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Lopez v. Lopez

COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS AT HOUSTON
Jun 20, 2017
Appellate case number: 01-16-00994-CV (Tex. App. Jun. 20, 2017)

Opinion

Appellate case number: 01-16-00994-CV

06-20-2017

Eriberto Lopez, Jr. v. Jessika Martinez Lopez


ORDER Trial court case number: 2011-10549 Trial court: 257th District Court of Harris County

This Court's March 28, 2017 Memo Opinion and Judgment dismissed this pro se appeal for want of prosecution because appellant had failed to timely pay the appellate filing fee. On April 17, 2017, appellant filed a pro se "Motion to Reinstate this Appeal" of the Memo Opinion and Judgment, with an affidavit of indigency. This Court's May 2, 2017 Order deemed the motion to be a timely-filed rehearing motion, but also had ordered appellant, proceeding pro se and incarcerated, to comply with Chapter 14 governing inmate litigation within thirty days. See TEX. CIV. PRAC. & REM. CODE ANN. § 14.004(a) (West 2012); TEX. R. APP. P. 9.2(b)(1), 49.1.

On June 12, 2017, appellant timely filed a response containing an "Advisory to the Court," an affidavit of previous litigation, another affidavit of indigency, and a certified inmate trust account statement. See TEX. R. APP. P. 9.2(b)(1). Appellant's "Advisory" contended, among other things, that this Court should reinstate his appeal because Chapter 14 does not apply to actions governed by the Texas Family Code, such as the underlying suit, which is a petition to modify the parent-child relationship. This Court's May 2, 2017 Order had inadvertently limited the Family Code exception just to the affidavit of previous litigation, under section 14.004(a), and did not apply it to the entire underlying action. See TEX. CIV. PRAC. & REM. CODE ANN. § 14.002(b) ("This chapter does not apply to an action brought under the Family Code."), § 14.004(a)(1) (stating that inmate "shall file a separate affidavit or declaration" (1) "identifying each action, other than an action under the Family Code, . . .") (West 2012).

Accordingly, the Court withdraws the May 2, 2017 Order, and requests that the appellee, Jessika Martinez Lopez, file a response to appellant's "Motion to Reinstate this Appeal," filed on April 17, 2017, and "Advisory to this Court," filed on June 12, 2017, construed together as a motion for rehearing. See TEX. R. APP. P. 49.2 (noting that no response to motion for rehearing need be filed unless court so requests, and that rehearing motion will not be granted unless response has been filed or requested by court). Appellee's response to the rehearing motion, if any, should be filed no later than 10 days from the date of this order. See id. 10.3(a), 49.2.

It is so ORDERED. Judge's signature: /s/ Laura C. Higley

[v] Acting individually [ ] Acting for the Court Date: June 20, 2017


Summaries of

Lopez v. Lopez

COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS AT HOUSTON
Jun 20, 2017
Appellate case number: 01-16-00994-CV (Tex. App. Jun. 20, 2017)
Case details for

Lopez v. Lopez

Case Details

Full title:Eriberto Lopez, Jr. v. Jessika Martinez Lopez

Court:COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS AT HOUSTON

Date published: Jun 20, 2017

Citations

Appellate case number: 01-16-00994-CV (Tex. App. Jun. 20, 2017)