Opinion
Appellate case number: 01-16-00078-CV
08-05-2016
Celia Johnson v. Carla Casillas
ORDER Trial court case number: 1071118 Trial court: County Civil Court at Law No. 3 of Harris County
This case was dismissed based on appellant's failure to pay the filing fee and for the clerk's record. On July 27, 2016, appellant filed a motion for rehearing and a motion to review the trial court's order sustaining the contest to her affidavit of indigence.
Appellant filed her affidavit of indigence in this Court and we forwarded it to the trial court. The Harris County Clerk filed a contest to the affidavit, asserting that the affidavit did not comply with Rule 20.1. The trial court held a hearing, but appellant failed to appear, and the trial courts signed an order sustaining the contest.
Rule 20.1(j) allows a party to seek review of the trial court's order on indigence by filing a motion in the appellate court challenging the order "within 10 days after the order sustaining the contest is signed, or within 10 days after the notice of appeal is filed, whichever is later." TEX. R. APP. P. 20.1(j)(1)-(2). If the party files a motion for extension complying with Rule 10.5(b), we may grant an extension. See id. at 20.1(j)(2), 10.5(b). Within 3 days after this motion is filed, the trial court clerk and court reporter must file the clerk's and reporter's record of the indigence hearing, if any, and of any hearing on the contest. See id. at 20.1(j)(3). If the appellate court does not deny the motion within 10 days, the motion is granted by operation of law. See id. at 20.1(j)(4).
The clerk's record regarding indigence was filed on July 18, 2016, which is timely under Rule 20.1(j)((3). The clerk's record contains no notice of appeal of the indigence order. --------
The order sustaining the contest was signed on July 13, 2016. Thus, any motion contesting this order, had to be filed within 10 days, or by Monday, July 25, 2016. Appellant filed her motion challenging the trial court's order over the counter on Wednesday, July 27, 2016, which is more than 10 days after the order was signed. No motion for extension has been filed. Thus, the motion was not timely filed. See id. at 20.1(j). Accordingly, we DENY appellant's motion for review of the trial court's order sustaining the contest to her affidavit of indigence.
Because we deny this motion and the trial court sustained the contest to her affidavit of indigence, appellant is responsible for payment of the filing fee and for the clerk's record. See TEX. R. APP. P. 5 (unless excused from paying, a party must pay whatever fees are required by statute or Supreme Court order), 37.3(b) (appellate court must give appellant reasonable opportunity to cure failure to pay). Appellant may cure the deficiency in paying for the filing fee and the clerk's record by providing proof of payment on or before August 19, 2016.
It is so ORDERED. Judge's signature: /s/ Harvey Brown
[v] Acting individually [ ] Acting for the Court Date: August 5, 2016