Opinion
No. 11-05-00143-CV
July 21, 2005.
Appeal from Midland County.
Panel consists of: ARNOT, C.J., and WRIGHT, J., and McCALL, J.
ORDER
At this time, the issue before this court is whether the appellant in this appeal has established that he is entitled to proceed without the advanced payment of costs under the Texas Rules of Appellate Procedure. Pursuant to TEX.R.APP.P. 20.1, Leslie Garnett is entitled to proceed without the advance payment of costs.
The trial court signed the judgment on March 23, 2005. On April 15, 2005, Garnett filed his notice of appeal, two affidavits of inability to pay costs on appeal, and a motion for new trial. All of these documents were filed with the clerk of the trial court.
On May 18, 2005, the trial court held a hearing on Garnett's motion for new trial and amended motion for new trial and on what appeared to the trial court to be a request by Garnett to proceed in forma pauperis. In open court, the trial court overruled the motion for new trial and denied the request. The trial court signed a written order on May 18, 2005, denying Garnett's request to proceed without advance payment in the appeal process. The trial court correctly directed that the reporter's record from the May 18 hearing be filed in this court pursuant to Rule 20.1(j).
The Texas Rules of Appellate Procedure control how a party in a civil appeal establishes indigency and how that declaration of indigency is contested. The requirements of Rule 20.1 are not only highly technical but also mandatory.
Rule 20.1(c) provides that the affidavit of inability to pay costs for an appeal must be filed in the trial court either before or at the same time as the notice of appeal. After the timely filing of a proper affidavit, appellant will proceed without paying costs on appeal unless a contest is filed within ten days of the filing of the affidavit, a hearing is timely set, and a written order sustaining the contest is timely signed. Rule 20.1(a), (e), (f), (i).
In the present case, Garnett timely filed an affidavit of inability to pay on April 15 at the same time that he filed his notice of appeal. A contest was not filed as required by Rule 20.1(e). A hearing was not set within the time limits of Rule 20.1(i)(1) (2), and a written order extending the time for conducting the hearing was not entered as required by Rule 20.1(i)(3). A written order ruling on the issue of indigency was not entered within the time prescribed under Rule 20.1(i)(4).
Under Rule 20.1(f), the allegations in Garnett's affidavit are "deemed true," and Garnett is "allowed to proceed without advance payment of costs" because a contest was not filed. Therefore, the clerk's record and the reporter's record are now due to be filed in this court on or before September 19, 2005, provided Garnett files the proper designations pursuant to TEX.R.APP.P. 34.5 and 34.6.