Opinion
No. 04-16-00194-CV
05-04-2016
Jose PEREZ, Jr., Appellant v. Salud CAZARES, Appellee
From the 83rd Judicial District Court, Val Verde County, Texas
Trial Court No. 3287CCL
Robert Cadena, Judge Presiding
ORDER
The district clerk of Val Verde County responsible for preparing the clerk's record in this appeal filed a notification of late record stating the clerk's record had not been filed because appellant had failed to pay or make arrangements to pay clerk's fee to prepare the record and appellant is not entitled to the clerk's record without paying the fee. Subsequently, the court reporter responsible for preparing the reporter's record in this appeal filed a notification of late record stating the reporter's record had not been filed because appellant had failed to pay or make arrangements to pay the reporter's fee for preparing the record and that appellant is not entitled to appeal without paying the fee. Appellant was ordered to file written proof in this court that either (1) the fees had been paid or arrangements had been made to pay the fees; or (2) appellant is entitled to appeal without paying the fees. Thereafter, the district clerk forwarded a copy of appellant's "Motion for Trial Court to Have the Appellates [sic] Record Furnished Without Charge," indicating appellant filed an affidavit of indigency in the trial court. Appellate also filed "Motion Requesting the Court to Waive the Filing Fee," with a copy of the same affidavit of indigency in this court.
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). It does not appear that appellant timely filed an affidavit of indigence with the trial court; however, an untimely, uncontested affidavit of indigence can be "adequate to fulfill the fundamental purpose of Rule 20.1." Higgins v. Randall County Sheriff's Office, 257 S.W.3d 684, 688 (Tex. 2008).
The trial court clerk, court reporter, or any party can file a contest to the affidavit with this 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). If no contest is filed, the affidavit's allegations will be deemed true and the clerk's record and reporter's record will be due thirty days from the date of this order. See TEX. R. APP. P. 20.1(f). If a contest is timely filed, this court will issue an appropriate order.
The clerk of this court is ORDERED to send a copy of this order and a copy of the appellant's letter response to our prior order to the parties, the trial court clerk, the court reporter, and the trial court judge. See TEX. R. APP. P. 20.1(d)(2).
/s/_________
Marialyn Barnard, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 4th day of May, 2016.
/s/_________
Keith E. Hottle
Clerk of Court