timely manner.

The purpose of request for findings of facts after a bench trial is to obtain detailed reasons in writing why the judge ruled the way he or she did. The findings will often be drafted by the party in whose favor the judgment was rendered. Many judges ask both parties to submit proposed findings of facts and conclusions of law (some even require that they be submitted before trial) and many judges simply sign the proposed findings of the party that prevailed. Sometimes judges revise proposed findings and/or cross out portions thereof. They do so either by hand, or by electronically editing proposed orders submitted through the Texas eFile system in pdf.

Findings of facts allow for the appeal from a bench-trial judgment to be more focused. If no findings are filed, the appellant must instead rely on the reporter’s record exclusively to support a complaint about trial court error. Without formal findings, the court of appeals will generally have more leeway to uphold the trial court’s judgment. This is even true when the creditor loses and appeals a take-nothing judgment enter in the defendant’s favor.

Failure to make sure a reporter’s record is taken at a bench trial

To be in a position to appeal a judgment entered after a bench trial (trial by judge without a jury), it is important for the Defendant to make sure that a reporter’s record is taken of the proceedings. If there is no reporter’s record, the court of appeals will have no basis to evaluate what happened at trial and whether any error was made that requires the judgment to be reversed. In the absence of a reporter’s record, the adverse judgment will almost certainly be affirmed.

Note however that this does not apply to a default judgment entered at an oral hearing or a trial at which the Defendant was not present. In that scenario, the Defendant is not held responsible for the absence of a reporter’s record because he or she was not in court and therefore in no position to request that one be taken. The absence of the Defendant may or may not be the Defendant’s fault, but that is a different issue.  In this situation, the Creditor’s attorney will instead be responsible for making sure that the court reporter records the default judgment proceeding.

Nonexistence of a reporter’s record from a default judgment hearing provides a basis for the judgment to be reversed on appeal, and for the case to be remanded to the trial court for a new trial. But the defendant, as appellant, must nevertheless make sure that the court of appeals knows that no record was taken. The appellant should therefore submit a request for the reporter’s record, along with the request for the clerk’s record, and have the court reporter inform the court of appeals that none exists.

If there was no oral hearing on the  Creditor’s motion for default judgment, however, and a default judgment is entered based solely on the defendant’s failure to answer plus an affidavit as proof of liquidated damages, the absence of a reporter’s record will not provide a basis for reversal because there were no proceedings in court that the court reporter could have transcribed.

Failure to preserve evidentiary objections

Creditors typically move for default judgment and summary judgment with affidavits and documents attached to them as exhibits marked with consecutive numbers or letters. When a case goes to trial (bench trial) many creditors will not bring a live witness, but will instead rely on a business records affidavit. Live witnesses are most likely in cases involving a large amount of debt.

A number of objections can be made to such affidavits, and to documents attached to them. But those objections must be made in the trial court, and the court must rule on them.

As a general rule, objections to evidence cannot be made for the first time on appeal. That said, there is at least one major exception: conclusory affidavit testimony. Conclusory means that the testimony is not supported by detailed facts in the affidavit itself or specific information contained in the attached business records or other documentary exhibits. What statements an appellate court will treats as conclusory, however, is not always certain or predictable. Therefore, it makes good sense to raise this objection in the trial court along with other objections that must first be presented to the trial court judge, and overruled by that judge, to provide a basis for a complaint about the judgment on appeal. This applies to motions for summary judgment and affidavits offered at trial. In the default judgment context, after all, the Defendant is not present to make any objections.

Failure to properly raise an affirmative defense in the trial court

Like most evidentiary objections, affirmative defenses—such as the contention that a debt claim is time-barred under the four-year statute of limitations for debt--must be properly raised on the trial court. Moreover, it is not enough for the Defendant to invoke an affirmative defense in the Defendant’s Answer, he or she must also produce evidence to support the affirmative defense, or at least point to the Creditor’s evidence if the Creditor’s own evidence happens to support the defense. When the Creditor moves for summary judgment against the Defendant, the Defendant (nonmovant) may rely on the Creditor’s evidence (if it is useful for the defense of the case), but this supporting evidence should be pointed to expressly in the Defendant’s written response to the Creditor's motion.

Failure to plead an affirmative defense

Filing an answer--any answer--will normally be enough to prevent the entry of a no-answer default judgment. But in order to defeat a Creditor’s claim based on the statute of limitations or another affirmative defense, such as the statute of frauds, the defense must be raised in the Defendant’s pleading. If the Defendant fails to comply with this rule, she runs the risk of not being able to argue that defense in opposition to the creditor’s motion for summary judgment and may also be barred from trying to prove the defense at trial. Even attorneys sometimes fall into this trap. At trial, it will be too late to amend the pleadings unless the judge grants leave or the Creditor's attorney does not object, allowing the matter to be tried "by consent".

