Johnny Q. Clawson, Jr. v. Crosby Independent School District ( 2011 )

Appeal Reinstated and Order filed November 29, 2011.
In The
Fourteenth Court of Appeals
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NO. 14-11-00532-CV
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JOHNNY Q. CLAWSON, JR., Appellant
V.
CROSBY INEPENDENT SCHOOL DISTRICT, Appellee
On Appeal from the 333rd District Court
Harris County, Texas
Trial Court Cause No. 2009-59608
ORDER
This is an appeal from a judgment signed September 7, 2011. Appellant filed a
premature notice of appeal on June 13, 2011. See Tex. R. App. P. 27.1(a). Appellant
also filed an affidavit of indigence on June 23, 2011. See Tex. R. App. P. 20.1; Higgins v.
Randall Cnty. Sheriff’s Office, 193 S.W.3d 898, 899 (Tex. 2006) (noting that affidavit of
indigence is no longer jurisdictional and is not required to be filed with the notice of
appeal). On June 30, 2011, the Harris County District Clerk filed a contest to appellant’s
affidavit of inability to pay costs. The official court reporter, Jani Maselli, advised this
court that there is no reporter’s record from an indigency hearing or any other underlying
proceedings. On August 8, 2011, the Harris County District Clerk’s office advised this
court that the trial court sustained the County’s contest to appellant’s affidavit. Appellant
requested that we review the trial court’s ruling sustaining the contest to his affidavit of
indigence.
On September 8, 2011, this court abated the appeal and ordered a partial record on
indigence pursuant to In re Arroyo, 988 S.W.2d 737, 738-39 (Tex. 1998). A partial
clerk’s record has been filed. The clerk’s record on indigence contains only an unsigned
order on the contest.
Texas Rule of Appellate Procedure 20.1 governs the procedure to be followed when
a party seeks to appeal without the advance payment of costs. Rule 20.1(i) provides that
the trial court must either conduct a hearing or sign an order extending the time to conduct
a hearing within ten days after the contest was filed. Tex. R. App. P. 20.1(i)(2). The time
for conducted a hearing must not be extended for more than 20 days from the date the order
extending the hearing is signed. Tex. R. App. P. 20.1(i)(3). If the trial court has not
signed an order sustaining the contest within the period set for the hearing, the affidavit’s
allegations will be deemed true, and the party will be allowed to proceed without advance
payment of costs. Tex. R. App. P. 20.1(i)(4).
In this case, the District Clerk’s office acknowledged in correspondence to this
court that the file contains only a docket entry that the contest was sustained.
Accordingly, we issue the following order:
Because no signed order sustaining the contest has been filed, the allegations in
appellant’s affidavit of indigence are deemed true and appellant is allowed to proceed
without the advance payment of costs. See Tex. R. App. P. 20.1(i)(4); Jamilah v.
Washington Mut. Bank, F.A., No. 14-06-00013-CV, 2007 WL 925783, *1 (Tex.
App.—Houston [14th Dist.] Mar. 29, 2007, no pet.) (mem. op.).
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The appeal is ordered REINSTATED. The Harris County District Clerk is
ordered to file a complete clerk’s record in this appeal, containing the contents required by
Texas Rule of Civil Procedure 34.5(a) on or before December 16, 2011.
PER CURIAM
Panel consists of Chief Justice Hedges and Justices Anderson and Christopher.
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