
MEMORANDUM OPINION


No. 04-05-00464-CV

IN THE INTEREST OF F.S.G. and J.M.G., Jr.

From the 218th Judicial District Court, Frio County, Texas
Trial Court No. 05-05-00154-CVF
Honorable Henry G. Schuble, Judge Presiding

PER CURIAM
 
Sitting:            Karen Angelini, Justice
Sandee Bryan Marion, Justice
Phylis J. Speedlin, Justice
 
Delivered and Filed:   September 14, 2005

DISMISSED
            On August 15, 2005, we issued an order noting that Appellant Jose Manuel Garcia has failed
to pay the applicable filing fee in this appeal. We explained that Texas Rule of Appellate Procedure
5 provides,
A party who is not excused by statute or these rules from paying costs must pay—at
the time an item is presented for filing—whatever fees are required by statute or
Supreme Court order. The appellate court may enforce this rule by any order that is
just.
Tex. R. App. P. 5. We, therefore, ordered Garcia to either (1) pay the applicable filing fee in this
appeal or (2) provide written proof to this court that he is excused by statute or these rules from
paying the filing fee. See Tex. R. App. P. 20.1 (providing that party who qualifies as indigent under
rule 20 may proceed without advance payment of costs). We warned that if appellant failed to
respond within the time provided, this appeal would be dismissed. See Tex. R. App. P. 42.3(c).
            We additionally noted that appellant’s brief was due on August 4, 2005, and that neither the
brief nor a motion for extension of time had been filed. We, therefore, also ordered Garcia to file his
appellant’s brief and a written response reasonably explaining (1) his failure to timely file the brief
and (2) why appellee is not significantly injured by his failure to timely file a brief. We warned that
if Garcia failed to file a brief and the written response by the date ordered, we would dismiss the
appeal for want of prosecution. See Tex. R. App. P. 38.8(a).
            In response, Garcia has filed a “Motion to Dismiss Appeal,” requesting that we dismiss his
appeal because the trial court has ordered a new trial on the same issues he complains about in his
appeal. Garcia also requests a dismissal without prejudice to allow him to refile his appeal after the
new trial. In his motion, Garcia states, “I am requesting this dismissal of my case so that the trial
court may hear my complaints by a new trial and I reserve the right to refile the appeal after the new
trial.” Although we can grant the motion to dismiss, we cannot enter an order regarding Garcia’s
future rights to appeal. Thus, we deny Garcia’s motion to dismiss.
            However, because Garcia has failed to file his appellant’s brief and because Garcia has failed
to pay the filing fee, we dismiss this appeal. See Tex. R. App. P. 38.8(a), 42.3(c).
 
                                                                                    PER CURIAM
 

