NO. 07-09-0389-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

APRIL 13, 2010

______________________________

TONY GARZA, APPELLANT

V.

UNITED SUPERMARKETS, L.L.C., APPELLEE

_________________________________

FROM THE 237^TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2008-544,606 ; HONORABLE RUBEN GONZALES REYES , JUDGE

_______________________________

Before CAMPBELL, HANCOCK and PIRTLE, J.J.

ORDER ON MOTION FOR REHEARING

            Following proper notice required by the Texas Rules of Appellate Procedure, this Court dismissed Tony Garza's appeal against United Supermarkets, L.L.C. on January 12, 2010, for failure to pay the required filing fee.  On January 20, 2010, this Court received a letter from Appellant's counsel, dated January 19, 2010, containing the required filing fee, but no motion for rehearing, or motion to reinstate.  On February 10, 2010, Appellant filed a motion for rehearing and a motion to extend time to file that motion.  After granting the motion to extend time to file, this Court filed Garza's Motion for Rehearing.  By that motion, Garza requests that this Court's opinion be withdrawn and the appeal be reinstated now that the filing fee has been paid.  As grounds for the motion, Garza asserts that his attorney "misunderstood the laws regarding the deadline for paying the filing fees."  Per request from this Court, United Supermarkets filed a response to the motion for rehearing asserting that Appellant "could not have misunderstood the laws regarding the deadline for paying the filing fee because the Court clearly notified the attorney of the deadline and she (sic) still failed to pay the fee timely."

            As referenced by Appellee, by letter dated December 15, 2009, this Court did notify Garza that the filing fee had not been paid and that failure to pay that fee within ten (10) days could result in the dismissal of his appeal.  The involuntary dismissal of an appeal in a civil case is governed by Tex. R. App. P. 42.3.  Rule 42.3(c) specifically provides that an appeal in a civil case is subject to dismissal for failure to comply with a requirement of the Rules of Appellate Procedure, a court order, or a notice from the clerk requiring a response or other action within a specified time.  Therefore, without question, the appeal was properly dismissed.  We read Appellant's motion for rehearing, not as an attack on the propriety of the order of dismissal, but instead as a request that we equitably reinstate his appeal.

            Although there is no specific rule of appellate procedure setting forth the standard by which we review what is in effect a motion to reinstate an appeal after an involuntary dismissal, we find some guidance from Rule 165a(2) of the Texas Rules of Civil Procedure pertaining to the reinstatement of a civil proceeding after dismissal for want of prosecution.  That rule provides that a court shall reinstate the case upon a finding that the failure of the party or his attorney was not intentional or the result of conscious indifference but was due to an accident or mistake or that the failure was otherwise reasonably explained.  In determining when the filing fee was due, Garza had the benefit of not only the applicable rules, but also the express admonition of this Court.  Accepting Garza's explanation at face value, there is a distinct difference between a misunderstanding of appellate procedural rules and a flagrant disregard of the admonitions of this Court.  Finding that his failure to pay the required filing fee was the result of conscious indifference, Garza's Motion for Rehearing is denied. 

            It is so ordered.

                                                                                    Per Curiam