Opinion
No. 07-07-0126-CV
July 25, 2007.
Appeal from the 320th District Court of Potter County; no. 71,326-D; Honorable Don Emerson, Judge.
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
ORDER
On this day came on to be considered the Motion to Strike Appellant's Pleadings and for Involuntary Dismissal and Motion to Extend Time of the Appellee, the Texas Department of Family and Protective Services, to file its brief. Having considered each motion, the Court is of the opinion that the motion to strike should be denied and the motion to extend should be granted.
By its motion to strike, Appellee requests this Court to dismiss this appeal, as a matter of law, because Appellant has failed to preserve any error by failing to timely file a statement of points pursuant to § 263.405 of the Texas Family Code. See In the Interest of R.C., No. 07-06-0444-CV 2007 WL 1219046 (Tex.App.-Amarillo April 25, 2007, no pet.); Coey v. Tex. Dep't. of Family and Protective Services, No. 03-05-0679-CV 2006 WL 1358490, at *2 (Tex.App.-Austin May 19, 2006, no pet.) (not designated for publication). An appeal is subject to involuntary dismissal pursuant to Rule 42.3 of the Texas Rules of Appellate Procedure for three specific reasons: (a) want of jurisdiction; (b) want of prosecution; and (c) because the appellant has failed to comply with a requirement of the Texas Rules of Appellate Procedure, a court order, or a notice from the clerk requiring a response or other action within a specified time. Because Appellee's motion to strike Appellant's pleadings and involuntarily dismiss this appeal does not raise a ground upon which this appeal can be summarily dismissed, the motion is denied.
As noted by the motion to extend time to file Appellee's brief, Appellant, Timothy Harrison Dustman, has already filed his brief and Appellant, Natasha Carpenter, has failed to file her brief. Under these circumstances, and in the context of an accelerated appeal, the Court finds that good cause does exists to extend the deadline for the filing of Appellee's brief by 15 days. Therefore, Appellee's brief in response to Appellant, Timothy Harrison Dustman's brief is now due on August 9, 2007.
It is so ordered.