                                                                            ACCEPTED
                                                                        01-15-00155-CV
                                                             FIRST COURT OF APPEALS
                                                                     HOUSTON, TEXAS
                                                                  5/28/2015 10:35:32 AM
                                                                  CHRISTOPHER PRINE
                                                                                 CLERK

             CASE NO. 01-15-00155-CV

                                                       FILED IN
                                                1st COURT OF APPEALS
          IN THE COURT OF APPEALS                   HOUSTON, TEXAS
       FOR THE FIRST JUDICIAL DISTRICT          5/28/2015 10:35:32 AM
              HOUSTON, TEXAS                    CHRISTOPHER A. PRINE
                                                         Clerk



          CHARLES WADE, APPELLANT
                         VS.
      HARRIS COUNTY, ET AL., APPELLEES


  On Appeal from the 295TH Judicial District Court of
  Harris County, Texas, Trial Court No. 2011-69056


APPELLEES’ REPLY TO APPELLANT’S RESPONSE




                           LINEBARGER GOGGAN BLAIR
                                 & SAMPSON, LLP
                           4828 Loop Central Drive, Suite 600
                           Houston, Texas 78701
                           (713) 844-3405 direct phone
                           (713) 844-3400 main phone
                           (713) 844-3504 fax
                           Edward J. (Nick) Nicholas
                           State Bar No. 14991350
                           Nick.Nicholas@lgbs.com
                           Anthony W. (Tony) Nims
                           State Bar No. 15031500
                           Tony.Nims@lgbs.com

                           ATTORNEYS FOR APPELLEES
            APPELLEES’ REPLY TO APPELLANT’S RESPONSE


      Pursuant to Rules 5, 26, 37 and 42.3, TEX. R. APP. P., Appellees filed a Motion

to Dismiss asking the Court to dismiss this appeal for, inter alia, lack of jurisdiction

because Appellant, Charles Wade, failed to timely file his Notice of Appeal. On

May 14, 2014, the Court issued a letter instructing Appellant to provide a detailed

explanation showing that the Court has jurisdiction over this appeal. On May 26,

2015, Appellant filed his Response to Court Notice of 05/14/15 and/or Response to

Appellee Motion to Dismiss (“Response”).          Appellees now file this Reply to

Appellant’s Response.

                                   I. SUMMARY

      1.     Although a court of appeals should not dismiss an appeal for formal

defects or irregularities in appellate procedure in all cases, a court of appeals cannot

exercise jurisdiction when: (a) the appellant fails to file the proper “Document”

timely, and/or (b) the filed Document does not constitute a bona fide attempt to

invoke the court of appeal’s jurisdiction. In this case the Appellant failed to file a

proper Document timely, and he failed to file any Document invoking this Court’s

jurisdiction. Accordingly, this appeal should be dismissed for lack of jurisdiction.




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                        II. ARGUMENT & AUTHORITIES

A.    Appellant failed to file a proper Document timely

      2.     Appellees contend that, to be timely, Appellant had to file his Notice of

Appeal on or before October 30, 2015, but that Appellant filed his Notice of Appeal

on February 15, 2015. (See Motion to Dismiss, ¶ 6, p.2). Appellant does not dispute

this fact. (Response, ¶ 1, p. 4). Instead, and based upon the filing of another

Document (which purportedly constitutes a bona fide attempt to invoke this Court’s

jurisdiction), Appellant asserts that this Court should exercise jurisdiction pursuant

to TEX. R. APP. P. 44.3 (formerly Rule 83) (Id.).

      3.     However, the other bona fide Document must still be filed timely.

Warwick Towers Council of Co-Owners v. Park Warwick, L.P., 244 S.W.3d 838,

839 (Tex. 2008) (“We have further said that, ‘[i]f the appellant timely files a

document in a bona fide attempt to invoke the appellate court’s jurisdiction, the court

of appeals… must allow the appellant an apportion to amend or refile…”), citing,

Grand Prairie Indep. Sch. Dist. v. S. Parts. Imp., Inc. 813 S.W.2d 499, 500 (Tex.

1991) (per curiam). If the other Document is not filed timely, then the Court of

Appeals does not have jurisdiction. Foster v. Williams, 74 S.W.3d 200, 204

(Tex.App.-Texarkana 2002, pet. denied) (“The docketing statement filed by the

Fosters, even if considered to suffice as a notice of appeal, was not filed until

approximately eighty days after the judgment was signed. It was thus not timely.


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When a timely notice of appeal is not filed, this Court does not have jurisdiction to

consider the appeal on its merits.); Walsh v. Woundkair Concepts, Inc., No. 02-14-

00395-CV, 2015 WL 1544004, *5 (Tex.App.-Fort Worth, April 2, 2015, no pet.)

(mem. op. on reconsideration en banc) (“Because Appellants failed to timely file any

instrument in a bona fide attempt to invoke this court’s appellate jurisdiction … we

have no choice but to deny Appellants’ motion for extension of time and to dismiss

this appeal for want of jurisdiction.”).

