Travis Arrington v. County of El Paso, Texas, and Leo Samaniego, Sheriff of El Paso, County, Texas ( 2003 )

COURT OF APPEALS

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

TRAVIS ARRINGTON,                             Appellant, v. COUNTY OF EL PASO, TEXAS, AND LEO SAMANIEGO, SHERIFF OF EL PASO COUNTY, TEXAS,                             Appellees.

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No. 08-03-00371-CV Appeal from the 346th District Court of El Paso County, Texas (TC#2002-1492)

MEMORANDUM OPINION

Travis Arrington has filed two pauper=s oaths in this Court, seeking to appeal as an indigent.  For the reasons that follow, we will allow the interested parties to contest Arrington=s claim of indigence.  If no contest is filed, Arrington will be allowed to proceed without advance payment of costs.

Procedural History

Arrington brought this negligence suit against the County of El Paso and its sheriff, Leo Samaniego.  On July 21, 2003, the trial court granted the defendants= motion to dismiss, motion for no-evidence summary judgment, and plea to the jurisdiction.   Arrington timely filed a notice of appeal on August 6, 2003.  See Tex. R. App. P. 26.1.  On August 22, 2003, we received Arrington=s docketing statement in an envelope post-marked August 20, 2003.  Included with the docketing statement was APlaintiff=s Pauper=s Oath,@ in which Arrington requested permission to proceed without the payment of court costs.  On September 29, 2003, we received a second pauper=s oath from Arrington.  In this document, Arrington specifically requests that the clerk=s and reporter=s records be prepared and filed at county expense.  Although we have received the clerk=s record, it does not appear that Arrington has paid for it, nor has he paid his appellate filing fee.  We have not received a reporter=s record.  The court reporter has notified this Court that Arrington has not designated the hearings that he wants transcribed.  In his docketing statement, Arrington responded AN/A@ to questions referring to the reporter=s record.

Discussion

An appellant who cannot pay the costs of an appeal must file an affidavit of indigence in the trial court with or before the notice of appeal.  Tex. R. App. P. 20.1(c)(1).  The appellate court may grant an extension of time to file the affidavit if the appellant files a motion for extension of time in the appellate court within fifteen days after the deadline for filing the affidavit.  Tex. R. App. P. 20.1(c)(3).

Pursuant to these rules, Arrington should have filed his pauper=s oath in the trial court on or before August 6, 2003.  Failing that, he should have filed a motion for extension of time in this Court on or before August 21, 2003.  But Arrington filed his pauper=s oaths in this Court after the August 6, 2003 deadline, and he did not file a motion for extension of time.  Nevertheless, for the reasons explained below, we conclude that Arrington may be entitled to appeal as an indigent.

First, pursuant to the Amailbox rule,@ the pauper=s oath filed in this Court on August 22, 2003 was filed within the fifteen-day grace period for seeking an extension of time.  See Tex. R. App. P. 9.2(b)(1) (stating that a document received within ten days after the filing deadline is considered timely filed if it was properly addressed, stamped, and mailed on or before the deadline).  Second, we construe that pauper=s oath as an implied motion for extension of time to file the affidavit of indigence.  Cf. Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997) (holding that a motion for extension of time to file a perfecting instrument is necessarily implied when the appellant files the perfecting instrument within the fifteen-day grace period).  Third, although the pauper=s oath was filed in this Court, we deem it to have been filed in the trial court.  See Tex. R. App. P. 2 (allowing this Court to suspend a rule=s operation); see also In re Taylor, 28 S.W.3d 240, 248 (Tex. App.--Waco 2000, orig. proceeding) (taking judicial notice in a mandamus proceeding of an affidavit of indigence filed in the trial court for purposes of a related appeal); cf. Tex. R. App. P. 25.1(a) (providing that if a notice of appeal is mistakenly filed with the appellate court, the notice is deemed to have been filed on the same day with the trial court clerk).

Accordingly, we will forward a copy of Arrington=s pauper=s oaths to the trial court clerk, the court reporter, and the appellees.  See Tex. R. App. P. 20.1(d).  If any of these parties wishes to challenge Arrington=s claim of indigence, that party must file a contest in this Court no later than ten days from the date of this opinion.  See Tex. R. App. P. 20.1(e).  If no contest is filed, Arrington will be allowed to proceed in this appeal without advance payment of costs.  See Tex. R. App. P. 20.1(f).

SUSAN LARSEN, Justice

October 23, 2003

Before Panel No. 1

Larsen, McClure, and Chew, JJ.