Opinion
No. 14-06-01135-CV
Memorandum Opinion filed June 14, 2007.
On Appeal from the 269th District Court Harris County, Texas Trial Court Cause No. 2006-55819.
Panel consists of Chief Justice HEDGES and Justices HUDSON and GUZMAN.
MEMORANDUM OPINION
Appellant, an inmate incarcerated in the Texas Department of Criminal Justice, appeals from a judgment of dismissal signed November 8, 2006. Appellant filed a pro se notice of appeal on December 18, 2006. To date, the appellate filing fee of $125.00 has not been paid. On December 27, 2006, this court notified appellant that the filing fee was due. No response was filed. On February 20, 2007, the Harris County District Clerk's office notified this court that appellant had not paid for preparation of the clerk's record. On February 21, 2007, this court notified appellant that his appeal was subject to dismissal for want of prosecution due to failure to pay or make arrangements to pay for the clerk's record. See TEX. R. APP. P. 37.3(b).
On March 9, 2007, appellant filed a motion to proceed in forma pauperis. Accordingly, this court abated the appeal to permit appellant to have the trial court consider his claim of indigency. See Higgins v. Randall Cty. Sheriff's Office, 193 S.W.3d 898, 899 (Tex. 2006) (requiring consideration of untimely affidavit of indigence before dismissal for non-payment).
On March 20, 2007, the clerk's record was filed. Our review of the trial court's judgment contained in the record reveals that appellant has been determined to be a vexatious litigant and is prohibited from filing litigation in Texas courts without obtaining permission of the local administrative judge. See TEX. CIV. PRAC. REM. CODE ANN. ' 11.101 (Vernon 2002). The trial court found that appellant did not obtain the administrative judge's permission to file this suit. The judgment further recites that the Fifth Circuit has determined that appellant had accumulated four "strikes" under 28 U.S.C. ' 1915(g), and ordered him "BARRED from bringing any civil action or appeal IFP [in forma pauperis] while he is incarcerated or detained in any facility unless he shows that he is under imminent danger of serious physical injury." Johnson v. Whatley, 73 Fed. Appx 79 (5th Cir. 2003) (not designated for publication).
The clerk's record also contained the trial court's ruling sustaining the contest to appellant's affidavit of inability to pay costs on appeal. Therefore, on March 29, 2007, we reinstated the appeal, ordered appellant to pay the appellate filing fee within fifteen days and to file his brief with thirty days. See TEX. R. APP. P. 38.8(a) (permitting dismissal for want of prosecution when appellant fails to file his brief timely); TEX. R. APP. P. 42.3(c) (allowing involuntary dismissal of case because appellant has failed to comply with a notice or order from clerk requiring a response or other action within specified time). No response was filed.
By order issued May 10, 2007, this court notified appellant his appeal would be dismissed unless he paid the appellate filing fee and filed his brief by May 30, 2007. Again, appellant did not respond.
Accordingly, the appeal is ordered dismissed.