Opinion
No. 11-08-00123-CV
Opinion filed June 12, 2008.
On Appeal from the County Court at Law No. 2 Midland County, Texas, Trial Court Cause No. CC 14303.
Panel consists of: WRIGHT, C.J., McCALL, J., and STRANGE, J.
MEMORANDUM OPINION
The trial court entered an order sustaining a contest to Carol Johnene Morris's affidavit of inability to pay costs. From that order, Morris filed this pro se appeal complaining of the trial court's denial of her right to proceed in forma pauperis on appeal. We vacate the order and dismiss the appeal.
On May 12, 2008, this court notified the parties that, upon review of the clerk's record, it appeared that the contest was untimely and that the appeal was moot. Pursuant to TEX. R. APP. P. 42.3, we requested the parties to respond showing grounds to continue the appeal and showing why the appeal is not moot. We have not received any response indicating that this appeal is not moot or that the contest was timely.
Carol Johnene Morris has filed three pro se appeals stemming from the trial court's Cause No. CC 14303. The first, our Cause No. 11-07-00368-CV, was an attempted appeal from an order denying a motion to recuse. We dismissed that cause for want of jurisdiction on January 10, 2008, and we no longer possess plenary power over that appeal. See TEX. R. APP. P. 19.1. Then, on February 19, 2008, Morris filed an appeal from an order rescinding a prior order granting an extension of time. Third, on February 27, 2008, Morris filed the appeal at issue in this opinion, our Cause No. 11-08-00123-CV, which is an appeal from the trial court's February 21, 2008 order sustaining a contest to Morris's affidavit of inability to pay costs on appeal.
We note that the second attempted appeal, our Cause No. 11-08-00122-CV, was dismissed for want of jurisdiction on May 22, 2008.
After reviewing the clerk's record filed in this court regarding the indigency contest, we have concluded that the contest was untimely. The affidavit of indigency contained in the clerk's record in Cause No. 11-08-00123-CV is Morris's affidavit of indigency filed in regard to her appeal from the denial of her motion to recuse, our Cause No. 11-07-00368-CV. The affidavit was filed December 17, 2007, and the court reporter's contest was not filed until February 12, 2008, after this court had dismissed the appeal in Cause No. 11-07-00368-CV for want of jurisdiction. The trial court nonetheless held a hearing on the contest on February 19, 2008, and subsequently entered an order sustaining the contest.
Because the contest was not timely under TEX. R. APP. P. 20.1(e), the trial court should not have held the hearing or sustained the contest. TEX. R. APP. P. 20.1(f). Pursuant to Rule 20.1(f), when a contest is not timely filed, the allegations in the affidavit of indigency are deemed true, and the party will be allowed to proceed without advance payment of costs. Our records reveal that Morris was not required to pay costs in the appeal from the denial of the motion to recuse — our Cause No. 11-07-00368-CV. Because Morris was allowed to proceed in forma pauperis in the appeal for which the contest was belatedly sustained, her appeal relating to that contest is moot.
We express no opinion as to the merits of the contest, and we note that the contest and affidavit of indigency addressed in this opinion relate only to the appeal of the denial of the motion to recuse B Cause No. 11-07-00368-CV.
The trial court's February 21, 2008 order sustaining the indigency contest is vacated, and this appeal is dismissed as moot.