Manuel and Simona Camacho v. Texas Westchester Financial, LLC

Opinion

Fourth Court of Appeals

San Antonio, Texas

July 27, 2015

No. 04-15-00332-CV

Manuel and Simona CAMACHO, Appellants

v.

TEXAS WESTCHESTER FINANCIAL, LLC, Appellee

From the County Court, Atascosa County, Texas Trial Court No. 4246

Lynn Ellison, Judge Presiding

ORDER

Appellants Manuel and Simona Camacho filed a notice of appeal in the trial court on May 27, 2015. On June 3, 2015, Appellants filed an affidavit of inability to pay costs.

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).

Appellants’ affidavit was due in the trial court on May 27, 2015, the date the notice of appeal was filed. See id. R. 20.1(c)(1), (3). However, if not contested, an untimely affidavit of indigence can be “adequate to fulfill the fundamental purpose of Rule 20.1.” See Higgins v. Randall County Sheriff’s Office, 257 S.W.3d 684, 688 (Tex. 2008).

We ABATE this appeal; the trial court clerk, court reporter, or any party can file a contest to the affidavit in the trial court in accordance with Rule 20.1(e) within TEN DAYS from the date of this order. See TEX. R. APP. P. 20.1(e) (requiring persons to file any contest to the affidavit “in the court in which the affidavit was filed”). If a contest is timely filed, the trial court is ORDERED to proceed in accordance with Rule 20.1(i). See id. R. 20.1(i).

If no contest is filed or if a contest is overruled, the trial court is ORDERED to determine whether or not the appeal is frivolous in accordance with section 13.003 of the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. § 13.003 (West 2002).

The trial court clerk is ORDERED to file a supplemental clerk’s record containing all filings and orders relating to the affidavit of indigence no later than (1) TWENTY DAYS from the date of this order if no timely contest is filed, or (2) FORTY-FIVE DAYS from the date of this order if a timely contest to the affidavit is filed. If a contest is filed, the court reporter responsible for transcribing the record of the hearing on the contest is ORDERED to file a reporter’s record from the hearing no later than FORTY-FIVE DAYS from the date of this order.

The clerk of this court is DIRECTED to send a copy of this order and a copy of the affidavit to the parties, the trial court clerk, the court reporter, and the trial court judge. See TEX. R. APP. P. 20.1(d)(2).

All other appellate deadlines are SUSPENDED pending further order of this court.

_________________________________

Patricia O. Alvarez, Justice

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 27th day of July, 2015.

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Keith E. Hottle Clerk of Court