Memorandum Opinion Per Curiam, 01-25-00657-CV, January 29, 2026.
On appeal from the 461st District Court of Brazoria County
Synopsis
The First Court of Appeals dismissed an appeal from a protective order due to the appellant’s failure to satisfy basic administrative requirements, specifically the payment of filing fees and clerk’s record costs. Despite receiving multiple deficiency notices from the court, the appellant failed to remit payment or establish indigence, triggering an involuntary dismissal under Texas Rules of Appellate Procedure 5, 37.3(b), and 42.3.
Relevance to Family Law
In the high-stakes arena of family law litigation—particularly involving protective orders—procedural precision is as critical as the underlying merits. This case serves as a cautionary tale for practitioners: an appeal from a protective order, which often carries significant implications for subsequent custody and possession orders, can be lost entirely on administrative grounds before the merits are ever briefed. For the appellee, this highlights a strategic “wait-and-see” approach; if an appellant fails to clear the initial financial hurdles of the appellate process, the trial court’s order remains undisturbed without the need for substantive briefing. For the appellant, it underscores that the Court of Appeals will not sua sponte excuse the non-payment of records or filing fees without a formal showing of indigence.
Case Summary
Fact Summary
This appeal arose from a protective order signed on July 22, 2025, in the 461st District Court of Brazoria County. Following the filing of the notice of appeal, the appellant failed to pay the required appellate filing fee and failed to make arrangements to pay for the clerk’s record. The Clerk of the First Court of Appeals issued a notice on September 22, 2025, regarding the non-payment of the filing fee, followed by a second notice on September 25, 2025, regarding the lack of a clerk’s record. These notices explicitly warned the appellant that the appeal was subject to dismissal if the fees were not paid or if indigence was not established. The appellant did not respond to either notice.
Issues Decided
The central issue was whether the Court of Appeals should exercise its authority to involuntarily dismiss an appeal when the appellant fails to comply with the financial and administrative prerequisites of the Texas Rules of Appellate Procedure, specifically after being provided notice and an opportunity to cure.
Rules Applied
The Court applied Texas Rule of Appellate Procedure 5, which governs the payment of filing fees in civil cases, and Rule 20.1, regarding the establishment of indigence for appellate costs. Additionally, the Court relied on Rule 37.3(b), which permits the dismissal of an appeal if no clerk’s record is filed due to the appellant’s fault, and Rule 42.3(c), which allows for involuntary dismissal when an appellant fails to comply with a court order or notice. The Court also cited various sections of the Texas Government Code and the Supreme Court’s Miscellaneous Docket regarding the schedule of fees for the Courts of Appeals.
Application
The court’s analysis was purely procedural. Upon reviewing the status of the appeal, the Court found that the appellant had ignored the administrative requirements necessary to move the case forward. The court noted that two separate warnings had been issued in September 2025, providing the appellant with clear deadlines and consequences. Because the appellant neither paid the fees nor filed a Statement of Inability to Afford Payment of Court Costs, the court determined that the failure to file the clerk’s record was the appellant’s “fault” within the meaning of TRAP 37.3(b). By failing to respond to the court’s notices, the appellant also triggered the dismissal provisions of Rule 42.3, which allows the court to clear its docket of non-responsive and non-compliant cases.
Holding
The Court of Appeals dismissed the appeal for want of prosecution and for failure to comply with the court’s notices and the appellate rules. The court held that dismissal was the appropriate remedy under Rule 42.3 and Rule 43.2(f) given the appellant’s sustained inaction.
In a secondary holding, the Court dismissed all pending motions as moot, thereby concluding the appellate court’s involvement and leaving the trial court’s protective order in full effect.
Practical Application
For family law litigators, this opinion reinforces the necessity of managing the “appellate mechanics” immediately following the notice of appeal. In the context of a protective order, where the appellant may be pro se or under significant financial strain, counsel must ensure that a Statement of Inability to Afford Payment of Court Costs is filed concurrently with the notice of appeal if the client cannot pay the record costs. For the prevailing party at the trial level, this case demonstrates that the appellate court will strictly enforce TRAP 5 and 37.3; thus, counsel for the appellee should monitor the appellate clerk’s correspondence closely to see if the appellant has actually perfected the appeal by paying for the record.
Checklists
Managing the Appellate Launch
- Confirm the filing fee is paid or a Statement of Inability to Afford Payment is filed on day one.
- Request the Clerk’s Record in writing and provide a copy of that request to the Court of Appeals.
- Verify that the Trial Court Clerk has received payment or a qualifying affidavit of indigence.
- Calendar all “Notice of Deficiency” deadlines; the First Court of Appeals rarely grants leniency if the first two notices are ignored.
Defending a Protective Order Appeal
- Monitor the appellate docket for the “Clerk’s Record Due” date.
- If the record is not filed, check for a “Notice of Late Record” from the appellate clerk.
- If the notice indicates non-payment, refrain from filing substantive motions until the court’s dismissal deadline passes.
Citation
Griffin v. Cruz, No. 01-25-00657-CV, 2026 WL (Tex. App.—Houston [1st Dist.] Jan. 29, 2026, no pet. h.) (mem. op.).
Full Opinion
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