George Goodson v. State of Texas ( 1991 )

Goodson v. State IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN









NO. 3-91-098-CV





GEORGE GOODSON,

APPELLANT

vs.





THE STATE OF TEXAS,

APPELLEE

FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 119TH JUDICIAL DISTRICT

NO. CV89-0161-B, HONORABLE CURT F. STEIB, JUDGE PRESIDING

PER CURIAM

Appellant George Goodson seeks to appeal a district court's judgment in favor of the appellee State of Texas. We will dismiss the appeal for want of jurisdiction.

The district court signed its judgment on November 14, 1990. Because appellant Goodson filed a timely motion for new trial, Tex. R. App. P. Ann. 41(a)(1) (Supp. 1990) required him to perfect any appeal he wished to make on or before February 12, 1991. On December 28, 1990, Goodson filed an affidavit of inability to pay appellate costs with the district clerk of Tom Green County. He filed this affidavit with his motion for the appointment of counsel on appeal. See Tex. R. App. P. Ann. 41(a)(2) (Supp. 1990).

Appellee filed a motion to dismiss the appeal for want of jurisdiction on the basis that appellant did not give notice of the filing of his affidavit of inability to pay pursuant to Tex. R. App. P. Ann. 40(a)(3)(B) (Supp. 1990). Rule 40(a)(3)(B) provides,

The appellant or his attorney shall give notice of the filing of the affidavit to the opposing party or his attorney and to the court reporter of the court where the case was tried within two days after the filing; otherwise, he shall not be entitled to prosecute the appeal without paying the costs or giving security therefor.

Having filed his affidavit on December 28, 1990, appellant should have given notice to appellee or his attorney and the court reporter no later than December 31, 1990.

By his motion, appellee asserts that appellant did not notify the court reporter who tried the case. The motion is supported by the court reporter's affidavit, in which she states that she first learned of the filing of appellant's affidavit on April 22, 1991. The court reporter's affidavit is signed and dated April 25, 1991.

The notice provision of Rule 40 is mandatory; the failure to give notice prevents a party from prosecuting an appeal without paying or securing costs. Matlock v. Allstate Ins. Co., 729 S.W.2d 960 (Tex. App. 1987, no writ); Bantuelle v. Renfroe, 620 S.W.2d 635 (Tex. Civ. App. 1981, no writ); but see Jones v. Stayman, 747 S.W.2d 369 (Tex. 1987) (letter to court reporter stating intent to appeal when affidavit filed, date statement of facts due, and date of hearing on affidavit sufficiently fulfilled purpose of notice provision).

Although appellant perfected his appeal by filing an affidavit of inability to pay within the ninety days permitted him by Rule 41(a)(1), he is not entitled to prosecute the appeal without paying costs or giving security therefor. See Fellowship Missionary Baptist Church, 749 S.W.2d 186, 189 (Tex. App. 1988, no writ). We grant appellee's motion to dismiss the appeal for want of jurisdiction.

The appeal is dismissed for want of jurisdiction.

[Before Chief Justice Carroll, Justices Jones and B. A. Smith]

Dismissed for Want of Jurisdiction

Filed:  June 19, 1991

[Do Not Publish]