In the Interest of A.M.M., a Child v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: April 11, 2024
• Docket: 07-23-00457-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-23-00457-CV

IN THE INTEREST OF A.M.M., A CHILD

On Appeal from the 137th District Court Lubbock County, Texas Trial Court No. DC-2023-FM-2124, Honorable John J. "Trey" McClendon III, Presiding

April 11, 2024 ORDER OF ABATEMENT AND REMAND Before QUINN, C.J., and DOSS and YARBROUGH, JJ.

Appellant, Kristine Villalon, proceeding pro se, appeals from the trial court’s Order

Granting Todd Meredith’s and Rosalinda Meredith’s First Amended Motion to Dismiss for

Lack of Standing (Plea to the Jurisdiction). We remand for further proceedings.

The appellate record was due February 6, 2024. The clerk’s record was filed by

this deadline, but the reporter’s record was not because Villalon failed to make payment

arrangements. Villalon later paid for the reporter’s record on February 22, 2024. We,

thus, granted the reporter an extension to March 6 to file the record. On March 18, 2024,

the reporter notified the Court that she discontinued her transcription because Villalon requested, and received, return of the money paid for preparation of the record. 1 By

letter, we notified Villalon that unless she made payment arrangements for the reporter’s

record, we would set her brief due without the benefit of a reporter’s record per Rule of

Appellate Procedure 37.3(c). Villalon subsequently filed a letter with this Court, stating

that (1) she cannot afford the record, (2) has filed a statement of inability to afford payment

of court costs in the trial court, and (3) has filed a motion in the trial court requesting a

free reporter’s record. The trial court clerk has confirmed the filing of these documents.

Under Rule of Appellate Procedure 35.3(b), it is the appellant’s responsibility to

request preparation and make payment arrangements for the reporter’s record. When an

appellant fails to make payment arrangements for the reporter’s record, we may consider

and decide an appeal without a reporter’s record, unless appellant is entitled to proceed

without payment of costs. See TEX. R. APP. P. 37.3(c). A party who cannot afford costs,

including payment of reporter’s fees for preparation of the record, may file a statement of

inability to afford payment of court costs. TEX. R. CIV. P. 145. If a statement of inability

to pay is filed, the trial court may still require the declarant to prove the inability to afford

costs when evidence comes before the court that the declarant may be able to afford

costs. Id. at 145(e)(2).

Here, Villalon has both paid for the reporter’s record (though she requested return

of the money) and filed a statement of inability to afford payment of court costs. She has

also filed a “Motion Waving Transcript Fees,” currently pending in the trial court. We,

therefore, abate the appeal and remand this cause to the trial court to hold a hearing and

1 The reporter’s status report stated:“Ms. Villalon brought me $400 cash and then came back and picked it up advising she no longer wished to appeal. I received a call today, 3-18-24, that now she wishes to appeal.”

2 (1) determine whether is entitled to preparation of the reporter’s record without payment

of costs and (2) rule on Villalon’s motion for a free reporter’s record. See TEX. R. APP. P.

35.3(c) (providing that the trial and appellate court are jointly responsible for ensuring that

the appellate record is timely filed); TEX. R. CIV. P. 145. The trial court shall enter its

rulings and findings in a written order and include the order in a supplemental clerk’s

record which it must cause to be filed with this Court by May 13, 2024.

Per Curiam