Opinion
Appellate case number: 01-19-00560-CV
04-14-2020
Felipe Guzman Garcia v. Silvia Perales Diaz a/k/a Silvia Perales
ORDER Trial court case number: 2017-39265 Trial court: 312th District Court of Harris County
Appellant is appealing from an order signed April 26, 2019 in a suit affecting the parent-child relationship. Motion for new trial was filed on May 28, 2019 and notice of appeal was filed on July 24, 2019. The clerk's record was filed on December 6, 2019. Appellant also filed his statement of inability in this Court. This Court forwarded appellant's statement to the trial court. At the time appellant filed his statement of inability, he was represented by retained counsel.
If a party sought to avoid payment of court costs in the trial court, filed a statement of inability there, and the trial court did not overrule that claim of inability by written order, the appellant's status of indigence would carry forward to the appellate court. See TEX. R. APP. P. 20.1(b)(1). Here, however, appellant has retained counsel and did not claim an inability to afford court costs until he filed an appeal, and therefore, it is unclear whether the trial court considered this statement. This situation appears to fit more reasonably under Subsection (b)(3) concerning a change in circumstances. See TEX. R. APP. P. 20.1(b)(3). Under this subsection, if appellant's circumstances have changed, either this Court may decide whether he is entitled to proceed without paying costs or we may refer it to the trial court to hear evidence and make findings. See TEX. R. APP. P. 20.1(b)(3)(B).
Accordingly, we abate the appeal and remand to the trial court to hold an evidentiary hearing concerning appellant's statement of inability and to prepare findings of fact and conclusions of law concerning whether appellant is able to afford costs on appeal. See id. A supplemental clerk's record shall be filed on or before May 11, 2020, containing the trial court's findings and conclusions and any order concerning appellant's ability to pay costs on appeal. A reporter's record of the hearing shall also be filed in this Court on or before May 11, 2020.
The appeal is abated, treated as a closed case, and removed from this Court's active docket. The appeal will be reinstated on this Court's active docket when a supplemental clerk's record that complies with this order, and the reporter's record of the hearing, have been filed in this Court. The trial court coordinator shall set a hearing date and notify the parties and the Clerk of this Court of such date. Judge's signature: /s/ Peter Kelly
[v] Acting individually [ ] Acting for the Court Date: April 14, 2020