APPELLANT

APPELLEE

FROM THE DISTRICT COURT OF LAMPASAS COUNTY, 27TH JUDICIAL DISTRICT

PER CURIAM

Appellee Max V. Bennett, as Independent Executor of the Estate of Max B. Bennett, deceased, has filed a motion to dismiss this appeal based on appellant Vance Hugh Gilbreath's failure to file a brief on time. We will grant the motion.

This is an appeal from an order signed July 8, 1994. Gilbreath filed a timely request for findings of fact and conclusions of law and certificate of cash deposit in lieu of bond. See Tex. R. Civ. P. 296, 306(c); Tex. R. App. P. 41(a), 48. The clerk received the transcript timely on September 6, 1994. ⁽¹⁾ See Tex. R. App. P. 54(a). Thus, Gilbreath had until October 6, 1994, to file his brief. Tex. R. App. P. 74(k). To date, Gilbreath has not tendered to the Clerk a brief for filing. Nor has Gilbreath filed a response to appellee's motion to dismiss reasonably explaining his failure to file his brief timely and showing that appellee has not suffered material injury thereby. See Tex. R. App. P. 19(a), 74(l). Accordingly, pursuant to Texas Rule of Appellate Procedure 60(a)(1), we grant appellee's motion and dismiss the appeal.

Before Justices Powers, Aboussie and B. A. Smith

Dismissed for Want of Prosecution on Appellee's Motion

Filed: December 7, 1994

Do Not Publish

1. ¹  Gilbreath did not file the statement of facts on or before November 7, 1994. Nor did he file a timely motion for extension of time to file the statement of facts. See Tex. R. App. P. 54(c).