Opinion
No. 05-06-00301-CV
Opinion Filed July 28, 2006.
On Appeal from the County Court at Law No. 4, Dallas County, Texas, Trial Court Cause No. cc-04-04861-D.
Dismiss.
Before Chief Justice THOMAS and Justices LANG and MAZZANT.
MEMORANDUM OPINION
This appeal was filed in this Court on March 7, 2006. Appellant has not paid the filing fee, nor have the clerk's and reporter's records been filed. On March 8, 2006, we sent appellant a letter directing him to pay the $125 filing fee within ten days. On March 23, 2006, appellant filed a motion to proceed in forma pauperis in this appeal. The Court denied the motion because the supplemental clerk's record did not show appellant filed the affidavit of indigence with or before his notice of appeal. See Tex.R.App.P. 20.1(c). On April 27, 2006, we denied appellant's motion to reconsider his indigent status.
On May 26, 2006, the Texas Supreme Court issued Higgins v. Randall County Sheriff's Office, 193 S.W.3d 898 (Tex. 2006) (per curiam). In Higgins, the court held that the appeal should not have been dismissed because the affidavit of indigence was untimely. Id. at 898. Rather, the court said that the affidavit of indigence discharged the filing fee requirement unless a contest to it was sustained and Higgins corrected the defect of the untimely affidavit by filing it within the ten-day period set out in the court of appeals's letter directing him to pay the filing fee. See id. The court further held that Higgins should have been given the opportunity to correct any defects in the affidavit itself before the appeal was dismissed. See id.
Appellant's case is distinguishable from Higgins. Appellant's affidavit of indigence was not filed in this Court within the ten-day time period required by our March 8, 2006 letter. And appellant may not claim the benefit of the mailbox rule because he did not mail the affidavit on or before the date it was due. See Tex.R.App.P. 9.2(b)(1)(C). The envelope in which the affidavit was mailed is postmarked March 21, 2006.
Because appellant has not paid the filing fee, we dismiss the appeal. See Tex.R.App.P. 42.3(c).