McCalley — Appeal dismissed for failure to file a brief

Case
Damaris McCalley v. the State of Texas
Court
Texas Second Court of Appeals
Judge
Sudderth, C.J. (Rick Perry, 2015); Kerr, J. (elected 2016); Birdwell, J. (Greg Abbott, 2017)
Date Decided
October 1, 2026
Docket No.
02-26-00200-CV
Topics
Appellate Procedure; Want of Prosecution; Briefing Deadlines
Source
Read the full opinion

Background

Damaris McCalley appealed from a proceeding in the 16th District Court of Denton County, Texas, but failed to file the appellant’s brief required by the Texas Rules of Appellate Procedure.

On August 7, 2026, the court of appeals warned McCalley that it could dismiss the appeal for want of prosecution unless, within ten days, McCalley filed a brief and a motion reasonably explaining its untimeliness. More than a month passed without a response.

The Court’s Holding

The court dismissed McCalley’s appeal for want of prosecution under Texas Rules of Appellate Procedure 38.8(a)(1), 42.3(b), and 43.2(f). It reasoned that McCalley had neither filed the required brief nor responded to the court’s warning and opportunity to explain the delay.

The court also ordered McCalley to pay all costs of the appeal.

Key Takeaways

  • An appellant must file a brief as required by the Texas Rules of Appellate Procedure.
  • An appellate court may dismiss an appeal for want of prosecution when the appellant fails to file a brief after receiving notice and an opportunity to respond.
  • McCalley’s failure to respond resulted in dismissal of the appeal and assessment of appellate costs.

Why It Matters

The decision illustrates the procedural consequences of missing an appellate briefing deadline and then failing to respond to the court’s warning. Even without reaching the merits, a Texas appellate court may end an appeal for want of prosecution when the appellant does not take the required steps to move the case forward.

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