Opinion
No. 14-06-00163-CV
Opinion filed January 11, 2007.
On Appeal from the County Civil Court at Law No. 1 Harris County, Texas Trial Court Cause No. 827,447.
Panel consists of Chief Justice HEDGES and Justices FOWLER and EDELMAN.
MEMORANDUM OPINION
This is an appeal from a judgment signed January 6, 2006. Appellant filed a notice of appeal on February 5, 2006. Appellant did not pay the appellate filing fee of $125.00. See TEX. R. APP. P. 5. On February 28, 2006, the court notified appellant that the filing fee was due. The clerk's record was due March 7, 2006, but was not filed.
On March 13, 2006, appellant filed a motion to proceed in forma pauperis in this court. Because appellant's motion failed to comply with Texas Rule of Appellate Procedure 20.1, this court initially denied appellant's motion to proceed in forma pauperis. We then ordered appellant to pay the appellate filing fee in the amount of $125.00 and to provide this court with proof of payment for preparation of the clerk's record on or before April 14, 2006. Our order advised that failure to comply could result in dismissal of the appeal. See TEX. R. APP. P. 42.3(c). Appellant did not comply with our order. Accordingly, by opinion and judgment issued May 4, 2006, the appeal was ordered dismissed.
On May 24, 2006, appellant submitted an untimely motion to reconsider our ruling and reinstate her appeal. See TEX. R. APP. P. 49.1 (requiring a motion for rehearing to be filed within 15 days of the court's judgment). On May 26, 2006, the Texas Supreme Court issued its opinion in Higgins v. Randall County Sheriff's Office, 193 S.W.3d 898 (Tex. 2006). In Higgins, the court held that a court of appeals may dismiss an appeal only after allowing a reasonable time to correct any formal defect or irregularity in appellate procedure, including a defective or untimely affidavit of indigence. Id. at 899. The court held that filing an affidavit of indigence after notice of non-payment of the appellate filing fee corrected the defect, and the court of appeals had dismissed the appeal in error. Id. at 900.
Accordingly, on the court's own motion, we ordered our opinion and judgment of May 4, 2006, withdrawn and the appeal reinstated. Appellant's motion to proceed in forma pauperis filed in this court on March 13, 2006 was defective because it was not originally signed or notarized and did not contain the contents required by Texas Rule of Appellate Procedure 20.1. Therefore, we granted appellant a reasonable time to correct the defects and ordered her to file a corrected affidavit. See Higgins, 193 S.W.3d at 899; TEX. R. APP. P. 9.4.(i); 44.3.
On July 14, 2006, appellant filed a motion for clarification of our order. Accordingly, by order filed August 31, 2006, we issued the following clarification.
Texas Rule of Appellate Procedure 20 governs the procedures to be followed in order to appeal without the advance payment of costs. Rule 20.1(a) requires an affidavit of indigence be filed in the trial court with or before the filing of the notice of appeal. TEX. R. APP. P. 20.1(c). The trial court clerk must promptly send a copy of the affidavit to the appropriate court reporter, if any. TEX. R. APP. P. 20.1(d). The clerk, court reporter, or any party may challenge the affidavit by filing a contest within ten days after the affidavit is filed in the trial court. TEX. R. APP. P. 20.1(e).
Rule 20.1(b) prescribes the contents of the affidavit of indigence as follows:
(b) Contents of Affidavit. The affidavit of indigence must identify the party filing the affidavit and must state what amount of costs, if any, the party can pay. The affidavit must also contain complete information about:
(1) the nature and amount of the party's current employment income, government-entitlement income, and other income;
(2) the income of the party's spouse and whether that income is available to the party;
(3) real and personal property the party owns;
(4) cash the party holds and amounts on deposit that the party may withdraw;
(5) the party's other assets;
(6) the number and relationship to the party of any dependents;
(7) the nature and amount of the party's debts;
(8) the nature and amount of the party's monthly expenses;
(9) the party's ability to obtain a loan for court costs;
(10) whether an attorney is providing free legal services to the party without a contingent fee; and
(11) whether an attorney has agreed to pay or advance court costs.
Even if a party proceeded as a pauper in the trial court, a new affidavit of indigence must be filed in the trial court after judgment for purposes of appeal. Holt v. F.F. Enterprises, 990 S.W.2d 756, 758 (Tex.App.CAmarillo 1998, pet. denied). A free record will be provided on appeal only if an affidavit of inability to pay the cost of the appeal is filed under Texas Rule of Appellate Procedure 20 and the trial court finds the appeal is not frivolous and the record is necessary to decide the appeal. TEX. CIV. PRAC. REM. CODE ANN. ' 13.003(a). The party may then proceed without advance payment of costs if no contest is filed or the contest is not sustained by a written order. TEX. R. APP. P. 20.1(a).
Appellant then filed a corrected affidavit in the trial court and the county filed a contest to the affidavit. The trial court conducted a hearing on the contest to appellant's amended affidavit of indigence, and on November 29, 2006, signed an order sustaining the contest. Appellant has not appealed the denial of her indigence claim. Accordingly, we ordered appellant to pay the appellate filing fee and provide this court with proof of payment for preparation of the clerk's record. Our order advised appellant that failure to comply would result in dismissal of the appeal. See TEX. R. APP. P. 42.3(c). Appellant has not complied with our order or filed any other response.
Accordingly, the appeal is ordered dismissed.