Javan P. Smith v. DC Civil Construction, LLC

Fourth Court of Appeals
San Antonio, Texas
February 6, 2017

No. 04-15-00362-CV

Javan P. SMITH,
Appellant

v.

DC CIVIL CONSTRUCTION, LLC,
Appellee

From the County Court At Law No. 10, Bexar County, Texas
Trial Court No. 2015-CV-01978
Honorable Martha Tanner, Judge Presiding

ORDER
Sitting: Sandee Bryan Marion, Chief Justice
Karen Angelini, Justice
Marialyn Barnard, Justice

Appellant, who is pro se in this appeal, filed his appellant’s brief on January 30, 2017.
The brief does not comply with the Texas Rules of Appellate Procedure because, among other
things, it does not (1) contain a proper index of authorities, (2) provide appropriate citations to
the clerk’s record or the reporter’s record, and (3) “contain a clear and concise argument for the
contentions made, with appropriate citations to authorities and to the record.” See TEX. R. APP.
P. 38.1(d), (g), (i). A copy of Rule 38.1 is attached to this order.

Substantial compliance with Rule 38 is sufficient. TEX. R. APP. P. 38.9. However, if Rule
38 has been flagrantly violated, this court may require a brief to be amended, supplemented, or
redrawn. TEX. R. APP. P. 38.9(a). If another noncomplying brief is filed, the court may strike the
brief, prohibit the party from filing another, and proceed as if the party had failed to file a brief.
Id. If an appellant fails to timely file a brief, the appellate court may dismiss the appeal for want
of prosecution. TEX. R. APP. P. 38.8(a)(1).

While it is true that pro se pleadings and briefs are to be liberally construed, a pro se
litigant is still required to comply with the law and rules of procedure. Shull v. United Parcel
Serv., 4 S.W.3d 46, 52-53 (Tex. App.—San Antonio 1999, pet. denied). Because appellant’s
brief does not comply with Rule 38.1, appellant is hereby ORDERED to file an amended
brief that complies with Rule 38.1 no later than March 8, 2017. If appellant fails to timely
file a brief that complies with Rule 38.1, this court will dismiss the appeal for want of
prosecution. TEX. R. APP. P. 38.8(a)(1).

_________________________________
Sandee Bryan Marion, Chief Justice

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 6th day of February, 2017.

___________________________________
Keith E. Hottle
Clerk of Court
 Rule 38.1
Appellant’s Brief

The appellant’s brief must, under appropriate headings and in the order here indicated, contain the
following:

(a) Identity of Parties and Counsel. The brief must give a complete list of all parties to the trial
court’s judgment or order appealed from, and the names and addresses of all trial and appellate
counsel, except as otherwise provided in Rule 9.8.
(b) Table of Contents. The brief must have a table of contents with references to the pages of the
brief. The table of contents must indicate the subject matter of each issue or point, or group of issues
or points.
(c) Index of Authorities. The brief must have an index of authorities arranged alphabetically and
indicating the pages of the brief where the authorities are cited.
(d) Statement of the Case. The brief must state concisely the nature of the case (e.g., whether it is a
suit for damages, on a note, or involving a murder prosecution), the course of proceedings, and the
trial court’s disposition of the case. The statement should be supported by record references, should
seldom exceed one-half page, and should not discuss the facts.
(e) Any Statement Regarding Oral Argument. The brief may include a statement explaining why oral
argument should or should not be permitted. Any such statement must not exceed one page and
should address how the court’s decisional process would, or would not, be aided by oral argument.
As required by Rule 39.7, any party requesting oral argument must note that request on the front
cover of the party’s brief.
(f) Issues Presented. The brief must state concisely all issues or points presented for review. The
statement of an issue or point will be treated as covering every subsidiary question that is fairly
included.
(g) Statement of Facts. The brief must state concisely and without argument the facts pertinent to the
issues or points presented. In a civil case, the court will accept as true the facts stated unless another
party contradicts them. The statement must be supported by record references.
(h) Summary of the Argument. The brief must contain a succinct, clear, and accurate statement of the
arguments made in the body of the brief. This summary must not merely repeat the issues or points
presented for review.
(i) Argument. The brief must contain a clear and concise argument for the contentions made, with
appropriate citations to authorities and to the record.
(j) Prayer. The brief must contain a short conclusion that clearly states the nature of the relief sought.
(k) Appendix in Civil Cases.
(1) Necessary Contents. Unless voluminous or impracticable, the appendix must
contain a copy of:
(A) the trial court’s judgment or other appealable order from which
relief is sought;
(B) the jury charge and verdict, if any, or the trial court’s findings of
fact and conclusions of law, if any; and
(C) the text of any rule, regulation, ordinance, statute, constitutional
provision, or other law (excluding case law) on which the argument is
based, and the text of any contract or other document that is central to
the argument.
(2) Optional Contents. The appendix may contain any other item pertinent to the
issues or points presented for review, including copies or excerpts of relevant court
opinions, laws, documents on which the suit was based, pleadings, excerpts from the
reporter’s record, and similar material. Items should not be included in the appendix
to attempt to avoid the page limits for the brief.

Tex. R. App. P. 38.1