Opinion
No. 05-11-00627-CV
02-14-2012
CHASTITY KIRVEN, Appellant v. RASHAUNDA HAMILTON, Appellee
Appellant's motion granted; Opinion Filed February 14, 2012.
On Appeal from the 330th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DF-10-14765-Y
MEMORANDUM OPINION ON MOTION TO REVIEW THE
TRIAL COURT'S ORDER SUSTAINING CONTEST TO
AFFIDAVIT OF INDIGENCE
Before Chief Justice Wright and Justices Francis and Lang-Miers
Opinion By Justice Lang-Miers
Before the Court is Chastity Kirven's motion to review the trial court's order sustaining the contest to her affidavit of indigence. See Tex. R. App. P. 20.1. Appellee Rashaunda Hamilton has not filed a response. Because the trial court ruled on the contest outside the permissible time period, we grant the motion and reverse the order.
A party unable to pay appellate court costs may proceed without advance payment of costs by filing in the trial court an affidavit of indigence detailing such information as the party's income, assets, debts, monthly expenses, and ability to obtain a loan for court costs. See id. 20.1(a)(2),(b). The clerk, court reporter, or any party may challenge the affidavit by filing a contest within ten days of the filing of the affidavit. Id. 20.1(e). If a contest is filed, the trial court has ten days from the filing of the contest to sign an order either sustaining the contest or extending the time for hearing it. Id. 20.1(i)(2),(4); In re G.C., 22 S.W.3d 932, 932-33 (Tex. 2000) (per curiam). If the trial court fails to do either within the ten day period, the allegations in the affidavit are deemed true, and the party is allowed to proceed on appeal without prepayment of costs. See Tex. R. App. P. 20.1(i)(4); G.C., 22 S.W.3d at 933.
We review a trial court's order sustaining a contest to an affidavit of indigence for abuse of discretion. Basaldua v. Hadden, 298 S.W.3d 238, 241 (Tex. App.-San Antonio 2009, no pet.) (per curiam). We will conclude the trial court abused its discretion if it acted without reference to any guiding rules or principles or in an arbitrary and unreasonable manner. Id.
The record before us reflects Kirven filed her affidavit on May 23, 2011. The trial court clerk timely filed his contest that same day, giving the trial court until June 2, 2011 to sign an order either sustaining the contest or extending the time for hearing the contest. See Tex. R. App. P. 20.1(i)(2). The trial court, however, did not hold a hearing until June 13, 2011, and the record before us does not contain an order extending the time for the hearing or otherwise reflect such an order was signed. Without an order extending the time, the order was untimely. See G.C., 22 S.W.3d at 933. Because the court failed to timely rule on the contest, we conclude the court abused its discretion in sustaining the contest. The allegations in Kirven's affidavit are deemed true, and Kirven is allowed to proceed without prepayment of costs. Tex. R. App. P. 20.1(i)(4); G.C., 22 S.W.3d at 933. We grant Kirven's motion and reverse the trial court's order sustaining the contest.
ELIZABETH LANG-MIERS
JUSTICE