Opinion
No. 14-04-00601-CV
Memorandum Opinion filed August 12, 2004.
On Appeal from the 278th District Court, Walker County, Texas, Trial Court Cause No. 22,407.
Dismissed.
Panel consists of Chief Justice HEDGES and Justices FOWLER and SEYMORE.
MEMORANDUM OPINION
This is an appeal from a judgment dismissing appellant's suit signed May 13, 2004. Appellant filed a motion to reinstate, which the trial court denied. Appellant's notice of appeal was filed June 16, 2004. No clerk's record has been filed. The clerk responsible for preparing the record in this appeal informed the court appellant did not make arrangements to pay for the record.
On July 6, 2004, notification was transmitted to all parties of this court's intention to dismiss the appeal for want of prosecution unless, within fifteen days, appellant paid or made arrangements to pay for the record and provided this court with proof of payment. See TEX. R. APP. P. 37.3(b). On July 12, 2004, appellant filed an untimely affidavit of indigence in this court. On July 15, 2004, appellant's affidavit was struck as untimely, and his request for a free record was denied. On July 26, 2004, appellant filed a further response to the court's dismissal notice in which he asserts that he submitted an affidavit of inability to pay costs on June 28, 2004, but it was not forwarded to the district clerk's office by personnel in the mail room at the prison unit where he is incarcerated.
Appellant also complains that the district clerk prematurely filed his "conditional" notice of appeal. The Rules of Appellate Procedure do not provide for the conditional filing of a notice of appeal. The trial court clerk does not have discretion to refuse to forward a notice of appeal to the court of appeals. The filing of a notice of appeal invokes a court of appeals' jurisdiction. TEX. R. APP. P. 25.1(a); In re Washington, 7 S.W.3d 181, 182 (Tex. App.-Houston [1st Dist.] 1999, orig. proceeding). A document is considered filed when delivered to the clerk for filing. Id. Therefore, when a notice of appeal is delivered to the clerk, any further determination concerning appellate jurisdiction must be made by the appellate court. Id.
Texas Rule of Appellate Procedure 20.1(c) provides that "[a]n appellant must file the affidavit of indigence in the trial court with or before the notice of appeal." TEX. R. APP. P. 20.1(c) (emphasis added). Appellant's June 28, 2004 affidavit was prepared and signed after the notice of appeal was filed and was therefore untimely. Accordingly, it is immaterial that the affidavit was not forwarded to the district clerk. Appellant's subsequent affidavit was both untimely and improperly filed in this court.
When a party does not file a timely affidavit of indigence in compliance with Texas Rule of Appellate Procedure 20.1, the party may not proceed without the advance payment of costs. TEX. R. APP. P. 20.1(a). Appellant has not paid for preparation of the clerk's record on appeal. If the clerk's record is not filed because appellant failed to pay or make arrangements to pay the clerk's fee for preparation of the record, we may dismiss the appeal for want of prosecution after giving appellant a reasonable opportunity to cure. See TEX. R. APP. P. 37.3(b). Appellant was afforded over thirty days to arrange to pay the clerk's fee after this court's notice, but to date he has not provided any proof that payment arrangements have been made.
Accordingly, the appeal is ordered dismissed.