Some affirmative defenses—such as lack of capacity to sue--must be verified (sworn to) in the Defendant’s answer to be considered effective. And a suit on sworn account under Rule 185 also requires a verified denial, assuming it can be made in good faith. Sworn account suits, however, are not appropriate in the case of loans and credit card debt because they require either (1) an underlying sales transaction between the plaintiff and the defendant that gives rise to a debt, or (2) provision of services that were not paid for.


Richard LARES, Appellant,
Martha FLORES, Appellee.

No. 04-13-00792-CV.
Court of Appeals of Texas, Fourth District, San Antonio
Delivered and Filed: February 11, 2015.
Sitting: Sandee Bryan Marion, Chief Justice, Marialyn Barnard, Justice, Luz Elena D. Chapa, Justice.



This is an appeal from an order clarifying a final decree of divorce. On appeal, appellant Richard Lares, who was pro se below and appears pro se on appeal, raises four issues challenging the trial court's order, claiming the trial court erred by: (1) failing to provide him notice of the hearing; (2) denying his motion for continuance; (3) refusing to hold appellee Martha Flores in contempt; and (4) discriminating against him because he is incarcerated, i.e., believing Flores's testimony instead of his. We affirm the trial court's order.


A detailed rendition of the factual background is unnecessary for the disposition of this appeal. Accordingly, we provide a short procedural and factual background for context.

The trial court rendered a final decree of divorce in this case in 2007. A modified decree was rendered in 2008. In 2013, Lares filed a motion seeking to "vacate, correct, and modify" the final decree. A hearing was scheduled for September 13, 2013, but was reset to October 22, 2013, pursuant to an order signed September 13, 2013. On October 21, 2013, Lares filed a "Motion for Continuance, Entry for Contempt of Court, for Discovery, and for Deposition." The trial court denied the request for continuance and proceeded with the October 22, 2014 hearing. Lares, who is incarcerated, telephonically appeared at the hearing; Flores and her counsel personally appeared.

After the hearing, the trial court orally rendered an order clarifying the original divorce decree. The trial court later reduced the order to writing. Thereafter, Lares perfected this appeal.


Before we conduct any analysis of the issues raised by Lares, we must discuss whether he has presented anything for our review, i.e., has he waived his complaints due to inadequate briefing. In March 2014, Lares filed a pro se brief. After review, this court rendered an order, finding the brief "materially deficient." We specifically found that, among other things, the brief failed to provide references to the record in support of the nature of the case, the course of the proceedings, or the statement of facts. See TEX. R. APP. P. 38.1(d). Similarly, the argument portion of the brief failed to contain appropriate citations to legal authorities or to the appellate record. Id. R. 38.1(i). We ordered Lares to file an amended brief, cautioning him "that each statement in the brief about the proceedings in the trial court or about the evidence offered or admitted at such proceedings must be supported by citation to the appropriate volume and page of the clerk's order reporter's record," and his "legal arguments must be supported by appropriate citations to both the appellate record and relevant legal authorities." We also referred appellant to case law stating that even though he is pro se, he is required to comply with all applicable rules of procedure, including the Texas Rules of Appellate Procedure, and he would be held to the same standards as a licensed attorney. See Sweed v. City of El Paso, 346 S.W.3d 679, 680 (Tex. App.-El Paso 2009, pet. denied)Paselk v. Rabun, 293 S.W.3d 600, 611 (Tex. App.-Texarkana 2009, pet. denied). This court provided Lares with a copy of the entire appellate record.
Thereafter, Lares filed a motion to extend time to file his brief. We granted the request, and in our order we stated, in pertinent part:
Appellant is advised to cite to the appellate record as follows. Cite to the reporter's record by stating the date of the hearing (10/22/13 or 12/8/14), page number, and if relevant, the line number. Cite to the clerk's record by referring to either the Clerk's Record or the Supplemental Clerk's record and the page number therein, and/or by identifying the specific document referred to by title.
Lares filed an amended brief. Although this court accepted the brief "as is," we issued a letter to Lares advising him the brief still failed to comply with the Texas Rules of Appellate Procedure because it contained insufficient citations to the appellate record. Lares seemingly acknowledged the briefing deficiency by letter filed in this court on June 27, 2014, in which he "apologizes" for "not using the entire record to support by claims." Lares' seems to claim his current wife prepared the brief for him because he states in his letter to the court that he sent "her the record to use."

