                               Fourth Court of Appeals
                                      San Antonio, Texas
                                            January 31, 2019

                                          No. 04-18-00218-CV

                                  Ex Parte Jake Alexander Garcia,

                    From the 408th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2017CI21969
                          Honorable Angelica Jimenez, Judge Presiding


                                             ORDER
Sitting:        Sandee Bryan Marion, Chief Justice
                Rebeca C. Martinez, Justice
                Patricia O. Alvarez, Justice
                Luz Elena D. Chapa, Justice
                Irene Rios, Justice
                Beth Watkins, Justice
                Liza A. Rodriguez, Justice

        On April 5, 2018, appellant filed his notice of appeal stating his intent to appeal from the
trial court’s order denying his petition for expunction. After multiple extensions, appellant filed
his appellant’s brief on September 14, 2018. On October 29, 2018, the Bexar County District
Attorney’s Office (“BCDA”)1 filed a motion to dismiss the appeal, explaining that appellant had
failed to serve his notice of appeal and, later, his appellant’s brief on the correct division of
BCDA. Further, according to BCDA, appellant had failed to comply with Texas Rules of
Appellate Procedure 9.5 and 25.1(e), because he had not served the Texas Department of Public
Safety (“TDPS”), a party to the underlying proceeding, with his notice of appeal or his
appellant’s brief. See TEX. R. APP. P. 9.5, 25.1(e).

       On November 5, 2018, a panel consisting of Justice Karen Angelini, Justice Marialyn
Barnard, and Justice Rebeca C. Martinez denied BCDA’s motion to dismiss this appeal;
however, the panel ordered appellant to file written proof in this Court on or before November
15, 2018 that he had complied with Rules 9.5 and 25.1(e) by serving his notice of appeal and his
appellant’s brief on all parties to this proceeding. The panel informed appellant that failure to
comply with the order would result in dismissal of his appeal. See TEX. R. APP. P. 42.3(c). When


1
 BCDA represents the Bexar County Respondents, including the Sheriff’s Office, the County Clerk’s Office, the
District Clerk’s Office, and the District Attorney’s Office.
appellant did not file a response to the order, on December 12, 2018, this appeal was dismissed
for failure to comply with an order of this Court.

        On December 27, 2018, appellant filed a motion for rehearing and a motion for rehearing
en banc. In appellant’s motion for rehearing en banc, appellant’s attorney, Suzanne Karmer,
asserted illness, computer issues and mistake as reasons for her failure to comply with this
Court’s November 5, 2018 order. To the motion for en banc reconsideration, appellant attached
a partial USPS receipt dated December 26, 2018, which reflects the purchase of postage stamps
and postage for an item mailed to “Legal Staff—Expunctions TXDPS.” Appellant does not
show how counsel complied with this Court’s November 5, 2018 order, other than to say that her
mistake “has since been rectified.”

        On January 15, 2018, appellant’s panel motion for rehearing was denied. See TEX. R.
APP. P. 49.3. Both TDPS and BCDA have filed responses to appellant’s motion for rehearing en
banc, arguing the standard for granting en banc reconsideration has not been met. We agree.

        Texas Rule of Appellate Procedure 41.2(c) provides that “[e]n banc consideration of a
case is not favored and should not be ordered unless necessary to secure or maintain uniformity
of the court’s decisions or unless extraordinary circumstances require en banc consideration.”
TEX. R. APP. P. 41.2(c) (emphasis added). We DENY appellant’s motion for rehearing en banc.
However, on our own initiative and because extraordinary circumstances exist, we GRANT
reconsideration en banc, VACATE our opinion and judgment of December 12, 2018, and
REINSTATE this appeal on the docket of this Court.

       Appellees’ briefs are due on or before March 4, 2019.

        We ORDER Suzanne Kramer to comply with our November 5, 2018 order and file
written proof in this Court on or before February 15, 2019 that she has complied with the
service requirements of Texas Rules of Appellate Procedure 9.5 and 25.1(e). If Ms. Kramer fails
to respond by the date ordered, she may be ordered to appear and show cause why she should not
be held in civil or criminal contempt of this Court or otherwise sanctioned.

        We further DIRECT the Clerk of this Court to serve this order on Ms. Kramer by
electronic mail, by certified mail return receipt requested, and by first-class United States mail.



                                                     _________________________________
                                                     Rebeca C. Martinez, Justice


       IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 31st day of January, 2019.



                                                     ___________________________________
                                                     KEITH E. HOTTLE,
                                                     Clerk of Court
