Opinion
04-23-00968-CV
01-10-2024
Herbert Lawrence POLINARD, Jr., Appellants v. WOODLAWN CHRISTIAN CHURCH OF SAN ANTONIO, INC., Appellee
From the 407th Judicial District Court, Bexar County, Texas Trial Court No. 2015-CI-10692 Honorable Tina Torres, Judge Presiding
ORDER
Irene Rios, Justice
On November 1, 2023, appellant Herbert Lawrence Polinard, Jr. filed a notice of appeal. On November 21, 2023, appellant William Ian Malcomson filed a separate notice of appeal.
On November 29, 2023, the Bexar County District Clerk filed a notification of late record stating that the clerk's record had not been filed because appellants had not paid the clerk's fee for preparing the record. On December 1, 2023, we ordered appellants to provide written proof by December 15, 2023 that they had paid or made arrangements to pay the clerk's fee or that they were entitled to appeal without paying the fee. In our order, we cautioned appellants that if they failed to respond within the time provided, we would dismiss the appeal.
Appellant Polinard did not file a response to our December 1 order. However, appellant Malcomson filed a Statement of Inability to Afford Payment of Court Costs or an Appeal Bond in this court on December 12, 2023. Additionally, appellant Malcomson's December 12, 2023 docketing statement represents that he also filed a Statement of Inability to Afford Payment of Court Costs or an Appeal Bond in the trial court and that no challenges to that statement were asserted in the trial court.
The Texas Rules of Appellate Procedure do not give us authority to overrule an appellant's claim of inability to pay fees for preparing the appellate record. See TEX. R. APP. P. 20, cmt. to 2016 change. Instead, questions regarding an appellant's ability to pay for the appellant record must be resolved in the trial court in accordance with Texas Rule of Civil Procedure 145. See TEX. R. APP. P. 20.1(A); TEX. R. CIV. P. 145.
If the district clerk wishes to contest appellant Malcomson's claim of inability to pay for the record, we ORDER it to file a motion in the trial court that complies with Texas Rule of Civil Procedure 145 by January 22, 2024. If the district clerk files such a motion in the trial court, we further ORDER it to notify this court in writing of that filing by January 25, 2024. If the district clerk does not file a motion in the trial court and notify us of that filing by the dates specified in this order, we will assume it does not contest appellant Malcomson's claim of inability to pay for the record, and the clerk's record must be filed in this court by February 9m 2.
We hold appellant Polinard's separate notice of appeal and appellees' motion to dismiss appellant Malcomson's appeal in abeyance pending our receipt of the clerk's record.