Opinion
No. 04-15-00716-CV
01-07-2016
Clark A. TCHERNOWITZ, Appellant v. GARDENS AT CLEARWATER, Appellee
From the County Court at Law, Kerr County, Texas
Trial Court No. 15542C
Honorable Susan Harris, Judge Presiding
ORDER
The notice of appeal filed by appellant on November 16, 2015, will be liberally construed to be a good faith attempt to invoke the jurisdiction of this Court to appeal the trial court's judgment rendered November 5, 2015. See Verburgt v. Dorner, 959 S.W.2d 615, 616 (Tex. 1997).
On November 30, 2015, appellant filed a letter with this Court requesting indigent status. However, this letter does not comply with the Texas Rules of Appellate Procedure to establish an inability to proceed without payment of costs. See TEX. R. APP. P. 20.1
Appellant did not include with the letter an affidavit of indigence. 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 of indigence was, therefore, due to be filed in the trial court on or before November 5, 2015, the date his notice of appeal was filed.
Although appellant did not file the affidavit in the trial court or a motion to extension of time to file the affidavit before he filed the notice of appeal, we will construe his letter as such. See Higgins v. Randall Cty. Sheriff's Off., 257 S.W.3d 684 (Tex. 2008)(an untimely affidavit of indigence can be "adequate to fulfill the fundamental purpose of Rule 20.1); TEX. R. APP. P. 20.1(c)(1),(3). Accordingly, appellant's motion for extension of time to file an affidavit of indigence in the trial court is GRANTED and appellant's letter will constitute his affidavit of indigence.
The clerk of court is ordered to send copies of the letter and this order to the trial court clerk, the court reporter, and all parties. TEX. R. APP. P. 20.1(d)(2).
We further ORDER the deadline to file any contest to the affidavit of indigence to be filed within 10 days of the date this order is mailed. Any contest must be filed in this court. TEX. R. APP. P. 20.1(e)(1).
/s/_________
Jason Pulliam, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 7th day of January, 2016.
/s/_________
Keith E. Hottle
Clerk of Court