Frank Garcia v. Lydia Gomez

NO. 07-06-0403-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

DECEMBER 7, 2006

______________________________

FRANK GARCIA, APPELLANT

V.

LYDIA GOMEZ, APPELLEE

_________________________________

FROM THE 72^ND DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2003-523,605; HONORABLE RUBEN REYES, JUDGE

_______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

ON MOTION FOR REHEARING

By opinion and judgment dated October 31, 2006, we dismissed this appeal pursuant to Texas Rule of Appellate Procedure 42.3(c) because appellant failed to respond, by the deadline we set, to our letter advising that the appellate filing fee had not been paid and the docketing statement had not been filed. Garcia v. Gomez, No. 07-06-0403-CV, 2006 WL 3079002, (Tex.App.-Amarillo October 31, 2006, no pet.). On November 3, 2006, appellant filed an amended notice of appeal, accompanied by the docketing statement, the filing fee and a motion for rehearing. Tex. R. App. P. 49.1. Although the unverified motion for rehearing gives no details but refers only to "inefficiencies," counsel states in the motion that the omissions that led us to dismiss the appeal were solely his fault. See Tex. R. App. P. 10.2(c). Appellee has submitted a response opposing the motion for rehearing. ⁽¹⁾ In the interests of justice, ⁽²⁾ we grant appellant's motion. Our October 31 opinion is withdrawn and our judgment of the same date is vacated. The appeal is reinstated on the Court's docket.

On or before January 5, 2007, appellant's counsel shall certify in writing to the clerk of this Court that appellant has met the requirements of Texas Rule of Appellate Procedure 35.3(a)(2) and, if a reporter's record is to be filed, Texas Rules of Appellate Procedure 35.3(b)(2) and (b)(3). Failure to provide the certification may result in dismissal of the appeal without further notice from the Court. Tex. R. App. P. 42.3(b), (c).

The clerk's record, and any reporter's record, shall be filed on or before January 12, 2007, and the parties' briefs shall be due in accordance with Texas Rule of Appellate Procedure 38.6.

It is so ordered.

Per Curiam

1. Appellee's response contends appellant's failure to pay the filing fee and file the docketing statement constitute a failure to perfect the appeal. Appellant perfected appeal by his timely-filed notice of appeal, invoking our jurisdiction over the appeal. Tex. R. App. P. 25.1(a), (b).

2. In a reply to appellee's response, appellant adds the contention that our October 31, 2006 dismissal of the appeal was contrary to Rule of Appellate Procedure 44.3. We reject this contention. Our October 10 letter to appellant clearly provided the ten days' notice required by Rule 42.3. The Court did not dismiss the appeal following the ten-day period discussed in the letter, but waited an additional eleven days to do so.