NO. 07-97-0373-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
JULY 29, 1998
______________________________
JOE LEE MACKEY, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
ABATEMENT AND REMAND
_______________________________
FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 97-424181; HONORABLE JIM B. DARNELL, JUDGE
_______________________________
Before BOYD, C.J., and DODSON and REAVIS, JJ.
From a not guilty plea, appellant Joe Lee Mackey, was convicted of possession with intent to deliver more than four grams but less than 200 grams of cocaine. The jury assessed his punishment at fifteen years confinement in the Texas Department of Criminal Justice, Institutional Division. Appellant timely filed his notice of appeal.
The clerk's record was filed on December 30, 1997, and the reporter's record was filed on January 29, 1998. Appellant is represented by appointed counsel in this appeal. We granted appointed counsel three extensions to file appellant's brief, the last being due on May 26.
On July 8, this Court informed the district attorney and appellant that the appellant's brief was due on May 26, and yet no brief had been filed. The Court further advised them that the appeal would be abated and the cause remanded for a factual hearing unless appellant filed with this Court, within ten (10) days, a response satisfactorily explaining the absence of the brief. Tex. R. App. P. 38.8(b). No such response has been received.
Accordingly, we abate the appeal and remand the case to the trial court for proceedings under Rule 38.8(b). In pertinent part, this rule provides:
(1) Effect. An appellant's failure to timely file a brief does not authorize either dismissal of the appeal or, except as provided in (4), consideration of the appeal without briefs.
(2) Notice. If the appellant's brief is not timely filed, the appellate clerk must notify counsel for the parties and the trial court of that fact. If the appellate court does not receive a satisfactory response within ten days, the court must order the trial court to immediately conduct a hearing to determine whether the appellant desires to prosecute his appeal, whether the appellant is indigent, or, if not indigent, whether retained counsel has abandoned the appeal, and to make appropriate findings and recommendations. (Emphasis added).
(3) Hearing. In accordance with (2), the trial court must conduct any necessary hearings, make appropriate findings and recommendations, and have a record of the proceedings prepared, which record--including any order and findings--must be sent to the appellate court.
(4) Appellate court action. Based on the trial court's record, the appellate court may act appropriately to ensure that the appellant's rights are protected, including initiating contempt proceedings against appellant's counsel. If the trial court has found that the appellant no longer desires to prosecute the appeal, or that the appellant is not indigent but has not made the necessary arrangements for filing a brief, the appellate court may consider the appeal without briefs, as justice may require.
Upon remand, the trial court shall immediately cause notice of a hearing to be given and, thereafter, conduct a hearing to determine the following:
1. whether appellant still desires to prosecute the appeal;
2. whether appellant is still indigent and entitled to appointed counsel;
3. whether counsel for appellant has abandoned the appeal; and
4. whether appellant has been denied effective assistance of counsel given his attorney's failure to file a brief.
If the trial court finds that the appellant is still indigent, the trial court shall take such measures as may be necessary to assure effective representation of counsel, which may include the appointment of new counsel. Accord Tex. R. App. P. 38.8(b) (2) & (3). If the trial court appoints counsel for appellant, the judge shall state the name, address, and state bar number of said counsel in the court's findings. Moreover, the court shall further order appellant's counsel or appointed counsel to file appellant's brief no later than thirty (30) days after the date of the abatement hearing.
Upon remand, the judge of the trial court shall immediately cause notice to be given of, and shall conduct a hearing in accordance with provisions of Rule 38.8(b), supra, to determine the matters stated therein and enumerated above. After the hearing, the trial court shall cause the preparation of a supplemental clerk's record containing the court's findings of fact, conclusions of law, and such orders as the court may make and sign. Then the trial court shall cause the supplemental clerk's record and the reporter's record made at the hearing to be submitted to this Court not later than August 31, 1998.
It is so ordered.
Per Curiam
Do not publish. Tex. R. App. P. 44.4.
Herrera and Jose Bruno (the employees) appeal from a final summary judgment dismissing “with prejudice” their claims against Eagle Pass Independent School District (Eagle Pass or school district). Via two issues, the employees contend that the trial court erred by granting both the traditional and no-evidence summary judgments on their claims of retaliation. We reverse and remand in part and affirm in part.
According to the record before us, the employees sued Eagle Pass for violating their constitutional rights arising under §8 and §27 of article I of the Texas Constitution. The purported rights at issue were those prohibiting the school district from retaliating against them for filing a grievance. Eagle Pass moved for summary judgment. In attacking the §8 retaliation claim, it endeavored to show that the employees were not the victim of retaliation. However, in attacking the §27 claim, it argued that they had not been denied any right to remonstrance, to due process, or to petition the government. Yet, the employees did not accuse Eagle Pass of denying them of any such §27 rights. More importantly, Eagle Pass said nothing in its motion about the viability of the purported retaliation claim. Nonetheless, the trial court granted summary judgment and dismissed all the claims asserted by the employees against the school district.
It is beyond dispute that the motion for summary judgment must state the grounds upon which the movant relies. Tex. R. Civ. P. 166a(c). Similarly indisputable is the rule that a summary judgment cannot exceed the grounds or relief unmentioned in the motion. IBP, Inc. v. Klumpe, 101 S.W.3d 461, 468 (Tex. App.–Amarillo 2001, pet. denied). Therein lies the problem here.
The motion for summary judgment did not address the employees’ retaliation claim founded on §27, article I of the Texas Constitution. Rather, Eagle Pass argued that the employees were not denied any right to petition the government, which was not the substance of their cause of action. Thus, the trial court could not adjudicate the §27 retaliation claim via summary judgment since the matter was not before it.
Consequently, we reverse that portion of the summary judgment dismissing “with prejudice” the claim of retaliation founded upon §27, art. I of the Texas Constitution. The remainder of the summary judgment is affirmed.
Brian Quinn
Chief Justice