This court, and others, have held a pro se litigant must properly present his case on appeal, i.e., in accordance with the Texas Rules of Appellate Procedure. Clark v. Bristol West Ins. Servs. of Tex., Inc., No. 04-11-00276-CV, 2012 WL 4375790, at *1 (Tex. App.-San Antonio Sept. 26, 2012, no pet.) (mem. op.) (citing Valadez v. Avitia, 238 S.W.3d 843, 845 (Tex. App.-El Paso 2007, no pet.)); Canton-Carter v. Baylor Coll. of Med., 271 S.W.3d 928, 930 (Tex. App.-Houston [14th Dist.] 2008, no pet.)In re N.E.B., 251 S.W.3d 211, 211-12 (Tex. App.-Dallas 2008, no pet.). If we were to hold otherwise, pro se parties would have "an unfair advantage over those represented by counsel." Clark, 2012 WL at 4375790, at *1 (citing Valadez, 238 S.W.3d at 845Shull v. United Parcel Serv., 4 S.W.3d 46, 52-53 (Tex. App.-San Antonio 1999, pet. denied)); Canton-Carter, 271 S.W.3d at 930N.E.B., 251 S.W.3d at 212.
The Rules of Appellate Procedure, which we referred Lares to in our various orders and correspondence, require that an appellate brief contain a statement of facts supported by references to the record and 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). It is well-settled under Texas law that an appellate brief must contain appropriate citations to the appellate record and to proper authorities or the unsupported issues may be deemed waived. See, e.g., Keyes v. Helium Co. v. Regency Gas Servs., L.P., 393 S.W.3d 858, 861-62 (Tex. App.-Dallas 2012, no pet.) (holding failure to cite to relevant portions of record waives appellate review); Niera v. Frost Nat'l Bank, No. 04-09-00224-CV, 2010 WL 816191, at *3 (Tex. App.-San Antonio Mar. 10, 2010, pet. denied) (mem. op.) (holding that failure to provide appropriate records citations or substantive analysis waived appellate issue); WorldPeace v. Comm'n for Lawyer Discipline, 183 S.W.3d 451, 460 (Tex. App.-Houston [14th Dist.] 2005, pet. denied) (holding that failure to offer argument, citations to record, or authority waives appellate review); Citizens Nat'l Bank v. Allen Rae Invs., Inc., 142 S.W.3d 459, 489 (Tex. App.-Fort Worth 2004, no pet.)(holding that appellant waived alleged jury charge error by failing to include proper citation to record). More specifically, this court is not required to search the appellate record, with no guidance from the briefing party, to determine if the record supports the party's arguments. Keyes Helium Co., 393 S.W.3d at 861-62Rubsamen v. Wackman,322 S.W.3d 745, 746 (Tex. App.-El Paso 2010, no pet.)Citizens Nat'l Bank, 142 S.W.3d at 489.

Despite two orders and a letter, specifically warning Lares regarding the deficiencies in his brief, Lares failed to file a brief that contains appropriate and sufficient citations to the appellate record, which consists of over three hundred pages in the clerk's records and two volumes of reporter's records. Moreover, after filing his final brief, Lares admitted the deficiencies, sending a letter of apology for failing to "use" the appellate record. Additionally, Lares failed to cite to appropriate authorities in support of his complaints. Admittedly, he does include a few citations to authority, but most are not applicable to the issues raised.

Accordingly, we hold Lares failed to appropriately brief the issues raised in this court. He has, therefore, presented nothing for our review. We hold his issues are waived due to inadequate briefing.


Based on the foregoing, we hold Lares has waived his appellate complaints, and we affirm the trial court's order.

47 S.W.3d 26 (2000)

Jonathan CLEMENS, Appellant,
J. Chris ALLEN, Appellee.

No. 07-00-00353-CV.
Court of Appeals of Texas, Amarillo.
December 5, 2000.
Jonathan A. Clemens, Houston, pro se.

Robin E. Curtis, Suzanne Lehman Johnson, Houston, for appellee.
Before BOYD, C.J., and REAVIS and JOHNSON, JJ.

JOHNSON, Justice.

Jonathan Clemens appeals from a summary judgment in favor of J. Chris Allen. 27*27 By two issues Clemens urges that the trial court erred in granting summary judgment because (1) one prior motion for summary judgment was denied, and (2) appellee denied Clemens the right to take a deposition before the motion for summary judgment was heard and granted. We dismiss the appeal.


