



hanners v. herrin








 











COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH 

NO. 2-03-271-CV





JAMES M. HANNERS 	APPELLANT







V.



TOMMY J. HERRIN AND 	APPELLEES

PAULA HERRIN

----------



FROM THE 17TH DISTRICT COURT OF TARRANT COUNTY



----------



MEMORANDUM
 
OPINION
(footnote: 1)
------------

This court’s opinion and judgment of December 23, 2003 is withdrawn and the following is substituted in its place.

On September 29, 2003 and October 13, 2003 we notified Appellant, in accordance with rule of appellate procedure 42.3(c), that we would dismiss this appeal unless the $125 filing fee was paid. 
 See
 
Tex. R. App. P.
 5, 12.1(b), 42.3(c).  On November 25, 2003, we notified Appellant that the check he had tendered for the $125 filing fee had been returned by his bank due to insufficient funds.  We informed Appellant that if a money order in the amount of $125 was not received by the court by December 5, 2003, this appeal would be dismissed. 

On December 23, 2003, this appeal was dismissed for non-payment of the $125 filing fee.  On January 8, 2004, Appellant filed a motion to reconsider and reinstate the appeal.
(footnote: 2)  On January 26, 2004, Appellant tendered a money order for $125, and on February 12, 2004, this court granted Appellant’s motion.  On February 20, 2004, Appellees filed a motion requesting that we vacate our February 12 order. 

We have carefully considered Appellant’s motion to reconsider and reinstate the appeal and Appellees’ objections to the motion.  Appellant’s notice of appeal was filed on September 12, 2003, on which date the $125 filing fee was due.  This court notified Appellant on September 29, October 13, and November 25, 2003 that the $125 had still not been paid and that the appeal was subject to dismissal.  We conclude that Appellant’s belated tender of a $125 money order on January 26, 2004 was untimely, and the Clerk of this court is ordered to return the tendered $125 to Appellant.     

Because Appellant has failed to comply with a requirement of the rules of appellate procedure and the Texas Supreme Court's order of July 21, 1998,
(footnote: 3) we dismiss the appeal.  
See 
Tex. R. App. P
. 42.3(c), 43.2(f).



PER CURIAM



PANEL D:	HOLMAN, GARDNER, and WALKER, JJ.



DELIVERED:  March 18, 2004

FOOTNOTES
1:See 
Tex. R. App. P. 47.4.


2:This motion was filed under rule 9.2(b) (the “mailbox rule”).  
Tex. R. App. P.
 9.2(b).


3:July 21, 1998 “Order Regarding Fees Charged In Civil Cases In The Supreme Court And The Courts of Appeals,” 971-972 S.W.2d (Tex. Cases) XXXVIII (1998).


