Opinion
No. 04-14-00265-CV
05-13-2014
John DONOHUE, Appellant v. Martha DONOHUE, Appellee
From the 288th Judicial District Court, Bexar County, Texas
Trial Court No. 2012CI19573
Honorable David A. Canales, Judge Presiding
ORDER
On April 21, 2014, appellant filed a notice of appeal from the trial court's October 8, 2013 judgment. On May 13, 2014, appellant filed an affidavit of inability to pay costs in this court. It appears appellant did not file his affidavit in the trial court.
A motion to extension of time to file the notice of appeal is pending. This court is waiting for the clerk's record to be filed prior to ruling on the extension.
A party who cannot pay the costs of an appeal must file an affidavit of indigence "in the trial court with or before the notice of appeal." TEX. R. APP. P. 20.1(c)(1). Appellant's affidavit was therefore due in the trial court on April 21, 2014, the date his notice of appeal was filed, or a motion for extension of time to file the affidavit was due in this court fifteen days later, on May 6, 2014. See TEX. R. APP. P. 20.1(c)(1), (3).
We construe the affidavit filed in this court as a motion for extension of time to file the affidavit in the trial court. Although the affidavit was filed outside the fifteen-day deadline set forth in Rule 20.1(3), an untimely affidavit of indigence can be "adequate to fulfill the fundamental purpose of Rule 20.1." Higgins v. Randall County Sheriff's Office, 257 S.W.3d 684 (Tex. 2008). Accordingly, we GRANT the motion to extend time to file an affidavit of inability to pay costs.
We ORDER the clerk of this court to send copies of the affidavit and this order to the district clerk, the court reporter, and all parties. See TEX. R. APP. P. 20.1(d)(2).
We further ORDER the deadline for filing a contest to the affidavit of indigence is May 23, 2014. Any contest must be filed in this court. See TEX. R. APP. P. 20.1(e)(1).
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Marialyn Barnard, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 13th day of May, 2014.
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Keith E. Hottle
Clerk of Court