Opinion
No. 05-02-01682-CV
January 7, 2003
On Appeal from the County Court at Law No. 3, Dallas County, Texas, Trial Court Cause No. 02-7301-C
Before Justices WHITTINGTON, RICHTER, and FRANCIS
MEMORANDUM OPINION
The Court's records in this appeal reveal that appellant has not paid the required filing fee of $125. See Tex.R.App.P. 5. By notice dated October 25, 2002, appellant was informed that failure to remit the filing fee within ten days could result in the dismissal of his appeal. Thereafter, by notice dated November 19, 2002, appellant was informed that failure to remit the filing fee within ten days would result in dismissal of his appeal without further notice. Also, in a letter dated November 21, 2002, the Court instructed appellant to file a docketing statement, a response regarding the timeliness of his appeal, a certified copy of the motion for new trial, and reminded him to remit the $125 filing fee.
Appellant filed a November 26, 2002 response to the Court's November 21, 2002 letter. He included a docketing statement, a satisfactory response to the timeliness issue, and an "appellant's affidavit of indigence" that bears a November 5, 2002 file mark of the county court at law. Appellant stated in his response, "You have asked that the $125 filing fee be tendered within 10 days of your letter. I filed an Affidavit of Indigency with your Court Nov. 5, which, unless contested, waives court costs."
By his November 26, 2002 response, appellant asserts that his affidavit of indigence was timely and that he is proceeding as an indigent. However, appellant is incorrect about the filing requirements for an affidavit of indigence. The notice of appeal was filed in this case on October 25, 2002; appellant's affidavit of indigence was filed 11 days after the notice of appeal was filed. "An appellant must file the affidavit of indigence in the trial court with or before the notice of appeal." Tex.R.App.P. 20.1(c). Accordingly, in a letter dated November 27, 2002, the Court informed appellant that based on the record in this appeal, appellant is not proceeding as an indigent and is responsible for remitting the $125 filing fee to the Court.
In the same letter, the Court noted that appellant indicates that a contest to his indigence was overruled on September 9, 2002. However, no such order overruling a contest to indigence has been filed with this Court. The Court instructed appellant to file a copy of the trial court's order overruling the contest or to remit the $125 filing fee within ten days. Appellant was advised that, "Failure to file the trial court's order overruling contest or the $125 filing fee will result in the dismissal of this appeal for want of prosecution without further notice from the Court."
Appellant responded with a copy of his affidavit of indigence filed with the justice of the peace court on May 28, 2002. An affidavit filed with the justice of the peace court is not relevant to the determination of the appellant's ability to pay the costs and fees of the appeal stemming from the county court at law's final judgment. Under appellate rule 20.1(e), the county clerk and the court reporter or any party may challenge appellant's claim of inability to pay appellate costs. See Tex.R.App.P. 20.1. An affidavit filed with the justice of the peace court, two months before the judgment on appeal does not pertain to appellant's ability to pay costs at the time of the appeal. If appellant is unable to pay costs of appeal, a new affidavit of indigence for appellate costs must be filed in the trial court after judgment, regardless of whether appellant filed an affidavit previously in the trial court. See Holt v. F. F. Enterprises 990 S.W.2d 756 (Tex.App.-Amarillo 1998, pet. denied).
Appellant has failed to comply with the Court's directive to either file a "certified copy of the trial court's order overruling the contest" or "remit the $125 filing fee." Accordingly, on the Court's own motion, this appeal is DISMISSED for want of prosecution. See Tex.R.App.P. 42.3(b),(c).