Victor Carrillo v. James A. Collins ( 1995 )

Carrillo v. Collins et al

IN THE

TENTH COURT OF APPEALS

No. 10-95-038-CV

     VICTOR CARRILLO,

                                                                                              Appellant

     v.

     JAMES A. COLLINS, ET AL.,

                                                                                              Appellees

From the 52nd District Court

Coryell County, Texas

Trial Court # 29,155

MEMORANDUM OPINION

      Victor Carrillo attempts to appeal from the court's dismissal of his in forma pauperis petition. See Tex. Civ. Prac. & Rem. Code Ann. 13.001 (Vernon Supp. 1995). Because Carrillo failed to perfect his appeal, we will dismiss for want of jurisdiction.

      The court signed an order dismissing Carrillo's suit on February 8, 1995. Carrillo filed a notice of appeal on February 24. The transcript was filed in this court on March 1. Upon examining the transcript, our clerk determined that Carrillo had not duly perfected his appeal, and notified him of this defect by letter. See Tex. R. App. P. 40(a)(1), 56(a). After Carrillo requested an extension of time, we granted him until June 15 "to properly perfect his appeal." See Grand Prairie Sch. D. v. Southern Parts, 813 S.W.2d 499, 500 (Tex. 1991). On June 19, he filed an "Affidavit of Inability to Pay Costs" in this court.

      Perfecting an appeal is required to invoke our jurisdiction. See Welch v. McDougal, 876 S.W.2d 218, 220-22 (Tex. App.—Amarillo 1994, writ denied); El Paso Sharky's v. Amparan, 831 S.W.2d 3, 5 (Tex. App.—El Paso 1992, writ denied). Because Carrillo is not exempt from paying the costs on appeal, he is required to file either a cost bond, a cash deposit, or an affidavit of inability to pay costs to perfect this appeal. See Tex. Civ. Prac. & Rem. Code Ann. §§ 6.01-6.03 (Vernon 1986 & Supp. 1995); Tex. R. App. P. 40(a)(1), (a)(3); White v. Schiwetz, 793 S.W.2d 278, 279 (Tex. App.—Corpus Christi 1990, no writ). His notice of appeal is insufficient to perfect the appeal. See id.

      However, because his notice of appeal is a bona fide effort to invoke our jurisdiction, we have jurisdiction to allow him the opportunity to properly perfect his appeal. See Linwood v. NCNB Texas, 885 S.W.2d 102, 103 (Tex. 1994). Included within the proper perfection of an appeal is the filing of the appropriate instrument, within the appropriate time, in the appropriate court. See Tex. R. App. P. 40(a)(1), 41(a)(1); Chavez v. Housing Authority, No. 8-93-00422-CV, slip op. at 4-5, 1995 WL 221764, *2 (Tex. App.—El Paso, April 13, 1995, n.w.h.); El Paso Sharky's, 831 S.W.2d at 5. Carrillo's filing of an affidavit of inability to pay costs in this court does not remedy the defect so that this appeal is properly perfected. See id.; also Tex. R. App. P. 55(b).

      Our clerk notified Carrillo that the transcript did not demonstrate that his appeal had been duly perfected. See Tex. R. App. P. 56(a), 60(a)(2). Even though given the opportunity to cure the defect, he has failed to properly perfect this appeal. See id. 40(a)(1), 83. Thus, the transcript does not show that this court has jurisdiction and "after notice it [has] not [been] amended." See id. 56(a).

      Therefore, we dismiss this cause for want of jurisdiction. See id.

                                                                               PER CURIAM

Before Justice Cummings and

            Justice Vance

            (Chief Justice Thomas not participating)

Dismissed for want of jurisdiction

Opinion delivered and filed June 28, 1995

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