Estate of J. W. Boles v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: May 2, 2024
• Docket: 01-22-00737-CV
• Status: Published

Opinion

Opinion issued May 2, 2024

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-22-00737-CV ——————————— CONNIE TRESHAIN BOLES, Appellant V. DONNIE RAY BOLES, Appellee

On Appeal from the Probate Court Galveston County, Texas Trial Court Case No. PR-0080741

MEMORANDUM OPINION

This is an appeal from the trial court’s September 1, 2022 order admitting

the decedent J.W. Boles’s will to probate and issuing letters testamentary to

Donnie Ray Boles. We dismiss the appeal. The record was due on October 31, 2022. On November 9, 2022, the district

clerk advised that appellant had not made payment arrangements for the filing of

the clerk’s record. On November 2, 2022, the Court also sent a notice to appellant

that payment of the filing fee was past due.

On December 5, 2022, appellant filed a motion to appeal as indigent. The

Court ordered a special clerk’s record including any statement of inability filed in

the trial court, any contest to the statement of inability, and any order by the trial

court granting a contest. On January 31, 2023, the trial court clerk filed a

supplemental clerk’s record containing appellant’s motion for a free appellate

record, a contest to appellant’s pauper affidavit, and an order denying appellant’s

motion for a free appellate record. However, because this order failed to comply

with Rule 145(f)(4), we issued an order, abating the appeal and remanding to the

trial court to correct the order so that it advised appellant of her right to challenge

the order by filing a motion in the appellate court within 10 days of the signing of

the trial court’s order. See TEX. R. CIV. P. 145(f)(4).

On March 31, 2023, the trial court filed a supplemental clerk’s record

containing a corrected order signed on March 28, 2024, denying appellant’s motion

for a free appellate record and containing in bold print the statement that appellant

had the right to challenge the trial court’s order. No challenge to the corrected

order was filed in this Court within 10 days.

2 On October 17, 2023, the Court issued a notice that the appeal might be

dismissed unless within 30 days appellant provided proof of payment for the

clerk’s record. No proof of payment was filed. On November 5, 2023, appellant

filed a motion for rehearing of the order issued by this Court on October 17, 2023.

In this motion for rehearing, appellant challenged the trial court’s order concerning

her statement of inability on the ground that the contest failed to comply with Rule

145(e)(1). This motion for rehearing is an untimely challenge to the trial court’s

order. See TEX. R. CIV. P. 145(g). Because appellant failed to file her challenge to

the trial court’s order within 10 days after the corrected order was signed, as

required by Rule 145(g), we deny the motion.

On November 17, 2023, another notice issued advising appellant that the

filing fee payment was past due. Appellant has neither paid the filing fee nor

provided proof of payment for the clerk’s record. See TEX. R. APP. P. 5, 20.1

(indigence), 37.3(b) (allowing dismissal of appeal if no clerk’s record filed due to

appellant’s fault); see also TEX. GOV’T CODE ANN. §§ 51.207, 51.208, 51.941(a),

101.041; Order Regarding Fees Charged in the Supreme Court, in Civil Cases in

the Courts of Appeals, and Before the Judicial Panel on Multi-District Litigation,

Misc. Docket No. 15-9158 (Tex. Aug. 28, 2015).

3 Accordingly, the appeal is dismissed. See TEX. R. APP. P. 42.3, 43.2((f).

Any pending motions, other than that disposed in this opinion, are dismissed as

moot.

PER CURIAM Panel consists of Justices Kelly, Countiss, and Rivas-Molloy.