Edward Longoria v. K and K Tree and Tractor

• Court: Court of Appeals of Texas
• Decided: May 12, 2016
• Docket: 09-16-00037-CV
• Status: Published

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-16-00037-CV ____________________

EDWARD LONGORIA, Appellant

V.

K AND K TREE AND TRACTOR, Appellee _______________________________________________________ ______________

On Appeal from the 435th District Court Montgomery County, Texas Trial Cause No. 14-07-07676-CV ________________________________________________________ _____________

ORDER

Edward Longoria filed a declaration of inability to pay costs in the appellate

court and requested that a clerk’s record be prepared. See Tex. R. App. P.

20.1(c)(1), (3). The appellee filed a contest. See Tex. R. App. P. 20.1(e). When an

affidavit of indigence is filed in the appellate court and a contest is filed, the Court

may refer the matter to the trial court. See Tex. R. App. P. 20.1(h)(4).

It is, therefore, ORDERED that the appeal is abated and the case is

remanded to the trial court for a determination of the appellant’s indigence. The

1 trial court shall hear evidence and grant the appropriate relief. 1 See Tex. R. App. P.

20.1(h)(4). The trial court shall set a hearing and notify the parties and the court

reporter of the setting. The appellant must be provided an opportunity to participate

in the hearing, in person or by telephone or through any reasonably effective form

of remote access. The trial court shall either conduct a hearing within ten days of

receiving the referred contest from this Court or within that time sign an order

extending the hearing date for not more than twenty days. See Tex. R. App. P.

20.1(i) (1), (2)(B), (3). Unless the trial court signs an order sustaining the contest

within the period set for the hearing, the affidavit’s allegations will be deemed true.

See Tex. R. App. P. 20.1(i)(4). If the trial court determines that the appellant is not

indigent because he owns assets that are sufficient to pay the costs of an appeal, the

trial court shall determine whether those assets are in the control of the appellee

and shall determine whether sufficient funds to pay the costs of an appeal have 1 The appellee argues in part that the appellant should be denied a free record because he failed to timely file his notice of appeal and failed to comply with the procedure for obtaining additional time to perfect an appeal. See generally Tex. R. Civ. P. 306a.5. In connection with the hearing herein ordered, the trial court may, but is not required to, make an order concerning the date the appellant received notice of the trial court’s judgment. See Tex. R. App. P. 4.5(d). On March 7, 2016, the appellant submitted a declaration that he delivered a motion for reconsideration to the prison authorities for mailing on December 17, 2015. See Warner v. Glass, 135 S.W.3d 681 (Tex. 2004). The trial court may receive evidence concerning the date the appellant submitted his filings to the prison mail system, but the Court of Appeals shall determine whether the appellant timely perfected his appeal. 2 been deposited in the appellant’s inmate account. A supplemental clerk’s record

containing any orders signed by the trial court in connection with the contest and

any documents filed with the trial court in connection with the contest, together

with a reporter’s record of any hearing conducted pursuant to this Order, shall be

filed with the Court of Appeals by June 13, 2016.

ORDER ENTERED May 12, 2016.

PER CURIAM

Before McKeithen, C.J., Kreger and Horton, JJ.