James Hill v. Texas Department of Protective and Regulatory Services

• Court: Court of Appeals of Texas
• Decided: June 19, 1997
• Docket: 03-97-00200-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

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NO. 03-97-00200-CV

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James Hill, Appellant

v.

Texas Department of Protective and Regulatory Services, Appellee

FROM THE DISTRICT COURT OF COMAL COUNTY, 207TH JUDICIAL DISTRICT

NO. C95-182B, HONORABLE BILL BENDER, JUDGE PRESIDING

PER CURIAM

James Hill attempted to appeal from the trial-court judgment terminating his parental rights by filing a timely notice of appeal. He then filed an affidavit of inability to pay costs. However, a review of the transcript showed no evidence that he gave any notice of the affidavit. Tex. R. App. P. 40(a)(3)(B). Without proper notice, the affidavit is ineffective as a perfecting instrument unless it is "amended" by substituting a cost bond or cash deposit. See Aguirre v. Texas Dep't of Protective and Regulatory Services, 917 S.W.2d 462, 464 (Tex. App.--Austin 1996) (order on motion).

By letter, the office of the Clerk of this Court informed appellant that he was not able properly to perfect appeal by a notice of appeal and that he needed to provide proof of notice of the affidavit of indigence or substitute an effective perfecting instrument because an appellant who fails to give the two-day notice may not appeal by affidavit. See Tex. R. App. P. 40(a)(3)(B). To date, neither has been received. We have received only a motion for extension of time to file the statement of facts. Accordingly, we will dismiss the appeal as it has never been properly perfected. Tex. R. App. P. 60(a)(2). All pending motions are dismissed.

Before Justices Powers, Jones and Kidd

Appeal Dismissed

Filed: June 19, 1997

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