Roy C. Bush v. State ( 1996 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-96-00202-CV



Roy C. Bush, Appellant

v.

The State of Texas; The Honorable Rudy Cunningham, Judge of the

Small Claims Court, Kingsland, Texas; and Cheryll Mabray,

the County Attorney for Llano County, Appellees

FROM THE DISTRICT COURT OF LLANO COUNTY, 33RD JUDICIAL DISTRICT NO. 10,899, HONORABLE D. V. HAMMOND, JUDGE PRESIDING

PER CURIAM

The trial court granted final judgment in favor of appellees The State of Texas, The Honorable Rudy Cunningham, Judge of the Small Claims Court, Kingsland, Texas, and Cheryll Mabray, the County Attorney for Llano County, on February 12, 1996. On March 7, 1996, appellant Roy C. Bush filed in the trial court an affidavit of inability to pay the costs of appeal. However, the transcript does not show that he gave notice of the filing of the affidavit to the court reporter or to the opposing party within two days. See Tex. R. App. P. 40(a)(3)(B).

Bush may not proceed by affidavit of inability to pay if the two-day notice was not given. Id.; In re V.G., 746 S.W.2d 500, 502 (Tex. App.--Houston [1st Dist.] 1988, no writ); Bantuelle v. Renfroe, 620 S.W.2d 635, 640 (Tex. Civ. App.--Dallas 1981, no writ). The Clerk of this Court asked Bush to submit a motion to continue the appeal by May 8, 1996, stating whether he gave the required notice. As of August 14, 1996, the motion has not been received.

We have no jurisdiction over the cause in the absence of an effective perfecting instrument. Davies v. Massey, 561 S.W.2d 799, 801 (Tex. 1978). Appellees have filed a motion requesting that we dismiss the appeal. Tex. R. App. P. 60(a). We grant the motion and dismiss the appeal for want of jurisdiction.

Before Justices Powers, Jones and B. A. Smith

Appeal Dismissed for Want of Jurisdiction on Appellees' Motion

Filed: August 14, 1996

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