Stacey Hammer v. University Federal Credit Union Wayne Morgan A/K/A El Campo Real Estate, LP A/K/A the Morgan Children, Inc. A/K/A Preferred Properties Venessa Zapata Peters And Kerry L. Haliburton

• Court: Court of Appeals of Texas
• Decided: September 2, 2016
• Docket: 03-16-00262-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-16-00262-CV NO. 03-16-00264-CV

Stacey Hammer, Appellant

v.

University Federal Credit Union; Wayne Morgan a/k/a El Campo Real Estate, LP a/k/a The Morgan Children, Inc. a/k/a Preferred Properties; Venessa Zapata Peters; and Kerry L. Haliburton, Appellees

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 419TH JUDICIAL DISTRICT NO. D-1-GN-15-000557, HONORABLE KARIN KRUMP, JUDGE PRESIDING

ORDER

PER CURIAM

Appellant Stacy Hammer seeks to appeal (1) a summary judgment signed by the trial

court on August 18, 2015, dismissing Hammer’s claims against certain appellees (University Federal

Credit Union, Venessa Zapata Peters, and Kerry Haliburton) and awarding these appellees $10,000

in attorney’s fees, and (2) a final judgment signed on January 12, 2016, dismissing Hammer’s

remaining claims against the remaining defendant (Wayne Morgan a/k/a The Morgan Children, Inc.

a/k/a Preferred Properties) and assessing $37,599.80 as an award of sanctions.

The record has not been filed in this appeal. Both the district clerk and the court

reporter have informed the Clerk of this Court that Hammer has not paid for preparation of the

record. In response to the Clerk’s inquiry regarding payment, Hammer informed the Court that she filed an affidavit of indigence under Texas Rule of Appellate Procedure 20.1, seeking to proceed

without advance payment of costs. See Tex. R. App. P. 20.1 (procedure when party is indigent).

Accordingly, we ordered a partial record containing all documents related to

Hammer’s claim of indigence. The partial record shows that Hammer filed an affidavit of indigence

in the trial court on the same day that she filed her notice of appeal. See Tex. R. App. P. 20.1(c)

(appellant must file affidavit of indigence in trial court with or before the notice of appeal). The

bottom of Hammer’s affidavit of indigence is marked: “denied 5/12/2016.” The record, however,

does not reveal that a timely contest to Hammer’s affidavit of indigence was ever filed or ruled upon.

See Tex. R. App. P. 20.1(e) (providing that contest to indigence “must be filed . . . within 10 days

after the date when the affidavit was filed if the affidavit was filed in the trial court”).

Rule 20.1 provides that “[u]nless a contest [to an affidavit of indigence] is timely

filed, no hearing will be conducted, the affidavit’s allegations will be deemed true, and the party will

be allowed to proceed without advanced payment of costs.” Tex. R. App. P. 20.1(j). If a timely

contest to the affidavit is filed, a hearing on the contest must be conducted within 10 days (subject

to extension) and an order on the contest signed. See Tex. R. App. P. 20.1(i)(2) (trial court must

either conduct a hearing or sign an order extending the time to conduct hearing within 10 days after

contest was filed). “Unless within the time period set for the hearing—the trial court signs an order

sustaining the contest, . . . the party will be allowed to proceed without advance payment of costs.”

Tex. R. App. P. 20.1(i)(4).

Here, Hammer timely filed an affidavit of indigence, but no timely contest was filed

and, consequently, no hearing was conducted and no order sustaining a contest was timely signed.

2 Accordingly, we order that Hammer be allowed to proceed without advance payment of costs, as

required by Rule 20.1. The reporter’s record and clerk’s record shall be filed with the Clerk of this

Court no later than October 3, 2016.

It is ordered on September 2, 2016.

Before Justices Puryear, Pemberton, and Field