      4.     Moreover, because the presence or absence of jurisdiction is more than

a mere procedural irregularity, Appellant’s reliance on former Rule 83, Sanchez v.

State, 885 S.W.2d 444, 446 (Tex.App.-Corpus Christi 1994, pet. denied) and

Boulous v. State, 775 S.W.2d 8 (Tex.App.-Houston [1st Dist.] 1989, pet ref’d) is

misplaced. Both of those cases were criminal cases, and both were later disapproved

of by the Court of Criminal Appeals’ en banc opinion in Olivo v. State, 918 S.W.2d

519, 522 (Tex.Crim.App. 1996):

      We disagree with the Corpus Christi Court of Appeals’ characterization
      of the lack of a timely filed motion for extension of time to file notice
      of appeal. It is not a mere procedural irregularity; it is a jurisdictional
      defect.

Accordingly, because Appellant did not timely file his Notice of Appeal, or any other

proper Document, this Court does not have jurisdiction, and the Appeal should be

dismissed.




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B.     Appellant failed to file any Document invoking this Court’s jurisdiction

       5.      Besides being filed timely, the other bona fide Document must also

invoke the Court of Appeal’s jurisdiction. Plaintiff’s Response points to five

documents he filed in addition to the February 15, 2015 Notice of Appeal:

                (1)      Request for Jury Trial (Response, ¶ 1, p.2);

                (2)      Motion for Continuance and Objection and Proposed Order
                         Granting Motion for Continuance (Response, ¶ 1, p.2);

                (3)      Verified Petition for Temporary Injunction (Response, ¶ 2,
                         p.2);

                (4)      July 27, 2014 Notice of Appeal to the 295th Judicial District
                         Court from the Tax Master’s Court (Response, ¶ 3, p.3,
                         Exhibit 4); and

                (5)      Motion for New Trial and Affidavit in Support of the Motion
                         for New Trial (Response, ¶ 4, p.3).

However, none of these documents state that Appellant wants to appeal the case to

this Court.1 As a result, they do not invoke this Court’s jurisdiction. Warwick, 244

S.W.3d at 839. (“[W]e have repeatedly said ‘that the factor which determines

whether jurisdiction has been conferred … [is] whether the instrument ‘was filed in

a bona fide attempt to invoke appellate court jurisdiction’.”). See also, Linwood v.




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         In re Smith, 270 S.W.3d 783, 786-87 (Tex.App.-Waco 2008, no pet) (“Here, Smith’s
letter [was sufficient because it] plainly stated his intent to appeal and identified the style and
cause number of the case.”).

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NCNB Tex., 885 S.W.2d 102, 103 (Tex. 1994) (per curiam) and Grand Prairie, 813

S.W.3d at 500.

       6.       If the other Document does not make a bona fide attempt to invoke the

appellate court’s jurisdiction, then the appeal must be dismissed for want of

jurisdiction.    Walsh, 2015 WL 1544004, at *1-5. (Appeal dismissed because

Appellants’: (a) request for a copy of the reporter’s record, (b) motion for judgment

notwithstanding the verdict, (c) motion for new trial, (d) certificate of post-trial

written discovery, and (e), statements indicating that they will, or might have to, file

an appeal, did not constitute a bona fide attempt to invoke the appellate court’s

jurisdiction).

C.     Appellant must be held to the same standard

       7.       Appellant also argues that the Court should hear his appeal because he

is a Pro Se litigant. (Response, ¶2, p. 4). However, “[p]ro se litigants are held to the

same standards as licensed attorneys, and they must therefore comply with all

applicable rules of procedure.” Foster, 74 S.W.3d, at 202. See also, Approximately

$8,500.00 v. State, No. 01-09-00316-CV, 2010 WL 4676986, *3 (Tex.App.-Houston

[1st Dist.] 2010, no pet.).

                  III. CONCLUSION AND PRAYER FOR RELIEF

       8.       For these reasons, Appellees ask the Court to grant their Motion to

Dismiss and to dismiss this appeal.



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                              Respectfully submitted,

                              LINEBARGER GOGGAN BLAIR
                                  & SAMPSON, LLP


                              By:
                                    Edward J. (Nick) Nicholas
                                    State Bar No. 14991350
                              4828 Loop Central Drive, Suite 600
                              Houston, Texas 78701
                              (713) 844-3405 direct phone
                              (713) 844-3504 fax
                              Nick.Nicholas@lgbs.com

                              ATTORNEYS FOR APPELLEES

                         CERTIFICATE OF SERVICE
     I certify that a copy of Appellees’ Motion to Dismiss was served by first-class

U.S. Mail, certified/return receipt requested, on Charles Ronald Wade, 4318

Woodmont, Houston, Texas 77045.



                              By:
                                     Edward J. (Nick) Nicholas




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