Opinion
No. 04-15-00329-CV
06-10-2015
Michael E. GEIGER, Appellant v. Paul A. HAMPEL, Appellee
From the 407th Judicial District Court, Bexar County, Texas
Trial Court No. 2013-CI-13615
Honorable Renee Yanta, Judge Presiding
ORDER
On June 1, 2015, appellant filed a notice of appeal, which stated appellant is appealing from the trial court's April 13, 2015 judgment. On June 1, 2015, appellant also filed an affidavit of inability to pay costs in this court. It appears appellant did not file his affidavit in the trial court.
We note that on May 28, 2015, the district clerk filed a notification of late record in this court in which the clerk stated: "The prose [sic] is appealing the Judge's notes from May 11, 2015, which is not an ORDER, therefore a Clerk's Record will not be prepared." First, we note that appellant's notice of appeal specifically states he is appealing from a judgment signed April 13, 2015. Second, and more importantly, it is not for the district clerk to determine whether an appeal may be prosecuted or whether this court has jurisdiction over any particular appeal; rather, that is within the province of the appellate court." We shall, at the appropriate time, determine whether appellant may prosecute the appeal. Accordingly, the notification of late record filed May 28, 2015, is DENIED AS MOOT.
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 June 1, 2015, the date his notice of appeal was filed, or a motion for extension of time to file the affidavit was due in this court on or before June 16, 2015. See id. R. 20.1(c)(1), (3).
We construe the affidavit filed in this court on June 1, 2015, as a motion for extension of time to file the affidavit in the trial court. The affidavit was filed within the fifteen-day deadline set forth in rule 20.1(3). See id. R. 20.1(c)(3). Accordingly, we GRANT the motion to extend time to file an affidavit of inability to pay costs.
We further ORDER that any contest to the affidavit of indigence must be filed in this court on or before June 22, 2015. If no contest is timely filed, appellant will be deemed indigent and entitled to a clerk's record and reporter's record without cost.
We ORDER the clerk of this court to send copies of the affidavit and this order to appellant, appellee, all counsel (if any), the district clerk, the court reporter, and the trial court judge. See id. R. 20.1(d)(2). All other appellate deadlines are suspended until further order of this court.
/s/_________
Marialyn Barnard, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 10th day of June, 2015.
/s/_________
Keith E. Hottle
Clerk of Court