Charles Robert Gauger v. Margie Tidwell Gauger

• Court: Court of Appeals of Texas
• Decided: October 22, 2015
• Docket: 11-15-00245-CV
• Status: Published

Opinion

Order filed October 22, 2015

In The

Eleventh Court of Appeals ___________

No. 11-15-00245-CV ___________

CHARLES ROBERT GAUGER, Appellant V. MARGIE TIDWELL GAUGER, Appellee

On Appeal from the 259th District Court Shackelford County, Texas Trial Court Cause No. 2012-061

ORDER Appellant, Charles Robert Gauger, filed in this court an unsworn declaration of indigence. The document was signed under penalty of perjury. See TEX. CIV. PRAC. & REM. CODE ANN. § 132.001 (West Supp. 2014). When the declaration was filed in this court, the clerk of this court notified Appellee, the court reporter, and the district clerk of the filing and informed them that any contest to Appellant’s indigence was due in our court “on or before October 12, 2015.” See TEX. R. APP. P. 20.1(d)(2), (e). On October 14, 2015, Appellee filed in this court a response to Appellant’s unsworn declaration of indigence. In her response, Appellee asserts that the information contained in Appellant’s declaration is untrue and that the declaration is “therefore insufficient to support the Motion to Stay Execution and should be denied.” We first note that a motion to stay execution is not properly before this court. Appellant did send this court a motion to stay enforcement of the divorce decree pursuant to TEX. R. APP. P. 24, but it appeared to be directed to the trial court—as it should be. See TEX. R. APP. P. 24 (Rules 24.1, 24.2, and 24.3 provide for trial court action on such a motion; Rule 24.4 provides for appellate review by this court). Consequently, this court may not entertain Appellant’s motion to stay enforcement as that is a matter for the trial court to initially address. If Appellee’s response to Appellant’s unsworn declaration of indigence is intended to be a contest under Rule 20.1(e), it was not timely filed. A contest was due to be filed on or before October 12, 2015. Rule 20.1(f) provides that, unless a contest is timely filed, the allegations in the affidavit will be deemed true, and the party will be allowed to proceed without advance payment of costs. TEX. R. APP. P. 20.1(f). Thus, Appellant will be permitted to proceed in this appeal without advance payment of costs. The clerk’s record and the reporter’s record remain due for filing in this court on or before October 30, 2015.

PER CURIAM October 22, 2015 Panel consists of: Wright, C.J., Willson, J., and Bailey, J.