Opinion
NO. 14-14-00280-CV
07-15-2014
LEROY STROMAN, Appellant v. ROBERT RUSSELL TAUTENHAHN, INDEPENDENT EXECUTOR OF THE ESTATE OF ROBERT L. WRIGHT, DECEASED, Appellee
Motion to Reinstate Granted; Memorandum Opinion issued June 5, 2014,
Withdrawn; Appeal Reinstated; Order filed July 15, 2014.
On Appeal from the County Court at Law No. 4 and Probate Court
Brazoria County, Texas
Trial Court Cause No. CI48098
ORDER
On February 20, 2014, the trial court signed an order granting appellee's non-suit in a de novo appeal from justice court. Appellant Stroman then filed a motion for attorney's fees. Stroman also filed a motion to reconsider the granting of the non-suit. On March 17, 2014, the trial court signed an order denying Stroman's motion for reconsideration. Stroman filed his notice of appeal on April 4, 2014.
The clerk's record was filed on April 17, 2014. The clerk's record contains no affidavit of indigence or evidence that Stroman has established that he is entitled to proceed without the advance payment of costs on appeal. See Tex. R. App. P. 20.1(a) (listing requirements for establishing indigence).
On May 8, 2014, this court ordered Stroman to pay the appellate filing fee on or before May 23, 2014, or the appeal would be dismissed. See Tex. R. App. P. 42.3(c) (allowing involuntary dismissal of appeal where appellant fails to comply with court order). Stroman did not pay the appellate filing fee or file any response to this court's order. Therefore, on June 5, 2014, this court dismissed the appeal.
On June 11, 2014, Stroman filed a motion to reinstate the appeal, asserting that his counsel did not receive notice of the intent to dismiss. In addition, Stroman asserts that he is entitled to proceed without the advance payment of costs. On June 20, 2014, a supplemental clerk's record was filed containing Stroman's affidavit of indigence for appeal. No contest to the affidavit was filed within the deadline prescribed in the appellate rules. See Tex. R. App. P. 20.1(e). Accordingly, Stroman is entitled to proceed without the advance payment of costs. See id. 20.1(f).
Appellee filed a response in opposition to appellant's motion to reinstate asserting that Stroman's affidavit of indigence was not filed timely. The Texas Supreme Court has held that late-filed affidavits of indigence are effective. See Sprowl v. Payne, 236 S.W.3d 786, 787 (Tex. 2007) (per curiam). An affidavit of indigence may be filed or amended after the time specified for its filing in Rule 20.1 because an affidavit of indigence is no longer a jurisdictional requirement. See Tex. R. App. P. 25.1(b); In re J.W., 52 S.W.3d 730, 733 (Tex. 2001).
Accordingly, we GRANT Stroman's motion to reinstate the appeal. We WITHDRAW our Memorandum Opinion issued June 5, 2014, and VACATE the judgment issued that date. We order the appeal REINSTATED.
We ORDER Stroman to file his appellant's brief on or before August 15, 2014.