Dan Thomas v. University of Texas Medical Branch ( 2004 )

Dismissed and Memorandum Opinion filed March 30, 2004

Dismissed and Memorandum Opinion filed March 30, 2004.

In The

Fourteenth Court of Appeals

____________

NO. 14-04-00082-CV

____________

DAN THOMAS, Appellant

V.

UNIVERSITY OF TEXAS MEDICAL BRANCH, ET AL., Appellees

On Appeal from the 278th District Court

Walker County, Texas

Trial Court Cause No. 22,175

M E M O R A N D U M  O P I N I O N

This is a restricted appeal from an order dismissing appellant=s suit as frivolous, which was signed October 16, 2003.  See Tex. Civ. Prac. & Rem. Code Ann. ' 14.003(a)(1) (Vernon 2002).  The notice of appeal was filed on January 12, 2004.  The clerk=s record has not been filed because the district clerk has not received payment for preparation of the record.  See Tex. R. App. P. 35.3(a). 

Appellant filed an untimely affidavit of inability to pay costs on February 17, 2004.  See Tex. R. App. P. 20.1(c) (requiring the affidavit to be filed with or before the notice of appeal).  In addition, the district clerk informed this court that the affidavit was deficient because it failed to include a certified copy of appellant=s inmate trust account statement.  See Tex. Civ. Prac. & Rem. Code Ann. ' 14.004(c) (Vernon 2002).  We also note that no affidavit relating to appellant=s previous filings was submitted.  See Tex. Civ. Prac. & Rem. Code Ann. ' 14.004(a) (Vernon 2002)

On February 11, 2004, notification was transmitted to all parties of the court=s intent to dismiss the appeal for want of prosecution unless, within fifteen days, appellant paid or made arrangements to pay for the record and provided this court with proof of payment.  See Tex. R. App. P. 37.3(b).  To date, the clerk=s record has not been filed, and appellant has not provided this court with proof of payment for its preparation.  Appellant=s only response has been a request to reconsider the finding that his affidavit of indigence was filed untimely.  This court may extend the time to file an affidavit of indigence only if appellant has filed a motion complying with rule 10.5(b) within fifteen days after the deadline for filing the affidavit.  Tex. R. App. P. 20.1(c)(3).  No timely motion for extension was filed in this case. Moreover, appellant did not provide a sufficient affidavit satisfying the requirements of the statute.  See Tex. Civ. Prac. & Rem. Code Ann. ' 14.004 (Vernon 2002) (requiring affidavit relating to previous filings and certified copy of trust account). 

Accordingly, the appeal is ordered dismissed.

PER CURIAM

Judgment rendered and Memorandum Opinion filed March 30, 2004.

Panel consists of Chief Justice Hedges and Justices Frost and Guzman.