Opinion
No. 10-05-00235-CV
Opinion Delivered and Filed June 8, 2005.
Appeal from the 87th District Court, Freestone County, Texas, Trial Court No. 05-113-B.
Appeal dismissed.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
MEMORANDUM OPINION
This appeal suffers from the following problems:
1. The filing fee has not been paid. See TEX. R. APP. P. 12.1(b); Appendix to TEX. R. APP. P., Order Regarding Fees (July 21, 1998). See also TEX. R. APP. P. 5; 10TH TEX. APP. (WACO) LOC. R. 6; TEX. GOV'T CODE ANN. §§ 51.207(b) and 51.901 (Vernon Supp. 2004-2005).
2. No affidavit of indigence was filed in the appellate court. TEX. R. APP. P. 20.1(c)(1); Gordon v. Gordon, No. 10-05-00051-CV, 2005 Tex. App. LEXIS 2576 (Tex.App.-Waco March 30, 2005, no pet.).
3. The notice of appeal has not been served on Paula Harvey, the appellee. TEX. R. APP. P. 25.1(e).
4. Michael Harvey, the appellant, is in prison and filed for divorce in the county where he was incarcerated without expressing any intent to reside in that county after being released. Gonzales v. Gonzales, No. 12-03-00225-CV, 2003 Tex. App. LEXIS 10774 (Tex.App.-Tyler Dec. 23, 2003, no pet.).
We could wrestle with this appeal for 6 to 9 months before we dismiss it under item 1, 2, or 3, above or affirm it under item 4, above. Or, Michael could accept our dismissal of this appeal, and the dismissal of his case by the trial court, both without prejudice to his right to re-file for divorce in a proper county, which appears to be Wichita County, in which Paula currently resides. For the purpose of expediting the disposition of this appeal, we suspend operation of the Rules of Appellate Procedure under Rule 2 of those rules and order this case dismissed without prejudice. See TEX. R. APP. P. 2.
Absent a specific exemption, the Clerk of the Court must collect filing fees at the time a document is presented for filing. TEX. R. APP. P. 12.1(b); Appendix to Tex.R.App.P., Order Regarding Fees (July 21, 1998). See also TEX. R. APP. P. 5; 10TH TEX. APP. (WACO) LOC. R. 6; TEX. GOV'T CODE ANN. §§ 51.207(b) and 51.901 (Vernon Supp. 2004-2005). Under these circumstances, we suspend the rule and order the Clerk to write off all unpaid filing fees in this case. TEX. R. APP. P. 2.