Opinion
04-21-00486-CV
01-26-2022
Joe MARTINEZ, Appellant v. Avelina MARTINEZ, Appellee
From the 224th Judicial District Court, Bexar County, Texas Trial Court No. 2021CI00183 Honorable Nicole Garza, Judge Presiding
Sitting: Rebeca C. Martinez, Chief Justice Patricia O. Alvarez, Justice, Lori I. Valenzuela, Justice
MEMORANDUM OPINION
PER CURIAM
The filing fee of $205.00, which was due from appellant Joe Martinez when this appeal was filed, was not paid. The clerk of this court notified appellant of this deficiency in a letter dated November 4, 2021 and stated the fee must be remitted no later than November 18, 2021. Rule 5 of the Texas Rules of Appellate Procedure provides:
A party who is not excused by statute or these rules from paying costs must pay- at the time an item is presented for filing-whatever fees are required by statute or Supreme Court order. The appellate court may enforce this rule by any order that is just.Tex. R. App. P. 5.
The clerk's record was originally due on December 20, 2021. On December 21, 2021, the trial court clerk filed a Notification of Late Record stating appellant has failed to pay or make arrangements to pay the clerk's fee for preparing the record and appellant is not entitled to appeal without paying the fee.
On December 22, 2021, this court issued an order directing appellant, no later than January 4, 2022, to either (1) pay the applicable filing fee or (2) provide written proof to this court that he is excused by statute or the Rules of Appellate Procedure from paying the fee. See Tex. R. App. P. 20.1 (providing that indigent party who complies with provisions of that rule may proceed without advance payment of costs). Our order cautioned appellant that if he failed to respond satisfactorily within the time ordered, this appeal would be dismissed. See Tex. R. App. P. 42.3(c). In that same order, we also directed appellant to provide written proof to this court, no later than January 4, 2022, that either (1) the clerk's fee has been paid or arrangements have been made to pay the clerk's fee; or (2) appellant is entitled to appeal without paying the clerk's fee. Our order cautioned appellant that if he failed to respond within the time provided, this appeal would be dismissed for want of prosecution. See Tex. R. App. P. 37.3(b).
On January 14, 2022, appellant's attorney filed a motion asking this court to "reconsider" its December 22 order. In this motion, counsel states he discovered our December 22 order went to his "spam" account on January 13, 2022. The next day, counsel paid the filing fee and filed the docketing statement.
However, appellant did not provide written proof to this court, no later than January 4, 2022, that either (1) the clerk's fee has been paid or arrangements have been made to pay the clerk's fee; or (2) appellant is entitled to appeal without paying the clerk's fee. In his motion, appellant's counsel makes no mention of complying with this portion of our December 22 order.
Because appellant has failed to comply with our December 22 order directing him to provide written proof to this court, no later than January 4, 2022, that either (1) the clerk's fee has been paid or arrangements have been made to pay the clerk's fee; or (2) appellant is entitled to appeal without paying the clerk's fee, this appeal is dismissed for want of prosecution. See Tex. R. App. P. 37.3(b). Counsel's motion to "reconsider" our December 22 order is denied.