Cecilia Clinkscale v. Paul Scott, MGA Insurance Company, Incorporated ("Gainsco") and Gainsco Auto Insurance Agency, Incorporated

• Court: Court of Appeals of Texas
• Decided: January 14, 2016
• Docket: 01-15-00561-CV
• Status: Published

Opinion

COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS AT HOUSTON

ORDER

Appellate case name: Cecilia Clinkscale v. Paul Scott, MGA Insurance Company, Incorporated (“Gainsco”) and Gainsco Auto Insurance Agency, Incorporated

Appellate case number: 01-15-00561-CV

Trial court case number: 2014-35232A

Trial court: 164th District Court of Harris County

On August 31, 2015 appellant, Cecilia Clinkscale, filed a “Notice of Appeal” challenging the trial court’s August 19, 2015 order sustaining the contest to her affidavit of indigence. We construe appellant’s request as a motion challenging the trial court’s denial of indigence under Texas Rule of Appellate Procedure 20.1(j)(1). See TEX. R. APP. P. 20.1(j)(1) (“If a trial court sustains a contest, the party claiming indigence may seek review of the court’s order by filing a motion challenging the order with the appellate court without advance payment of costs.”). The motion was timely filed after the order sustaining the contest was signed. See TEX. R. APP. P. 20.1(j)(2) (“The motion must be filed within 10 days after the order sustaining the contest is signed, or within 10 days after the notice of appeal is filed, whichever is later.”); see also TEX. R. APP. P. 4.1 (computing deadlines falling on weekend to be next day that is not on weekend or holiday). Nevertheless, neither a trial court clerk’s record nor a reporter’s record regarding indigence has been filed. See TEX. R. APP. P. 20.1(j)(3) (requiring record regarding indigence to be filed within three days after motion challenging order sustaining contest is filed). Without a timely filed record, appellant’s motion could not be submitted to the court within 10 days; thus, the motion is granted by operation of law. See TEX. R. APP. P. 20.1(j)(4) (“If the appellate court does not deny the motion within 10 days after it is filed, the motion is granted by operation of law.”). Accordingly, appellant is entitled to proceed without advance payment of costs. The Clerk of this Court is ORDERED to make an entry in this Court’s records that appellant is indigent and is allowed to proceed on appeal without advance payment of costs. It is further ORDERED that the District Clerk file with this Court, within 30 days of the date of this order and at no cost to appellant, a clerk’s record containing the items specified in Texas Rule of Appellate Procedure 34.5(a). See TEX. R. APP. P. 20.1(k). It is further ORDERED that the Court Reporter file with this Court, within 30 days of the date of this order and at no cost to appellant, the reporter’s record. See id. Appellant’s brief is ORDERED filed with this Court within 30 days after the later of the date the clerk’s record is filed or the date the reporter’s record is filed. See TEX. R. APP. P. 38.6(a). Appellee’s brief, if any, must be filed within 30 days after the date the appellant’s brief is filed. See TEX. R. APP. P. 38.6(b).

It is so ORDERED.

Judge’s signature: /s/ Jane Bland  Acting individually  Acting for the Court

Date: January 14, 2016