Kimberly Woodfork v. Bank of America

• Court: Court of Appeals of Texas
• Decided: November 20, 2012
• Docket: 14-12-00927-CV
• Status: Published

Opinion

Order filed November 20, 2012

In The

Fourteenth Court of Appeals ____________

NO. 14-12-00927-CV ____________

KIMBERLY WOODFORK, Appellant

V.

BANK OF AMERICA, Appellee

On Appeal from the Co Civil Ct at Law No 4 Harris County, Texas Trial Court Cause No. 1018590

ORDER

This is an appeal from a judgment signed September 24, 2012. Appellant filed a notice of appeal on October 1, 2012. Appellant also filed a request to proceed without advance payment of costs in the trial court on October 5, 2012. See Tex. R. App. P. 20.1; Higgins v. Randall Cnty. Sheriff’s Office, 193 S.W.3d 898, 899 (Tex. 2006). On October 12, 2012, the Harris County District Clerk filed a contest to appellant’s affidavit of inability to pay costs. On November 7, 2012, the trial court signed an order sustaining the contest and ordering appellant to pay costs. Texas Rule of Appellate Procedure 20.1 governs the procedure to be followed when a party seeks to appeal without the advance payment of costs. Rule 20.1(i) provides that the trial court must either conduct a hearing or sign an order extending the time to conduct a hearing within ten days after the contest was filed. Tex. R. App. P. 20.1(i)(2). The time for conducting a hearing must not be extended for more than 20 days from the date the order extending the hearing is signed. Tex. R. App. P. 20.1(i)(3). If the trial court has not signed an order sustaining the contest within the period set for the hearing, the affidavit’s allegations will be deemed true, and the party will be allowed to proceed without advance payment of costs. Tex. R. App. P. 20.1(i)(4).

The partial clerk’s record filed November 7, 2012, contains no signed order extending the time to conduct a hearing. The trial court’s order sustaining the contest was not signed within ten days after the contest was filed. Accordingly, the allegations in appellant’s affidavit of indigence are deemed true and appellant is allowed to proceed without the advance payment of costs. See Tex. R. App. P. 20.1(i)(4); Jamilah v. Washington Mut. Bank, F.A., No. 14-06-00013-CV, 2007 WL 925783, *1 (Tex. App.— Houston [14th Dist.] Mar. 29, 2007, no pet.) (mem. op.).

The Harris County District Clerk is ordered to file a complete clerk’s record in this appeal without the advance payment of costs within 30 days of the date of this order.. The clerk’s record shall contain the items required by Texas Rule of Civil Procedure 34.5(a). The official court reporter, Karen Field, is ordered to file the reporter’s record in this appeal without the advance payment of costs within 30 days of the date of this order.

PER CURIAM

Panel consists of Justices Frost, Christopher, and Jamison.