James Charles Smith v. Pioneer Homes Builders, Inc. ( 2012 )

Motion Denied and Order filed December 14, 2012
In The
Fourteenth Court of Appeals
____________
NO. 14-12-00825-CV
____________
JAMES CHARLES SMITH, Appellant
V.
PIONEER HOMES BUILDERS, INC., Appellee
On Appeal from the 133rd District Court
Harris County, Texas
Trial Court Cause No. 2011-57739
ORDER
This appeal is from a judgment signed August 28, 2012. The notice of
appeal was filed August 31, 2012. To date, the appellate filing fee of $175.00 has
not been paid. On September 20, 2012, the court notified appellant that the filing
fee was due. On November 5, 2012, the Harris County District Clerk’s office
notified this court that appellant had not paid for preparation of the clerk’s record
and had not filed an affidavit of indigence. On November 6, 2012, notification was
1
transmitted to all parties of this court’s intention 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). On December 7, 2012, appellant filed a motion to proceed without
payment of costs.1
Appellant’s motion does not comply with the procedural or substantive
requirements of Rule 20 and is therefore DENIED. See Tex. R. App. P. 20.1(b).
However, we may not dismiss an appeal for defects in procedure without allowing
a reasonable to time correct the defects or without giving the affiant an opportunity
to amend his affidavit to correct substantive defects. Tex. R. App. P. 44.3; Higgins
v. Randall County Sheriff's Office, 193 S.W.3d 898, 899 (Tex. 2006).
Accordingly, we order appellant to correct the defects in compliance with Texas
Rule of Appellate Procedure 20 within fifteen days of the date of this order. See
Tex. R. App. P. 20.1(b). If appellant fails to timely comply in accordance with
this order, the appeal will be dismissed.
PER CURIAM
Panel consists of Justices Frost, Christopher, and Jamison.
1
Even if a party proceeded as a pauper in the trial court, a new affidavit of indigence must be
filed in the trial court after judgment for purposes of appeal. Holt v. F.F. Enterprises, 990
S.W.2d 756, 758 (Tex. App.CAmarillo 1998, pet. denied). A free record will be provided on
appeal only if an affidavit of inability to pay the cost of the appeal is filed under Texas Rule of
Appellate Procedure 20 and the trial court finds the appeal is not frivolous and the record is
necessary to decide the appeal. Tex. Civ. Prac. & Rem. Code Ann. ' 13.003(a). The party may
then proceed without advance payment of costs if no contest is filed or the contest is not
sustained by a written order. Tex. R. App. P. 20.1.
2