in the Interest of B.S., a Child ( 2006 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-06-00248-CV

In the Interest of B.S., a Child

From the 82nd District Court

Robertson County, Texas

Trial Court No. 06-01-17,424-CV

DISSENTING Opinion

          The September 15, 2006 letter misrepresented the events necessary to avoid dismissal of this appeal.  As the Texas Supreme Court made clear in Higgins, it is not too late for Higgins to establish her indigence and pursue her appeal.  Higgins v. Randall County Sheriff’s Office, 193 S.W.3d 898 (Tex. 2006).  Nevertheless, Phillips, via her attorney, was told by this Court that unless she had already “obtained indigent status for purposes of appeal under Texas Rule of Appellate Procedure 20, the payment of the fling [sic] fee is required.”  (Letter from Tenth Court of Appeals dated September 15, 2006.)

This statement is contrary to the holding of the Texas Supreme Court in Higgins.  It was not too late for Phillips to file an indigence affidavit.  And, unless a challenge to it was sustained, it was not too late to thus proceed without the advance payment of costs, including the filing fee.

On the record before me, it is still not too late for the indigence affidavit to be filed.  I, therefore, cannot yet vote to dismiss Phillips’s appeal.

Until she is notified of what is necessary to avoid dismissal and thereafter fails to take the necessary remedial action, we cannot properly dismiss her appeal.  I note that we did not have to tell her what action was necessary to avoid dismissal.  We could have simply told her the filing fee had not been paid and given her a time period by which to respond.  But having affirmatively misrepresented what action was necessary to prevent dismissal, we cannot properly dismiss this appeal without correcting that misrepresentation.

Accordingly, I respectfully dissent.

                                                          TOM GRAY

                                                          Chief Justice

Dissenting opinion delivered and filed October 25, 2006