One Justice dissents from dismissal, cautioning that death penalty sanctions should not imposted lightly. It was not clear whether the party or her attorney was at fault.
Holik v. Holik and in the Interest of A.F.H., a Child, No. 10-07-00239-CV (Tex.App.- Waco, Nov. 15, 2007)(Opinion by Chief Justice Gray, dissenting note by Justice Vance) (Before Chief Justice Gray, Justices Vance and Reyna)
In the Matter of the Marriage of Jackie Holik and Melissa Holik and in the Interest of A.F.H., a Child--Appeal from County Court at Law of Walker County
Melissa Holik appeals from an adverse judgment rendered in a divorce and child custody case. She has not filed a docketing statement. See Tex. R. App. P. 32.
In a letter dated September 10, 2007, the Clerk of this Court notified Melissa that the docketing statement must be filed within 21 days from the date of the letter. No docketing statement was filed. In another letter dated October 10, 2007, the Clerk warned Melissa that if the docketing statement was not filed within 21 days from the date of the letter, the appeal would be dismissed without further notification. See Tex. R. App. P. 42.3(b), (c) and 44.3.
More than 21 days have passed and we have not received the docketing statement. Accordingly, this appeal is dismissed.
Before Chief Justice Gray,
Justice Vance, and
(Justice Vance dissents with a note)*
Opinion delivered and filed November 14, 2007
* “(The clerk’s record contains a motion for new trial supported by Appellant’s affidavit, which shows that this appeal has arguable merit. Our records affirmatively show that the Appellant has no knowledge of any action we have taken since the filing of this appeal; all correspondence has been to her attorney. Yet, we have made no effort to determine whether the failure to file a docketing statement is due to the attorney or the Appellant. Because dismissal as a sanction is, in effect, a “death penalty,” which precludes consideration of the merits of the Appellant’s claim, a direct relationship must exist between the offensive conduct and the sanction imposed. See Olivarez v. State, 183 S.W.3d 59, 61 (Tex. App.—Waco 2005, no pet.) (Vance, J. concurring). Furthermore, we should consider relatively less stringent sanctions first to determine whether lesser sanctions will fully promote compliance, deterrence, and discourage further abuse. Id.)”