Ramon J. Rojo v. Daniel Hollander, Patsy Hollander, Nora Shelton and Doug Siems

CV6-105 TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-96-00105-CV Ramon J. Rojo, Appellant v. Daniel Hollander, Patsy Hollander, Nora Shelton and Doug Siems, Appellees FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT NO. 94-13164, HONORABLE F. SCOTT MCCOWN, JUDGE PRESIDING PER CURIAM Ramon J. Rojo attempts to appeal from a summary judgment rendered against him. Because the transcript was late, and a timely motion to extend time to file the transcript was not received, we will dismiss the appeal. Tex. R. App. P. 54(a), 60. The judgment was signed September 7, 1995. Appellant filed a timely motion for new trial and a timely perfecting instrument in the form of an affidavit of indigence. Appellees contested the affidavit and a hearing was held at which the contest was sustained. The trial court ordered appellant to file his bond or cash deposit by January 15, 1996. January 15 was a holiday; therefore, appellant's bond filed January 16, 1996, was timely. The transcript was due on January 5, 1996, with any motions for extension due January 22, 1996. The transcript was not received in the office of the Clerk of this Court until February 21, 1996, along with a "Motion for Leave to File and for Additional Time for Filing the Record and Appellant's Brief." The motion recites that the "clerk of the trial court has been unable to provide this Honorable Court with the necessary appellate materials that were requested. Appellant has requested that the material and affidavit from the Clerk of the Court be forwarded to the appropriate Court of appeals showing why the Clerk of the Court has not replied to Appellant's requests." A review of the record shows that the Travis County Clerk's office by a letter dated January 5, 1996, informed counsel for both sides that the clerk's office would not prepare the transcript until the bond had been filed; and that appellant needed to file for an extension of time to file the transcript in the appellate court. The record also shows that appellant did not request a transcript until February 20, 1996, the day before the transcript and motion for extension were received in this Court's clerk's office. The Court has no authority to consider a late-filed transcript in the absence of a timely motion for extension of time. Tex. R. App. P. 54(a). Further, the Court has no authority to grant an extension of time to file the transcript outside the fifteen-day limit. B.D. Click Co. v. Safari Drilling Corp., 638 S.W.2d 860, 862 (Tex. 1982). Appellant complains that he did not receive the letter from the district clerk. However, it is appellant's responsibility to bring the record timely to the appellate court. If a problem exists, it is appellant's burden to request a timely extension with whatever evidence is appropriate to support the extension request. Tex. R. App. P. 50(d); Guillen v. De Leon, 887 S.W.2d 503, 504 (Tex. App.--San Antonio 1994, no writ). Appellant was aware of when the judgment was signed, that a motion for new trial was filed, that the bond filing had been delayed due to the contest to the affidavit. He certainly could have filed a motion for extension based on the facts of the case. (1) Accordingly, appellant's motion to continue the appeal is overruled and his appeal dismissed for failing to file a transcript. His pending motion to extend time to file the record and motion to extend time to file his brief are dismissed. Appellees' pending motion for involuntary dismissal is dismissed. Before Justices Powers, Jones and B. A. Smith Dismissed Filed: April 17, 1996 Do Not Publish 1. Appellant complains that he is proceeding pro se. We note that appellees raise serious questions concerning appellant's pro se status. In any event, his pro se status does not excuse a late transcript and a late motion for extension.