Opinion
No. 10-05-00385-CV
Opinion delivered and filed January 25, 2006.
Appeal from the 246th District Court, Harris County, Texas, Trial Court No. 0366455.
Appeal dismissed.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA (Justice VANCE concurring with a note)
"(Justice Vance concurs in the dismissal based only on the failure to pay the filing fee. The Court did not authorize the letter upon which the remaining grounds for dismissal are based. Furthermore, dismissal as a sanction is, in effect, a "death penalty," which precludes consideration of the merits of the appellant's claim. Under the law developed to evaluate trial court-dismissals of civil proceedings as sanctions, such a sanction must be "just." TransAmerican Natural Gas v. Powell, 811 S.W.2d 913, 917 (Tex. 1991) (orig. proceeding). That means a direct relationship must exist between the offensive conduct and the sanction imposed. Id. Furthermore, a permissible sanction should be no more severe than required to satisfy legitimate purposes. Chrysler Corp. v. Blackmon, 841 S.W.2d 844, 849 (Tex. 1992) (orig. proceeding). A court must consider relatively less stringent sanctions first to determine whether lesser sanctions will fully promote compliance, deterrence, and discourage further abuse. Id. Here, we have not tried to determine where the fault lies as between Robin Castellanos and her lawyer, nor have we sought compliance by imposition of a lesser sanction such as a fine. While we may conclude that the failure of the lawyer to file a docketing statement and take other steps reflects adversely on the merits of the client's appeal, we should not jump to that conclusion without inquiry.)
MEMORANDUM OPINION
This case was transferred to this Court from the First Court of Appeals in Houston. The Clerk of this Court notified Appellant by letter that there were several problems with her case which must be addressed within 21 days of the date of the letter or the appeal would be dismissed.
The problems we notified Appellant about are as follows:
1. The original filing fee of $125.00 has not been paid;
2. The notice of appeal appeared untimely filed;
3. The Clerk's Record had not been filed;
4. The docketing statement had not been filed; and
5. The Reporter's Record had not been filed.
The Clerk also notified Appellant that if she did not make appropriate arrangements in response to these problems or if she failed to respond to the instructions given in the letter, the appeal would be dismissed without further notice.
More than 21 days have passed, and Appellant has not responded to any item listed in the Clerk's letter. Accordingly, this appeal is dismissed. TEX. R. APP. P. 42.3(c).
Absent a specific exemption, the Clerk of the Court must collect filing fees at the time a document is presented for filing. TEX. R. APP. P. 12.1(b); Appendix to Tex.R.App.P., Order Regarding Fees (July 21, 1998). See also TEX. R. APP. P. 5; 10TH TEX. APP. (WACO) LOC. R. 6; TEX. GOV'T CODE ANN. §§ 51.207(b) and 51.901 (Vernon Supp. 2004-2005). Under these circumstances, we suspend the rule and order the Clerk to write off all unpaid filing fees in this case. TEX. R. APP. P. 2.