Opinion
No. 04-17-00106-CV
05-18-2017
Richard TAYLOR, Appellant v. CPS ENERGY, Appellee
From the 438th Judicial District Court, Bexar County, Texas
Trial Court No. 2016-CI-18094
Honorable Michael E. Mery, Judge Presiding
ORDER
The reporter's record in this appeal was originally due March 27, 2017 but was not filed. On April 11, 2017, the court reporter filed a notification of late record stating the record was not filed because appellant has not requested the record nor has appellant paid or made arrangements to pay the reporter's fee to prepare the record and that appellant is not entitled to the record without paying the fee. See TEX. R. APP. P. 34.6(b), 35.3(b). We therefore ordered appellant to provide written proof to this court on or before May 11, 2017 that either: (1) the reporter's fee has been paid or arrangements satisfactory to the reporter have been made to pay the reporter's fee; or (2) appellant is entitled to the record without prepayment of the reporter's fee. See id. R. 35.3(b). We advised appellant that if he failed to respond within the time provided, his brief would be due thirty days after the clerk's record was filed in this court, and the court would only consider those issues or points raised in his brief that do not require a reporter's record for a decision. See id. R. 37.3(c).
In response, appellant timely filed proof that he requested the record and provided payment to the court reporter for preparation of the record. Thereafter, the court reporter filed the reporter's record on May 16, 2017. Accordingly, as the appellate record is now complete, we ORDER appellant to file his brief in this court on or before June 5, 2017.
The parties should note this appeal has been designated as an accelerated appeal. A review of the clerk's record, which was filed on May 4, 2017, reflects appellant is appealing an order granting CPS Energy's Rule 91a motion to dismiss and plea to the jurisdiction, which ultimately rests on jurisdictional grounds. See Texas Dep't of Crim. Justice v. Simons, 140 S.W.3d 338, 349 (Tex. 2004), superseded by statute on other grounds, TEX. GOV'T CODE § 311.034 (holding that interlocutory appeal may be taken from refusal to dismiss for want of jurisdiction whether jurisdictional argument is made by plea to jurisdiction or some other procedural vehicle); City of Austin v. Liberty Mut. Ins., 431 S.W.3d 817, 822 & n.1 (Tex. App.—Austin 2014, no pet.) (holding that right of interlocutory appeal in Civil Practice and Remedies Code section 51.014(a)(8) applied to Rule 91a motion to dismiss that challenged jurisdiction). Accordingly, appellant's brief must be filed within 20 days after the reporter's record was filed. See TEX. R. APP. 38.6.
We order the clerk of this court to serve a copy of this order on all counsel.
/s/_________
Marialyn Barnard, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 18th day of May, 2017.
/s/_________
Keith E. Hottle
Clerk of Court