Opinion
No. 10-04-00221-CV
Opinion Delivered and Filed April 20, 2005.
Appeal from the 411th District Court, Polk County, Texas, Trial Court # 20318.
Appeal dismissed.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
MEMORANDUM Opinion
Appellant, Kenneth D. Ford, attempts an appeal from an Order to Dismiss dated May 20, 2004, in favor of Appellee, Victor Boston. Ford filed his notice of appeal on June 7, 2004. The Ninth Court of Appeals billed Ford for the $125 filing fee on June 18, 2004. No payment was received, but Ford filed an affidavit of indigency on July 6, 2004. On March 4, 2005, we sent a letter to Ford that his filing fee was past due. On March 18, 2005, Ford filed a second affidavit of indigency with this Court, accompanied by a copy of his trust-fund statement from TDCJ-ID. On March 23, 2005, we sent a letter to Ford stating: "You are notified that this cause is subject to dismissal for failure to pay the filing fee. Therefore, the Court may set aside the submission and dismiss this appeal, unless within fourteen days of the date of this letter, a response is filed showing that a timely filed Affidavit of Indigence is in the record or Appellant pays the filing fee of $125 to the Clerk of this Court. See TEX. R. APP. P. 20.1(c), 42.3(c)." On March 30, 2005, Ford responded with a letter calling attention to his second affidavit of indigency filed on March 18, 2005.
This cause was transferred to the Tenth Court of Appeals and docketed by us on August 30, 2004.
An affidavit of indigence must be filed in the trial court with or before the notice of appeal. TEX. R. APP. P. 20.1(c)(1). The appellate court may grant an extension of time to file the affidavit, if, within 15 days after the deadline for filing the affidavit, a motion for extension is filed. Id. 20.1(c)(3). Ford's notice of appeal was filed on June 7, 2004. Thus, Ford's affidavits filed on July 6, 2004, and March 18, 2005, were not filed "with or before the notice of appeal." Also, we cannot imply a motion to extend time to file the affidavit because neither affidavit was filed within 15 days after the filing of the notice of appeal. Thus, Ford's affidavits of indigence were untimely.
The submission is set aside. We dismiss this appeal for failure to pay the filing fee after the March 23, 2005, notice from the Clerk. See id. 42.3(c); Gordon v. Gordon, No. 10-05-00051-CV (Tex.App.-Waco, March 20, 2005, no pet. h.).
The clerk is authorized to write off the filing fee as uncollectible.