Mary Ann DeMars and Robert DeMars v. Chia-Su Chou & Teh-Weh Chou

• Court: Court of Appeals of Texas
• Decided: September 10, 2004
• Docket: 14-03-00602-CV
• Status: Published

Opinion

Opinion of January 8, 2004, Withdrawn, Dismissed and Corrected Memorandum Opinion filed September 10, 2004

Opinion of January 8, 2004, Withdrawn, Dismissed and Corrected Memorandum Opinion filed September 10, 2004.

In The

Fourteenth Court of Appeals

____________

NO. 14-03-00602-CV

MARY ANN DEMARS and ROBERT DEMARS, Appellants

V.

CHIA-SU CHOU and TEH-WEH CHOU, Appellees

On Appeal from the County Court at Law No. 4

Fort Bend County, Texas

Trial Court Cause No. 20224

C O R R E C T E D   M E M O R A N D U M  O P I N I O N

This is an appeal from a judgment signed February 4, 2003.  No clerk=s record has been filed.  The clerk responsible for preparing the record in this appeal informed the court appellant did not make arrangements to pay for the record. 

On August 15, 2003, notification was transmitted to all parties of the Court's intent to dismiss the appeal for want of prosecution unless, within fifteen days, appellant paid or made arrangements to pay for the record and provided this court with proof of payment.  See Tex. R. App. P. 37.3(b). On August 27, 2003, appellants notified this court that they had filed affidavits of indigence in the trial court.  On October 9, 2003, this court issued an order directing the Harris County Clerk to file a supplemental clerk=s record containing appellant=s affidavit of indigence, and any other documents or orders pertaining to the affidavit of indigence.  On November 25, 2003, the supplemental clerk=s record was filed.  This record reveals that appellants filed an affidavit of indigence in the justice court in Fort Bend County on May 29, 2001.  No other affidavit of indigence has been filed.

A party who cannot pay the costs in an appellate court may proceed without advance payment of costs if the party files an affidavit of indigence in compliance with Rule 20.1.  Tex. R. App. P. 20.1(a).  The affidavit of indigence for appeal must be filed in the trial court with or before the notice of appeal.  Id. at 20.1(c)(1).  Appellants filed their notice of appeal on March 10, 2003.  However, the record reflects that no affidavit of indigence was filed with or before the notice of appeal.  Although appellants filed an affidavit to proceed in the justice court without payment of costs, appellants have not filed an affidavit of indigence to proceed without payment of costs in the appellate court. 

Because appellants have not complied with the Rule 20.1 requirements for proceeding on appeal without payment of costs, appellants are responsible for paying for the record. Appellants have not made arrangements to pay for the clerk=s record.  Accordingly, the appeal is ordered dismissed.^[1]

PER CURIAM

Judgment rendered and Corrected Memorandum Opinion filed September 10, 2004.

Panel consists of Justices Yates, Hudson, and Fowler.

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^[1]  Having found a clerical error in the opinion and judgment of January 8, 2004, we withdraw the opinion of January 8, 2004, and issue this corrected opinion and nunc pro tunc judgment.