Jerry Hofrock v. Judy Hornsby

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-14-00505-CV

Jerry Hofrock, Appellant

v.

Judy Hornsby, Appellee

FROM THE DISTRICT COURT OF BELL COUNTY, 169TH JUDICIAL DISTRICT NO. 253,616-C, HONORABLE GORDON G. ADAMS, JUDGE PRESIDING

ORDER AND MEMORANDUM OPINION

PER CURIAM

Jerry Hofrock filed a notice of appeal on August 13, 2014 from the trial court’s

judgment signed on July 18, 2014. The reporter’s record is overdue and no payment arrangements

have been made with the court reporter. On February 2, 2015, Hofrock filed a motion that relied on

his affidavit of indigency, requesting extension of the filing deadline for his brief and abatement of

this appeal until after the reporter’s record is filed.

Hofrock filed an untimely affidavit of indigence in the trial court on September 2,

2014. See Tex. R. App. P. 20.1(c)(1) (“An appellant must file the affidavit of indigence in the

trial court with or before the notice of appeal.”). By that time, the trial court had lost plenary power

over the case. Tex. R. Civ. P. 329b(d) (“The trial court, regardless of whether an appeal has been

perfected, has plenary power to grant a new trial or to vacate, modify, correct, or reform the

judgment within thirty days after the judgment is signed.”). Because the trial court did not have plenary power over the case when Hofrock filed his affidavit of indigence, it had no authority to

conduct a hearing on any contest. See In re J.B., No. 12-03-00033-CV, 2003 Tex. App. LEXIS

3488, at *4 (Tex. App.—Tyler Apr. 23, 2003, no pet.) (mem. op.). Thus, there was no opportunity

for the clerk, court reporter, or any party to contest the affidavit as permitted by the Texas Rules of

Appellate Procedure. See Tex. R. App. P. 20.1(e), (i).

We grant Hofrock’s motion in part and abate this appeal. The trial court clerk shall:

(1) provide the notice specified in Rule 20.1(d)(1) of the Texas Rule of Appellate Procedure and

(2) set a deadline for filing a contest to the affidavit of indigence. If a contest is timely filed, the

trial court shall hold a hearing to consider evidence and grant the appropriate relief. See Tex. R.

App. P. 20.1(e)(1), (f), (g)(1), (i). The appeal will be reinstated upon written notice to this Court

from any party that: (1) no contest was timely filed, (2) the trial court has issued an order sustaining

the contest, or (3) the trial court has not sustained the contest within the period set for hearing the

contest. See Tex. R. App. P. 20.1(f), (i)(4).

It is ordered on February 6, 2015.

Before Chief Justice Rose, Justices Goodwin and Field

Abated and Remanded

Filed: February 6, 2015