James and Trena Johnson v. the Bank of New York, as Trustee for the Benefit of the Certificate Holders

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS

JAMES AND TRENA JOHNSON, §
No. 08-09-00018-CV
Appellants, §
Appeal from the
v. §
County Court at Law No. 5
THE BANK OF NEW YORK, AS §
TRUSTEE FOR THE BENEFIT OF THE of Dallas County, Texas
CERTIFICATE HOLDERS, ET AL., §
(TC#08-09653-E)
Appellee. §

MEMORANDUM OPINION

This appeal is before the Court on its own motion for determination whether the appeal

should be dismissed for want of prosecution. Finding that Appellants have not filed a clerk’s record

or a motion for extension of time, we dismiss the appeal.

Appellants failed to file the clerk’s record on February 18, 2009. On February 24, 2009, the

clerk of the Court sent the parties a notice that Appellants had not filed the clerk’s record or motion

for extension of time. Further, the notice advised the parties of the Court’s intent to dismiss for want

of prosecution unless, within ten days, one of the parties responded showing grounds to continue the

appeal. We were notified on February 11, 2009, by the Dallas County Clerk, that the clerk’s record

was prepared on January 18, 2009, but that the $45 fee had not yet been paid.

No clerk’s record has been filed. This Court possesses the authority to dismiss an appeal for

want of prosecution when the appellant has failed to file the clerk’s record within the time prescribed

because of appellant’s fault, and gives no reasonable explanation for such failure. TEX .R.APP .P.

37.3(b). We have also given the Appellants a reasonable opportunity to cure the failure to file the

clerk’s record. Id. Because the Appellants failed to file the clerk’s record and have not cured that
failure, we dismiss the appeal for want of prosecution pursuant to TEX .R.APP .P. 37.3(b), 42.3(b)-(c).

GUADALUPE RIVERA, Justice
March 19, 2009

Before Chew, C.J., McClure, and Rivera, JJ.