Opinion
No. 04-13-00720-CV
11-06-2013
Marilyn STEWART, Appellant v. THE CITY OF SAN ANTONIO, Appellee
From the 45th Judicial District Court, Bexar County, Texas
Trial Court No. 2012-CI-09344
Honorable Cathleen M. Stryker, Judge Presiding
ORDER
On October 17, 2013, appellant filed a notice of appeal and affidavit of inability in this court. The trial court clerk has filed a notification of late record and amended notification of late record stating that the notice of appeal was not filed in their court, appellant is not entitled to appeal without paying the fee, and appellant has not paid the fee for preparing the record. Based on these notifications, it appears that the appellant filed the affidavit of indigency in this court but not in the trial court. Accordingly, we ABATE the cause to the trial court and ORDER that:
a. the clerk, court reporter, or any party wishing to challenge the claim of indigence do so by filing a contest to the affidavit in the trial court within 10 days from the date of this order. TEX. R. APP. P. 20.1(e).
b. the trial court conduct a hearing or sign an order extending the time to conduct a hearing within 10 days after the contest is filed; providing, however, that the time for conducting a hearing on the contest must not be extended for more than 20 days from the date the trial court signs its order extending the time to conduct the hearing. TEX. R. APP. P. 20.1(i)(2).
c. the trial court determine whether or not the appeal is frivolous if no contest is filed or if a contest is overruled. See TEX. CIV. PRAC. & REM. CODE § 13.003.
d. the trial court prepare a written order and written findings of fact and conclusions of law regarding its indigence determination and its determination with regard to whether the appeal is frivolous.
e. the trial court clerk file a supplemental clerk's record as soon as practicable after the trial court enters its order and written findings and conclusions but in no event later than 60 days from the date of this court's order, containing: (1) the contest or a certificate stating no contest was filed: (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.
f. the court reporter file a reporter's record of any hearing on the foregoing matters as soon as practicable but in no event later than 60 days from the date of this court's order.
We further ORDER the clerk of this court to forward a copy of appellant's affidavit of indigence to all parties. All appellate deadlines are SUSPENDED pending further orders from this court.
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Catherine Stone, Chief Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 6th day of November, 2013.
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Keith E. Hottle
Clerk of Court