Raymond S. Vinton v. Glenda Fuller, D/B/A Glenda Fuller & Associates

• Court: Court of Appeals of Texas
• Decided: December 11, 1997
• Docket: 03-97-00500-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

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NO. 03-97-00500-CV

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Raymond S. Vinton, Appellant

v.

Glenda Fuller, d/b/a Glenda Fuller & Associates, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT

NO. 96-07078, HONORABLE F. SCOTT MCCOWN, JUDGE PRESIDING

PER CURIAM

A final judgment against Raymond S. Vinton was signed on April 10, 1997. Vinton filed an affidavit of inability to pay the costs of appeal on July 8, 1997. Glenda Fuller timely contested Vinton's affidavit of inability to pay. The trial court sustained the contest at a July 17, 1997 hearing.

Vinton filed a motion for leave to file a petition for writ of mandamus on August 25, 1997, asking this Court to reverse the trial court's decision to sustain the contest. We denied leave to file on August 28, 1997. ⁽¹⁾ See Vinton v. McCown, No. 03-97-00499-CV (Tex. App.--Austin Aug. 28, 1997, orig. proceeding). Because Vinton was not entitled to perfect by affidavit of inability to pay, and did not either file a cost bond or substitute or successfully challenge the trial court's decision to sustain the contest, he did not timely perfect this appeal. This Court has no jurisdiction in the absence of a timely filed perfecting instrument. Davies v. Massey, 561 S.W.2d 799, 801 (Tex. 1978).

We dismiss the appeal for want of jurisdiction. See former Tex. R. App. P. 54(c);60(a)(2).

Before Chief Justice Carroll, Justices Jones and Kidd

Dismissed for Want of Jurisdiction

Filed: December 11, 1997

Do Not Publish

1. The Court did not issue an opinion when it denied the motion for leave to file. However, we note that an appellant who loses the contest to an affidavit must either pay the costs of appeal within ten days of the day the contest is sustained or must file a mandamus action within the same time period, asking the Court to suspend the appellate timetables. See former Tex. R. App. P. 5(a); 41(a)(2); see also White v. Baker & Botts, 833 S.W.2d 327, 328 (Tex. App.--Houston [1st Dist.] 1992, no writ). Vinton did neither.