







COURT OF APPEALS








COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS




 
 
 
 
 
IN THE INTEREST OF J.S.


 
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No. 08-04-00078-CV
 
Appeal from the
 
388th District Court
 
of El Paso County, Texas
 
(TC#99CM6902)




 
O
P I N I O N
The appellant=s brief was due in this accelerated
appeal on April 14, 2004.  On April 21,
2004, the Clerk of Court made a courtesy call to appellant=s counsel to inform her that the
brief was past due.  In response, counsel
sent this Court a letter, stating her Abelief that accelerated appeals do
not require a brief and that a sworn record may suffice.@ 
Counsel bases her belief on an erroneous interpretation of Texas Rule of
Appellate Procedure 28.3.  We write to
explain the correct application of that rule. 
The rule states:
In lieu of the clerk=s
record, the appellate court may hear an accelerated appeal on the original
papers forwarded by the trial court or on sworn and uncontroverted copies of
those papers.  The appellate court may
allow the case to be submitted without briefs.
 




Tex.
R. App. P. 28.3.  
 
Rule 28.3 was formerly designated as
rule 42(c).  See Tex. R. App. P. 28 notes & cmts.; Lagrone
v. John Robert Powers Sch., Inc., 841 S.W.2d 34, 36-37 (Tex. App.--Dallas
1992, no writ) (Enoch, C.J.).  In Lagrone,
Justice Enoch explained the purpose and correct application of rule 42(c).  In that case, instead of filing a brief, the
appellants filed a motion to give priority to the appeal on the day their brief
was due.  841 S.W.2d at 35.  The court held:
[T]he
clear intent of section 42(c) is to allow the appellate court the opportunity
to reach the merits of a case as soon as possible by dispensing with the time
required for the parties to prepare briefs. 
It is not to allow an appellant to wait out the entire briefing time and
then to announce on the brief-due date, for the first time, that it does not
intend to file a brief. 
 
Id.
at 36.  Since the language of rule 42(c)
was carried forward into rule 28.3, we conclude that the intent of rule 42(c)
was carried forward as well.[1]  Therefore, the purpose of rule 28.3 is to
grant appellate courts the flexibility to expedite appeals by dispensing with
the necessity of a formal record or briefing.




As for briefs, the rule provides, AThe appellate court may allow the
case to be submitted without briefs.@ 
Tex. R. App. P. 28.3.  This language clearly gives the court, not
the appellant, the discretion to dispense with briefing.  See Lagrone, 841 S.W.2d at 37; see
also In re Tex. Natural Res. Conservation Comm=n, 85 S.W.3d 201, 207 (Tex. 2002) (stating that an
appellate court has the discretion to allow an appeal to be submitted without
briefs under rule 28.3).  An appellant
who believes that briefs are unnecessary 
may not simply announce its decision not to file a brief.  Instead, an appellant must file a proper
motion, accompanied by the appropriate filing fee, and must demonstrate why
briefs should not be required.  Lagrone,
841 S.W.2d at 37; see also Tex.
R. App. P. 10.1(a) (setting out the required contents of a motion);
Order Regarding Fees Charged in Civil Cases (setting out the fee for filing a
motion).
 When a court does not have the benefit of
briefing or argument, it must step out of its appropriate role as neutral
arbiter and into the unnatural role of advocate.  See Lagrone, 841 S.W.2d at 37.  Therefore, we will exercise our discretion to
dispense with briefing only in Aextraordinary circumstances.@ 
Id.
In this case, counsel did not file a
proper motion to dispense with briefing. 
She did not even notify the Court that no brief would be filed until
after the brief was past due.  Obviously,
this did not serve to expedite the appeal. 
And counsel has not attempted to demonstrate that this case presents extraordinary
circumstances that call for dispensing with briefs.[2]
            Therefore, we order the appellant to
file a motion for extension of time to file the brief within ten days from the
date of this opinion.  If no motion for
extension of time is 




filed within ten days, this appeal may be dismissed for want
of prosecution without further notice.  See
Tex. R. App. P. 38.8(a)(1),
42.3(b),(c).
 
SUSAN
LARSEN, Justice
May 13, 2004
 
Before Panel No. 1
Larsen, McClure, and Chew,
JJ.




[1]Although
the language of the two rules is not identical, the differences are not
substantive.  See Tex. R. App. P. 28 notes & cmts.


[2]This
is not to suggest that Counsel has acted in bad faith.  We believe her failure to file a brief was
based on an honest misunderstanding of the appellate rules.  


