Opinion
No. 04-13-00597-CV
2013-09-18
Rodney D. LOAR et ux, Appellant v. SIGNATURE RIDGE APARTMENTS, Appellee
From the County Court At Law No. 10, Bexar County, Texas
Trial Court No. 388298
Honorable Irene Rios, Judge Presiding
ORDER
Appellant Ann Loar filed in this court a notice of appeal on September 3, 2013, and an affidavit of indigence on September 16, 2013.
A party who cannot pay the costs of an appeal must file an affidavit of indigence "in the trial court with or before the notice of appeal." TEX. R. APP. P. 20.1(c)(1) (emphasis added). Even if Appellant filed an affidavit of indigence with the trial court before it issued its final judgment, "[a] prior filing of an affidavit of indigence in the trial court pursuant to Texas Rule of Civil Procedure 145 does not meet the requirements of this rule, which requires a separate affidavit and proof of current indigence." See id.
Appellant's affidavit of indigence was due to be filed in the trial court on September 4, 2013, the date the notice of appeal was filed in the trial court, or a motion for extension of time to file the affidavit was due in this court no later than fifteen days later, on September 19, 2013. See id. R. 20.1(c)(1), (3). It is unclear whether Appellant's affidavit of indigence for this appeal was timely filed with the trial court; however, an untimely, uncontested affidavit of indigence can be "adequate to fulfill the fundamental purpose of Rule 20.1." See Higgins v. Randall County Sheriff's Office, 257 S.W.3d 684, 688 (Tex. 2008). Accordingly, the clerk of this court is ORDERED to forward a copy of Appellant's affidavit to the trial court clerk for filing in that court.
This appeal is ABATED, and the trial court clerk, court reporter, or any party may file a contest to the affidavit in the trial court in accordance with Rule 20.1(e) within ten days from the date of this order. See TEX. R. APP. P. 20.1(e) (requiring persons to file any contest to the affidavit "in the court in which the affidavit was filed"). If a contest is timely filed, the trial court is ORDERED to proceed in accordance with Rule 20.1(i). See id. R. 20.1(i).
If no contest is filed or if a contest is overruled, the trial court is ORDERED to determine whether or not the appeal is frivolous in accordance with section 13.003 of the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. § 13.003 (West 2002).
The trial court clerk is ORDERED to file a supplemental clerk's record containing all filings and orders relating to the affidavit of indigence no later than (1) twenty days from the date of this order if no timely contest is filed, or (2) forty-five days from the date of this order if a timely contest to the affidavit is filed. In the event a contest is filed, the court reporter responsible for transcribing the record of the hearing on the contest is ORDERED to file a reporter's record from the hearing no later than forty-five days from the date of this order.
The clerk of this court is ORDERED to send a copy of this order and a copy of the affidavit to the parties, the trial court clerk, the court reporter, and the trial court judge. See TEX. R. APP. P. 20.1(d)(2).
All other appellate deadlines are SUSPENDED pending further order of this court.
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Patricia O. Alvarez, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 18th day of September, 2013.
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Keith E. Hottle
Clerk of Court