What notice must courts give before dismissing an appeal for missing or defective briefs?
This question has been addressed in 2 Texas court opinions:
Brown v. State
COA03 — February 23, 2026
In Brown v. State, the Third Court of Appeals addressed a situation where an appellant's counsel failed to file a brief despite receiving multiple extensions and a final warning. The court analyzed Texas Rule of Appellate Procedure 38.8(b), which protects appellants in criminal and quasi-criminal matters from losing their appeal due to attorney negligence. Because appellate courts cannot make factual findings regarding attorney-client communications, the court held that the appeal must be abated and remanded to the trial court for an evidentiary hearing to determine if the appellant still intends to prosecute the appeal or if counsel has abandoned the case.
Litigation Takeaway
“In parental termination or enforcement cases, do not expect an immediate 'default win' if the opposing party fails to file their brief; due process requirements will likely trigger a remand hearing that delays finality but offers a strategic chance to force a dilatory opponent to commit to the appeal or face dismissal.”
In The Interest of S.A.M. and C.J.M., Children
COA05 — February 17, 2026
In a child custody appeal, the Fifth District Court of Appeals dismissed the case after the appellant failed to comply with mandatory privacy and briefing rules. The court initially struck the appellant's brief because it contained 'sensitive data'—specifically the full names and birthdates of minor children—in violation of Texas Rule of Appellate Procedure 9.9. Although the court granted the appellant a deadline to file a corrected, redacted brief, the appellant failed to respond or cure the defects. The court held that under Rule 38.9(a), dismissal was the proper sanction, emphasizing that protecting a minor's identity is a jurisdictional necessity that outweighs the court's usual patience for procedural errors.
Litigation Takeaway
“Protecting the privacy of children is a non-negotiable requirement in Texas family law appeals. Failing to redact sensitive information or ignoring a court's order to fix briefing errors can result in your appeal being dismissed before its merits are ever even considered.”