Jose Sanchez and Jeanne Sanchez v. Walter Mortgage Company LLC

Opinion

Walter Mortgage Company e/s

Fourth Court of Appeals

San Antonio, Texas

January 29, 2014

No. 04-13-00881-CV

Jose SANCHEZ and Jeanne Sanchez, Appellants

v.

WALTER MORTGAGE COMPANY LLC, Appellee

From the 79th Judicial District Court, Jim Wells County, Texas Trial Court No. 10-03-48878-CV Honorable Richard C. Terrell, Judge Presiding

ORDER

On December 10, 2013, appellants Jose Sanchez and Jeanne Sanchez filed a notice of appeal from the trial court’s November 13, 2013 judgment. On January 27, 2014, appellant Jose Sanchez filed an affidavit of inability to pay costs in this court. It appears appellant did not file his affidavit in the trial court.

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)(1). Appellant’s affidavit was therefore due in the trial court on December 10, 2013, the date his notice of appeal was filed, or a motion for extension of time to file the affidavit was due in this court fifteen days later, on December 25, 2013. See TEX. R. APP. P. 20.1(c)(1), (3).

We construe the affidavit filed in this court as a motion for extension of time to file the affidavit in the trial court. Although the affidavit was filed outside the fifteen-day deadline set forth in Rule 20.1(3), an untimely 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 (Tex. 2008). Accordingly, we GRANT the motion to extend time to file an affidavit of inability to pay costs.

We ORDER the clerk of this court to send copies of the affidavit and this order to the trial court clerk, the court reporter, and all parties. See TEX. R. APP. P. 20.1(d)(2).

We further ORDER the deadline for filing a contest to the affidavit of indigence is February 10, 2014. Any contest must be filed in this court. See TEX. R. APP. P. 20.1(e)(1).

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Karen Angelini, Justice

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 29th day of January, 2014.

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Keith E. Hottle Clerk of Court