Opinion
No. 04-13-00547-CV
11-19-2013
Rosemarie F. O'KEEFE and Thomas Revard Thiel, Appellants v. Mary Martha Meek MCNELIS and Sean Brandon McNelis, Appellees
From the 225th Judicial District Court, Bexar County, Texas
Trial Court No. 2013-CI-02904
Honorable Barbara Hanson Nellermoe, Judge Presiding
ORDER
The clerk's record and reporter's record were due on October 7, 2013. The trial court clerk has filed a notice of late record, stating that the fee for preparation of the clerks' record has not been paid and appellants are not entitled to appeal without paying the clerk's fee. The court reporter has filed a letter stating that the reporter's record has not been requested by appellants. Appellants, who are proceeding pro se, have filed a sworn application to proceed in forma pauperis which meets the requirements of Rule 20.1 of the Texas Rules of Appellate Procedure relating to affidavits of indigence. TEX. R. APP. P. 20.1(b).
Accordingly, we ABATE this appeal and REMAND the cause to the trial court to provide the opportunity for a contest to be filed against the appellants' affidavit of indigence. See Higgins v. Randall County Sheriff's Office, 257 S.W.3d 684 (Tex. 2008).
It is ORDERED that pursuant to Texas Rule of Appellate Procedure 20.1(e), the trial court clerk, the court reporter, or any party to this cause may challenge appellants' claim of indigence by filing a contest to appellants' affidavit of indigence in the trial court within 10 days from the date of this order. See TEX. R. APP. P. 20.1(e).
If a contest is timely filed within 10 days from the date of this order, the trial court must conduct a hearing on the contest, or sign an order extending the time to conduct a hearing, within 10 days after the date any contest is filed. See TEX. R. APP. P. 20.1(i)(2)(B); see also TEX. R. APP. P. 20.1(i)(3) (trial court may not extend the time for conducting a hearing on a contest for more than 20 days from the date the order is signed). At the conclusion of the hearing, the trial court is ORDERED to prepare a written order and written findings of fact and conclusions of law regarding its determination of appellants' indigence. It is FURTHER ORDERED that within 60 days from the date of this order, the trial court clerk must file a supplemental clerk's record containing (1) the contest; (2) the trial court's order; (3) the trial court's findings of fact and conclusions of law; (4) the judgment being appealed; (5) any post-judgment motions; (6) the notice of appeal; and (7) the court's docket sheet. In addition, the court reporter is also ORDERED to file a reporter's record of the contest hearing within 60 days from the date of this order.
If no contest is filed, or a contest is untimely filed, the trial court clerk is ORDERED to file a supplemental clerk's record containing a certificate that states either that no contest was filed, or that a contest was untimely filed, within 20 days from the date of this order.
The clerk of this court is instructed to forward a copy of appellants' affidavit of indigence and a copy of this order to the trial court clerk, the court reporter, and all parties. All appellate deadlines are SUSPENDED pending further order from this court.
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Rebeca C. Martinez, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 19th day of November, 2013.
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Keith E. Hottle
Clerk of Court