Opinion
No. 04-19-00716-CV
11-05-2020
THE STATE OF TEXAS ex. rel. Todd A. Durden, In His Official Capacity as County Attorney, Appellant v. James T. 'Tully' SHAHAN, In His Official Capacities as County Judge, Mark Frerich, In His Official Capacity as County Commissioner, Joe Montalvo, In His Official Capacity as County Commissioner, Dennis Dodson, In His Official Capacity as County Commissioner, Tim Ward, In His Official Capacity as County Commissioner, Kinney County Commissioners Court and Kinney County, Appellees
From the 63rd Judicial District Court, Kinney County, Texas
Trial Court No. 4866
Honorable Sid L. Harle, Judge Presiding
ORDER
On August 17, 2020, Appellant filed a consolidated brief for three separate appeals numbered 04-19-00714-CV, 04-19-00715-CV, and 04-19-00716-CV.
Two days later, Appellees moved to strike Appellant's consolidated brief arguing that (1) Appellant had not asked for permission to file a consolidated brief and (2) the consolidated brief exceeded the authorized word limit, see TEX. R. APP. P. 9.4(i)(2)(B).
Appellant asked this court to (1) authorize a consolidated brief, (2) increase the word limit to the words contained in his consolidated brief, and (2) accept the consolidated brief as filed. Appellant argued it would waste judicial resources to review three separate briefs for highly interrelated appeals and his requested word count increase would still be well below the combined word count for three separate briefs.
In our September 2, 2020 order, we granted Appellant's request to file a consolidated brief, but we expressly denied Appellant's request to exceed the Rule's word limit, see id. We ordered Appellant to file a Rules-compliant brief by October 2, 2020.
On October 2, 2020, Appellant filed a consolidated brief with a certificate of compliance which states the word count is "approximately 18,000." Contra id. The certificate also asserts that the "approximately 18,000" words in the consolidated brief are "less than the aggregate limit of 27,000 per Rule 9.4(i)(2)(B) of all briefs filed by Appellant in the three cases."
In response, Appellees moved to strike Appellant's brief for its alleged failure to comply with various parts of Rule 38.1, see TEX. R. APP. P. 38.1, and its overt failure to comply with our order expressly denying an increased word limit.
In our September 2, 2020 order, with a full understanding that Appellant would submit a single brief that addressed the merits of three separate but highly interrelated appeals, we expressly denied Appellant's request for an increased word limit.
Nevertheless, in direct contradiction of our order, Appellant's brief exceeds the 15,000-word limit of Rule 9.4(i)(2)(B). Further, portions of Appellant's brief fail to provide "appropriate citations to authorities and to the record." See TEX. R. APP. P. 38.1(i).
Appellee's motion to strike Appellant's October 2, 2020 brief is GRANTED. We ORDER Appellant to file an amended brief that has a maximum of 15,000 words, see TEX. R. APP. P. 9.4(i)2)(B), within TEN DAYS of the date of this order. The amended brief must correct all the violations listed above and fully comply with the applicable rules. See, e.g., id. R. 9.4, 9.5, 38.1.
If Appellant's second amended brief does not comply with this order, we will, without further notice, "strike the brief, prohibit [Appellant] from filing another," and dismiss these appeals for want of prosecution. See id. R. 38.9(a); see also id. R. 38.8(a) (authorizing this court to dismiss an appeal if an appellant fails to timely file a brief).
If Appellant timely files a brief that complies with this order, Appellees must file an amended brief, or an amended brief waiver, within TEN DAYS after Appellant's brief is filed. See TEX. R. APP. P. 38.6(b). If Appellees waive their right to file an amended brief, this court will use Appellees' October 30, 2020 brief as Appellees' brief.
It is so ORDERED November 5, 2020.
PER CURIAM
ATTESTED TO:/s/_________
MICHAEL A. CRUZ,
CLERK OF COURT