Opinion
Appellate case number: 01-16-00760-CV
10-12-2017
Cecil Adams and Maxine Adams v. Harris County, Texas et al.
MEMORANDUM ORDER Trial court case number: 2014-35653 Trial court: 157th District Court of Harris County
On June 16, 2017, the appellees filed their "Motion to Strike Appellant's 'Record,' to Dismiss for Lack of Jurisdiction, & to Dismiss for Failure to Prosecute." Among other complaints, appellees assert that the documents filed by appellants Cecil and Maxine Adams (collectively, "Adams") on October 17, 2016, as a Sworn Record are unauthorized and improper.
Adams attempted to file the Sworn Record pursuant to Texas Rule of Appellate Procedure 28.1(e), which provides, "In lieu of the clerk's record, the appellate court may hear an accelerated appeal on the original papers forwarded by the trial court or on sworn and uncontroverted copies of those papers. The appellate court may allow the case to be submitted without briefs." TEX. R. APP. P. 28.1(e). However, Adams did not file a motion seeking to proceed pursuant to Rule 28.1(e). See In re J.S., 136 S.W.3d 716, 717 (Tex. App.—El Paso 2004, order) (construing predecessor to Rule 28.1(e) and holding that appellant must file proper motion, accompanied by appropriate filing fee, demonstrating why proceeding under provisions of Rule is proper).
Adams is not entitled to proceed under Rule 28.1(e) here. The language of Rule 28.1(e) grants the Court discretion in determining whether a case may be considered without a formal record or briefing. See TEX. R. APP. P. 28.1(e) (providing that appellate court may hear accelerated appeal on sworn and uncontroverted copies of the papers filed in trial court); In re J.S., 136 S.W.3d at 717 (in construing predecessor to Rule 28.1(e)'s identical language, "[T]he purpose of [the rule] is to grant appellate courts the flexibility to expedite appeals by dispensing with the necessity of a formal record or briefing"); see also In re Tex. Natural Res. Conservation Comm'n, 85 S.W.3d 201, 207 (Tex. 2002) (stating that appellate court has discretion to allow appeal to be submitted without briefs under predecessor to Rule 28.1(e)). And Rule 28.1(e) also provides that any such record must be "uncontroverted." TEX. R. APP. P. 28.1(e). In light of the appellees' motion to strike the Sworn Record filed October 17, 2016, the record that Adams attempts to rely on is not uncontroverted.
Accordingly, this Court declines to exercise its discretion to proceed under Rule 28.1(e). The appellees' motion to strike Adams's Sworn Record is GRANTED. The Court further notifies Adams that he has twenty-one days from the date of this order to file a clerk's record complying with Texas Rule of Appellate Procedure 34.5 or to notify this Court that he has made arrangements to file the record or the case will be dismissed for want of prosecution.
It is so ORDERED. Judge's signature: _/s/ Evelyn V. Keyes
Acting individually Date: October 12, 2017