Watkins v. State

226 S.W.3d 737, 2007 Tex. App. LEXIS 4247, 2007 WL 1558830

• Court: Court of Appeals of Texas
• Decided: May 30, 2007
• Docket: 10-07-00001-CV
• Status: Published

Opinions

ORDER

PER CURIAM.

Michael Don Watkins, who is incarcerated in a federal correctional facility, filed a notice of appeal on December 18, 2006, from a judgment in a forfeiture proceeding in the 414th District Court of McLennan County. On January 3, the Clerk notified Watkins that the filing fee of $125 was past due and should be paid within ten days. On January 29, the District Clerk of McLennan County notified us that the clerk’s record had not been filed because the cost of preparation had not been paid, sending a copy of the letter to Watkins. On that same day, our Clerk notified him that he should pay or make arrangements to pay for the clerk’s record within 21 days. On January 30, we once again notified Watkins that our filing fee was past due and should be paid within ten days. On February 20, 2007, Watkins filed in this court an “Affidavit in Support of Motion to Proceed In Forma Pauperis.” On February 27, we forwarded a copy of the Affidavit to the District Clerk and the court reporter and stated that any contest of the Affidavit must be filed within 14 days.

On March 12, the District Clerk filed a contest of Watkins’s affidavit, alleging that she received notice of the Affidavit on February 27, that the estimate for the cost of the clerk’s record is $50, and that Watkins is not a pauper. She also alleges that the Affidavit was not timely filed “with or before the notice of appeal” and that it was filed with the wrong clerk. Finally, she asks that Watkins’s right to proceed without advance payment of costs be denied and a date set by which he must pay. We notified Watkins of the contest on March 27, requesting submission of additional evidence within 21 days. On March 29, we again notified Watkins that the filing fee was past due, and on April 3 he responded by calling our attention to the pending Affidavit. He did not submit additional evidence in response to our request.

On April 20, we filed a reporter’s record, which shows that the cost of preparation was $52.

Our initial inquiry addresses the timeliness of the Affidavit. Our Supreme Court has held that the failure to file such an affidavit is not jurisdictional and may be corrected. Hood v. Wal-Mart Stores, Inc., 216 S.W.3d 829 (Tex.2007); Higgins v. Randall County Sheriff’s Office, 193 S.W.3d 898 (Tex.2006). Thus, we find that the Affidavit is properly before us.

We next address the timeliness of the contest under the provisions of Appellate Rule 20. Because the Affidavit was filed in the appellate court, our Clerk set a deadline for filing a contest. Tex.R.App. P. 20.1(d)(2)(B). Because the District Clerk filed her contest within the time allowed, it was timely. Id. 20.1(e).

Finally, we turn to our decision about the Affidavit. Id. 20.1(h). The burden of proof rests with Watkins. Id. 20.1(g) (“If a contest is filed, the party who filed the affidavit must prove the affidavit’s allegations.”). In this instance, we requested additional evidence and will decide the contest based on the Affidavit and other timely filed documents. Id. 20.1(h)(2), (3); see also id. 20.1(g) (when party is incarcerated, the affidavit must be considered as evidence).

Watkins contends that the contest is not sufficient because the District Clerk did not file it under oath. However, “the contest need not be sworn.” Id. 20.1(e).

The costs are: $50 for the clerk’s record, $52 for the reporter’s record, and $125 for the appellate filing fee. The Affidavit shows that Watkins received income within the last 12 months. He describes the source and amount as: “Unicor Industries $2,500 a year.” Based on the information before us, we find that Watkins can pay some of the costs. Id. 20.1(k). We will allocate payment among those officials to whom payment is due by requiring Watkins to pay the costs of the clerk’s record and the reporter’s record and by waiving the appellate filing fee. See id.

Payment for the clerk’s record is due to the District Clerk of McLennan County within 45 days after the date of this order. Id. If payment is not made for the clerk’s record within that time, the appeal will be dismissed for want of prosecution. Id. 37.3(b). Payment for the reporter’s record is due to Teresa Santana, Official Court Reporter for the 414th District Court, within 90 days after the date of this order.

Absent a specific exemption, the Clerk of the Court must collect filing fees at the time a document is presented for filing. Id. 12.1(b); Appendix to Tex.R.App. P., Order Regarding Fees (July 21, 1998); see also Tex.R.App. P. 5; 10th TexApp. (Waco) Loe. R. 6; Tex. Gov’t Code Ann. §§ 51.207(b), 51.941 (Vernon 2005). To the extent necessary and under these circumstances, we suspend the rule and order the Clerk to write off all filing fees in this case. Tex.R.App. P. 2; see In re Williamson, No. 10-07-00032-CV, 2007 WL 475343 (Tex.App.-Waco Feb.14, 2007, orig. proceeding) (Gray, C.J.).

Chief Justice GRAY dissenting.