Rita Lemons v. Joe Payton Lee ( 2015 )

COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS AT HOUSTON ORDER Appellate case name: Rita Lemons v. Joe Payton Lee Appellate case number: 01-15-00701-CV Trial court case number: 2013-55684 Trial court: 151st District Court of Harris County Appellant, Rita Lemons, has filed affidavits of indigence to proceed without advance payment of costs on appeal. Although a clerk’s record has not been filed in this appeal, we take notice of the clerk’s record filed in a related appeal (Joe Payton Lee v. Rita Lemons, 01-15- 00208-CV) arising from the same underlying trial court case number. The clerk’s record in the related case indicates that appellant filed an affidavit of indigence with the trial court in earlier notice of appeal on April 30, 2015 and the trial court subsequently entered an order on May 18, 2015 overruling the district court clerk’s contest to the affidavit as untimely. Accordingly, appellant already has been deemed indigent for purposes of this appeal and we dismiss appellant’s subsequent requests as moot. The Clerk of this Court is ORDERED to make an entry in this Court’s records that appellant is indigent and is allowed to proceed on appeal without advance payment of costs. See TEX. R. APP. P. 20.1(f), (n). It is further ORDERED that the District Clerk file with this Court, within 30 days of the date of this order and at no cost to appellant, a clerk’s record containing the items specified in Texas Rule of Appellate Procedure 34.5(a). See TEX. R. APP. P. 20.1(i)(4). It is further ORDERED that appellant’s brief filed on October 2, 2015 and amended brief filed on October 16, 2015 be struck for failure to comply with Texas Rule of Appellate Procedure 38.1. See TEX. R. APP. P. 38.1, 38.9. Because a reporter’s record has been filed, appellant is ORDERED to file an opening brief complying with the applicable rules within 30 days of the filing of the clerk’s record. See TEX. R. APP. P. 38.6(a). Failure to file appellant’s brief within this time may result in dismissal of this appeal for want of prosecution. See TEX. R. APP. P. 38.8(a). Appellee’s brief, if any, must be filed within 30 days after the date appellant’s brief is filed. See TEX. R. APP. P. 38.6(b). It is so ORDERED. Judge’s signature: /s/ Jane Bland  Acting individually  Acting for the Court Date: November 17, 2015