in the Interest of A.M.W., a Child

• Court: Court of Appeals of Texas
• Decided: April 14, 2016
• Docket: 04-16-00105-CV
• Status: Published

Opinion

Fourth Court of Appeals San Antonio, Texas April 14, 2016

No. 04-16-00105-CV

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

From the 57th Judicial District Court, Bexar County, Texas Trial Court No. 1995EM501946 The Honorable Nick Catoe, Jr., Judge Presiding

ORDER On February 25, 2016, appellant Jerry Anthony Weatherspoon filed a notice of appeal from the trial court’s February 16, 2016 judgment.

By letter dated February 29, 2016, the clerk of this court advised appellant that the filing fee in this appeal had not been paid. The letter advised appellant to remit the filing fee no later than March 14, 2016, or the matter would be referred to the court. On March 30, 2016, we ordered appellant to pay the filing fee, or to provide written proof to this court that he is excused from paying the filing fee. Appellant filed a response. On April 1, 2016, we issued an order granting appellant an extension of time to pay the filing fee or file written proof that the he is excused by statute or rules from paying the filing fee.

On April 11, 2016, appellant filed a response in which he states that he is indigent under Rule 20.1 of the Texas Rules of Appellate Procedure. Appellant further states that he is incarcerated, cannot work or provide any income, and any funds that he has are from the lien that is the subject of this appeal. Appellant finally states that he has very little property and no money in his commissary account. We construe appellant’s response as an affidavit of indigence.

A party who cannot pay the costs of an appeal must file an affidavit of indigence “in the trial court with or before the notice of appeal.” TEX. R. APP. P. 20.1(c). It does not appear that appellant timely filed an affidavit of indigence in the trial court; however, an untimely, uncontested affidavit of indigence can be “adequate to fulfill the fundamental purpose of Rule 20.1.” Higgins v. Randall County Sheriff’s Office, 257 S.W.3d 684, 688 (Tex. 2008).

The trial court clerk, the court reporter, or any party can file a contest to the affidavit with this court on or before April 28, 2016. See TEX. R. APP. P. 20.1(e). If no contest is filed, the affidavit’s allegations will be deemed true, and appellant will be permitted to proceed without the payment of the filing fee or the cost to prepare the clerk’s record and reporter’s record for this appeal. If a contest is timely filed, this court will issue an appropriate order. We ORDER the clerk of this court to send copies of the affidavit and this order to the trial court judge, the trial court clerk, the court reporter, and all parties. See TEX. R. APP. P. 20.1(d)(2).

_________________________________ Karen Angelini, Justice

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 14th day of April, 2016.

___________________________________ Keith E. Hottle Clerk of Court