X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:William Pena, an inmate, filed suit against the Texas Department of Criminal Justice as well as several individual defendants, including the Office of the Attorney General, alleging various tort claims and violations of his state and federal constitutional rights. The trial court dismissed Pena’s suit with prejudice as “frivolous or malicious.” The court of appeals affirmed the dismissal but reformed the trial court’s judgment to read “without prejudice.” The appeals court acted based on the assumption that the trial court had dismissed Pena’s suit for failure to comply with �14.004 of the Civil Practices & Remedies Code, which requires an inmate to list, with particularity, the operative facts of any suit previously filed in forma pauperis by the inmate. Under Texas law, such an error may be corrected through an amended pleading, so a dismissal with prejudice was not appropriate. Pena thereupon re-filed his suit. The trial court again dismissed the case with prejudice as frivolous. Although Pena filed motions for reconsideration and for an evidentiary hearing, the trial court did not rule on either request. Pena filed a notice of appeal. Immediately thereafter, the clerk of the 12th Court of Appeals sent Pena a letter that informed Pena that pursuant to Tex. R. App. P. 37.1, his notice of appeal failed to contain the information required by Tex. R. App. P. 25.1(e). Unless a proper notice of appeal was filed with the trial court on or before May 9, 2005, the letter read, the appeal would be referred to the court for dismissal. Pena did not respond to this letter, and the court summarily dismissed his appeal. Rule 25.1(e) requires that a notice of appeal in a civil case “be served on all parties to the trial court’s final judgment.” The court of appeals apparently dismissed the appeal because the notice of appeal failed to show on its face that the Office of the Attorney General had been properly notified of the appeal. Pena maintains in his brief that he did mail a copy of the notice of appeal to the Office of the Attorney General, and the amicus brief submitted on behalf of the attorney general carefully avoids contradicting this statement. Instead, the court of appeals found that Pena’s failure to include the name and address of the attorney general on the certificate of service attached to the notice of appeal constituted a violation of Rule 25.1(e). HOLDING:Pena’s failure to include the Attorney General’s name and address on his certificate of service violated Rule 9.5(d) of the Rules of Appellate Procedure, but it did not violate Rule 25.1(e) the only basis cited for the inadequacy of his notice of appeal and the stated reason for the dismissal of his appeal. As a result, the court held that the dismissal of the appeal could not be sustained on that ground. Moreover, the court stated that Rule 37.1 clearly requires an appellate clerk to notify the parties of a defect in the notice of appeal so that the appealing party can remedy the defect. The appellate clerk failed to correctly identify the defect in Pena’s notice of appeal and give him a chance to correct the mistake, the court stated. Accordingly, the Texas Supreme Court reversed the court of appeals’ judgment and remanded the case back to that court. OPINION:Per curiam.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 1 article* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.