Joseph "Joey" Glen Dauben v. State ( 2012 )

IN THE
TENTH COURT OF APPEALS
No. 10-12-00177-CV
JOSEPH "JOEY" GLEN DAUBEN,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 40th District Court
Ellis County, Texas
Trial Court No. 84294
MEMORANDUM OPINION
In this matter, appellant, Joseph “Joey” G. Dauben, challenges the trial court’s
final judgment ordering the forfeiture of the domain name, elliscountyobserver.com,
which was owned and operated by Dauben. After filing his notice of appeal, Dauben
filed an affidavit of indigence, requesting that he be allowed to proceed with this appeal
free of costs. See, e.g., Dauben v. State, No. 10-12-00177-CV, 2012 Tex. App. LEXIS 5256,
at *1 (Tex. App.—Waco June 22, 2012, order). The State of Texas filed a contest to
Dauben’s affidavit of indigence, arguing that Dauben “is not indigent as defined by the
appellate courts.” See id. We abated this appeal and referred “the matter to the trial
court with instructions to hear evidence and grant appropriate relief with regard to
appellant’s affidavit . . . and the State’s contest to appellant’s affidavit.” Id. at *2.
After a hearing at which Dauben and several others testified, the trial court
sustained the State’s contest to Dauben’s affidavit of indigence, ostensibly concluding
that Dauben is not indigent. Dauben subsequently appealed the trial court’s resolution
of the State’s contest to his affidavit of indigence. By an order per curiam issued on
August 9, 2012, we reinstated this matter and affirmed the trial court’s order sustaining
the State’s contest to Dauben’s affidavit of indigence. Further, in that order, we
informed Dauben that the clerk’s and reporter’s records in the underlying appeal had
not been filed because Dauben had not arranged for the payment of these records. We
also informed Dauben that he had not paid this Court’s $175 filing fee for this appeal.
Moreover, we notified Dauben that the underlying appeal is subject to dismissal if he
failed to pay, or make arrangements to pay, for the clerk’s and reporter’s records and
this Court’s filing fees within twenty-one days of the date of the order. More than
twenty-one days have passed since we issued our August 9, 2012 order per curiam, and
Dauben has neither paid nor made arrangements to pay for the clerk’s and reporter’s
records or this Court’s filing fees. In addition, Dauben has not informed this Court of
any actions he has taken to pay for the records and this Court’s filing fees. Accordingly,
this appeal is dismissed for want of prosecution. See TEX. R. APP. P. 37.3(b), 42.3(b).
Absent a specific exemption, the Clerk of the Court must collect filing fees at the
time a document is presented for filing. See id. at R. 12.1(b); Appendix to TEX. R. APP. P.,
Dauben v. State Page 2
Order Regarding Fees (Amended Aug. 28, 2007, eff. Sept. 1, 2007); see also id. at R. 5;
10TH TEX. APP. (WACO) LOC. R. 5; TEX. GOV’T CODE ANN. §§ 51.207(b), 51.208, 51.941(a)
(West 2005 & Supp. 2011). Under these circumstances, we suspend the rule and order
the Clerk to write off all unpaid filing fees in this case. TEX. R. APP. P. 2. The write-off
of the fees from the accounts receivable of the Court in no way eliminates or reduces the
fees owed. See, e.g., Davis v. Cogdell, No. 10-12-00023-CV, 2012 Tex. App. LEXIS 2519, at
*2 (Tex. App.—Waco Mar. 28, 2012, no pet.) (mem. op.).
AL SCOGGINS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Appeal dismissed
Opinion delivered and filed September 20, 2012
[CV06]
Dauben v. State Page 3