Summary
dismissing for failure to establish indigence under Rule 20.1 and failure to pay filing fee
Summary of this case from Kennedy v. StateOpinion
No. 05-03-00399-CV.
Opinion issued April 14, 2003.
Appeal from the 193rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. DV00-03625-L.
DISMISSED.
Before Justices MORRIS, WHITTINGTON, and FRANCIS.
MEMORANDUM OPINION
A judgment of civil forfeiture was signed in the underlying case on July 30, 2002. The judgment states that Edward Chavarria was served with citation and filed an answer below as a person asserting an ownership interest in the property subject to civil forfeiture. On March 17, 2003, Edward Chavarria filed a document in the trial court entitled "appealing final judgment of forfeiture." This Court received a copy of and filed that document on March 20, 2003. On March 20, 2003, this Court sent Edward Chavarria a letter advising him to pay the $ 125 filing fee for this appeal within ten days of the date of the letter or the case will be dismissed without further notice. Chavarria filed a document entitled "notice of appeal and affidavit of indigency" with this Court on April 4, 2003. The document does not show that it was filed with the trial court on or before March 20, 2003. To be effective, an affidavit of indigence must be filed with the trial court before or with the filing of the notice of appeal. Tex.R.App.P. 20. We conclude Chavarria's affidavit of indigency is ineffective and he remains responsible for payment of the $ 125 filing fee. To date Edward Chavarria has not paid the filing fee of $125.
On March 17, 2003, Edward Chavarria filed, in the trial court, a document entitled "motion for out of time appeal" requesting the judge of the 193rd Judicial District Court grant him an out of time appeal of the judgment signed July 30, 2002. A copy of this motion was filed with this Court on March 20, 2003. On March 24, 2003, this Court sent a letter to Edward Chavarria directing him to file a letter brief explaining how this Court has jurisdiction over this appeal because Chavarria's notice of appeal was filed after the expiration of the time allowed for filing a notice of appeal. Edward Chavarria responded by filing a document entitled "letter brief on jurisdiction" which states that he did not receive notice of the judgment until after the time allowed to make the appeal in this case and following Tx.R.Civ.Proc. 306a makes this showing of actual knowledge and factors beyond his control." In the "letter brief" Chavarria requests the Court "toll"
"this attempt to appeal" and asserts this Court has jurisdiction to ensure "that its authority is not abridged" and "that there be an opportunity to proceed under procedural due process U.S.C.A. Const. amend. 14th usurping of an affected process. This Court has authority in this matter Tex. Gov. Code 21. 001; 22.201 and jurisdiction to the appeal."
To the extent Chavarria is requesting this Court grant him an extension of time to file his notice of appeal under Texas rule of civil procedure 306a, we conclude this Court has no authority to grant relief to Chavarria under rule 306a. Chavarria has not shown that he filed a proper and timely 306a motion with the trial court or the trial court's ruling on any 306a motion. Further, Chavarria's notice of appeal was filed outside the time in which an order granting relief under rule 306a could make Chavarria's notice of appeal timely. We conclude this Court does not have jurisdiction over Chavarria's appeal because his notice of appeal was not timely filed.
Accordingly, we DISMISS this appeal due to want of prosecution for failure to timely pay the $ 125 filing fee and for want of jurisdiction because the notice of appeal was not timely filed.