Burton Kahn v. Helvetia Asset Recovery Inc. ( 2014 )

Helvetia Asset Recovery
Fourth Court of Appeals
San Antonio, Texas
June 27, 2014
No. 04-14-00319-CV
Burton KAHN,
Appellant
v.
HELVETIA ASSET RECOVERY INC.,
Appellee
From the 407th Judicial District Court, Bexar County, Texas
Trial Court No. 2013-CI-18355
Honorable Martha B. Tanner, Judge Presiding
ORDER
Pro se appellant Burton Kahn filed a notice of appeal on May 1, 2014. After the district
clerk notified this court that Appellant has not paid for the record, on June 20, 2014, we ordered
Appellant to provide written proof to this court that Appellant has paid for the record or
Appellant is entitled to appeal without paying for the clerk’s record. On June 25, 2014,
Appellant filed an affidavit of inability to pay costs.
A party 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) (emphasis added).
The clerk’s record has not yet been filed in this case. However, even if Appellant filed an
affidavit of indigence with the trial court before it issued its final judgment, “[a] prior filing of an
affidavit of indigence in the trial court pursuant to Texas Rule of Civil Procedure 145 does not
meet the requirements of this rule, which requires a separate affidavit and proof of current
indigence.” See id.
Appellant’s affidavit was due in the trial court on May 1, 2014, the date the notice of
appeal was filed. See id. R. 20.1(c)(1), (3). However, an untimely, uncontested affidavit of
indigence can be “adequate to fulfill the fundamental purpose of Rule 20.1.” See Higgins v.
Randall County Sheriff’s Office, 257 S.W.3d 684, 688 (Tex. 2008).
This appeal is ABATED, and the trial court clerk, court reporter, or any party can file a
contest to the affidavit in the trial court in accordance with Rule 20.1(e) within TEN DAYS
from the date of this order. See TEX. R. APP. P. 20.1(e) (requiring persons to file any contest to
the affidavit “in the court in which the affidavit was filed”). If a contest is timely filed, the trial
court is ORDERED to proceed in accordance with Rule 20.1(i). See id. R. 20.1(i).
If no contest is filed or if a contest is overruled, the trial court is ORDERED to determine
whether or not the appeal is frivolous in accordance with section 13.003 of the Texas Civil
Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. § 13.003 (West 2002).
The trial court clerk is ORDERED to file a supplemental clerk’s record containing all
filings and orders relating to the affidavit of indigence no later than (1) TWENTY DAYS from
the date of this order if no timely contest is filed, or (2) FORTY-FIVE DAYS from the date of
this order if a timely contest to the affidavit is filed. In the event a contest is filed, the court
reporter responsible for transcribing the record of the hearing on the contest is ORDERED to file
a reporter’s record from the hearing no later than FORTY-FIVE DAYS from the date of this
order.
The clerk of this court is DIRECTED to send a copy of this order and a copy of the
affidavit to the parties, the trial court clerk, the court reporter, and the trial court judge. See TEX.
R. APP. P. 20.1(d)(2).
All other appellate deadlines are SUSPENDED pending further order of this court.
_________________________________
Patricia O. Alvarez, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 27th day of June, 2014.
___________________________________
Keith E. Hottle
Clerk of Court