Appellant Jonathan Clemens appeals from a summary judgment in favor of appellee J. Chris Allen. The clerk of this court (the "appellate clerk") received appellant's pro se brief on October 2, 2000. The brief fails to comply with Tex.R.App.P. 38[1] in various ways. For example, the brief contains a Statement of the Case which references the nature of the case as originally being based on "defamatory acts and omissions" of appellee, and references both the final summary judgment appealed from and a prior partial summary judgment. References are not made to the appellate record, which consists of a clerk's record of two volumes containing 347 pages. The brief contains an Argument in which appellant "relies on the entire Record of this case" yet posits that "the Trial Court has virtually made much of the Record irrelevant to the [appellate] issues." The Argument asserts that "Appellant sees the decisions of the judge in the two motion hearings as of prime importance in this appeal," and generally references "new documents" filed by appellee in support of his supplemental motion for summary judgment. The Argument contains no references to the record or authorities, other than to note that Tex.R.Civ.P. 166a[2] calls for summary judgments to be based on documents, pleadings and evidence on file at the time of judgment, and to allege that the rule does not allow for multiple motions for summary judgment.
By letter from the appellate clerk dated October 17, 2000, appellant was advised that his brief had not been filed because it did not comply with Rule 38.1. Appellant was directed to correct the deficiencies in his brief and to submit such corrections no later than November 20, 2000. On November 9, 2000, appellee filed a Motion to Dismiss Appeal. The basis for the motion was that appellant's brief was not timely filed, and that it did not meet the requirements of the Rules of Appellate Procedure.

On November 22, 2000, the appellate clerk received appellant's Answer to Motion to Dismiss, and a letter response to the clerk's letter of October 17, 2000. The response to the clerk's letter outlines appellant's limited amount of time available to work on his brief because of the requirements of his job. The letter also asserts that (1) no specific deficiencies in his brief were identified in the clerk's letter, (2) appellant could not identify the implied deficiencies in the letter, (3) appellant made the correct points in his brief, (4) no harm can come from the deficiencies in his brief, and (5) this court should clarify the deficiencies referred to or accept the brief as written. No corrections or additions to the original appellant's brief were submitted.


Requisites of appellate briefs are specified in Rule 38. Rule 38 specifies that briefs must comply with specified requirements set out in detail in the Rule. Rule 38.1. Among other requisites, an appellant's brief is required to contain (1) a Statement of the Case which states concisely 28*28 the nature of the case, such as whether the case is a suit for damages, on a note, or involving a murder prosecution, and which should be supported by record references, (2) a Statement of Facts which states the facts pertinent to the issues or points presented, with record references, and (3) an argument for the contentions made, with appropriate citations to authorities and to the record. Rule 38.1(d), (f), (h). Substantial compliance with Rule 38 is acceptable. See Rule 38.9. In the event a brief does not comply with Rule 38, an appellate court may require amendment, supplementation or redrawing of the brief. Failure to take corrective action by an appellant whose brief remains in noncompliance with Rule 38 may result in appropriate action by the appellate court, including proceeding as if the offending party failed to file a brief. Rule 38.9(a); see Inpetco v. Texas Am. Bank/Houston, N.A., 729 S.W.2d 300 (Tex.1987). If an appellant in a civil case fails to timely file a brief, one option available to the appellate court is to dismiss the appeal for want of prosecution. Rule 38.8.

Texas courts do not maintain separate sets of procedural rules for litigants with counsel and for litigants representing themselves. Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978). Litigants representing themselves must comply with the same procedural rules as are applicable to represented parties. Id.


Appellant's brief does not identify how the trial court's summary judgment consideration and ruling failed to comply with TRCP 166a, other than to present argument, without authority, that it is improper for a litigant to file a second or supplemental motion for summary judgment. The brief does not at any point reference a specific page in the 347-page record, or a particular document in the record. Appellant does not contest any specific evidence submitted by appellee in support of the motion for summary judgment. No authorities are cited in the brief other than general references to TRCP 166a.

Appellant's response to the clerk's notice that his brief was not in compliance with Rule 38.1 did nothing to meet or correct the lack of compliance. The response is inadequate, as is appellant's brief.


The appeal is dismissed for want of prosecution. Rule 38.8, 38.9, 43.2(f). Appellee's Motion to Dismiss Appeal is denied as moot.

[1] Further references to a particular appellate rule will be by reference to "Rule_."

[2] Further references to a particular rule of civil procedure will be by reference to "TRCP _."

No comments:

Post a Comment