Opinion
No. 06-13-00077-CV
2013-09-24
EVELYN MITCHUM, Appellant v. WELLS FARGO MORTGAGE, Appellee
On Appeal from the County Court at Law No. 5
Dallas County, Texas
Trial Court No. CC-13-3197-E
Before Morriss, C.J., Carter and Moseley, JJ.
ORDER
Evelyn Mitchum, acting pro se, filed an appeal June 12, 2013, from a judgment of the Dallas County Court at Law No. 5. Mitchum filed an affidavit of indigence July 1, 2013, with this Court. No clerk's record has been filed in this case. On August 27, 2013, this Court provided the affidavit of indigence to the Dallas County Clerk's Office for filing in accordance with Rule 20.1(d)(2) of the Texas Rules of Appellate Procedure. The letter accompanying the affidavit directed that, in accordance with Rule 20.1(e)(1) of the Texas Rules of Appellate Procedure, any challenge to the affidavit of indigence must be filed on or before September 11, 2013. See TEX. R. APP. P. 20.1(e)(1). No such challenge was filed. The Dallas County Clerk's Office has indicated that no record will be filed in the absence of an order from this Court directing such filing.
An affidavit of indigence must be filed "with or before the notice of appeal." TEX. R. APP. P. 20.1(c)(1). It appears that Mitchum's affidavit is late-filed. However, even though that Rule specifically requires the filing of an indigence affidavit at the time the notice of appeal is filed, the Texas Supreme Court has made it clear that a late-filed indigence affidavit must be considered. See Springer v. Springer, 240 S.W.3d 871 (Tex. 2007) (per curiam); Hood v. Wal-Mart Stores, Inc., 216 S.W.3d 829, 830 (Tex. 2007) (per curiam); Higgins v. Randall Cnty. Sheriff's Office, 193 S.W.3d 898 (Tex. 2006) (per curiam) (allowing party to file affidavit of indigence 133 days after filing of notice of appeal).
This Rule provides:
(2) Appellate Court Clerk. If the affidavit of indigence is filed with the appellate court clerk and if the filing party is requesting the preparation of a record, the appellate court clerk must:
(A) send a copy of the affidavit to the trial court clerk and the appropriate court reporter; and
(B) send to the trial court clerk, the court reporter, and all parties, a notice stating the deadline for filing a contest to the affidavit of indigence.
We hereby order the Dallas County Clerk to file the clerk's record in cause number 06-13-00077-CV, Evelyn Mitchum v. Wells Fargo Mortgage, trial court cause number CC-13-3197-E, to be received by this Court no later than Monday, September 30, 2013.
IT IS SO ORDERED.
BY THE COURT
TEX. R. APP. P. 20.1(d)(2). A copy of the affidavit was also provided to the court reporter and all parties.