John Donohue v. Martha Donohue ( 2014 )

/s
Fourth Court of Appeals
San Antonio, Texas
May 29, 2014
No. 04-14-00265-CV
John DONOHUE,
Appellant
v.
Martha DONOHUE,
Appellee
From the 288th Judicial District Court, Bexar County, Texas
Trial Court No. 2012CI19573
Honorable David A. Canales, Judge Presiding
ORDER
On April 21, 2014, appellant filed a notice of appeal from the trial court’s October 8,
2013 judgment. 1 On May 13, 2014, appellant filed an affidavit of inability to pay costs in this
court. Appellant did not file his affidavit in the trial court. We construed the affidavit filed in
this court as a motion for extension of time to file the affidavit in the trial court. Although the
affidavit was filed outside the fifteen-day deadline set forth in Rule 20.1(3), an untimely affidavit
of indigence can be “adequate to fulfill the fundamental purpose of Rule 20.1.” Higgins v.
Randall County Sheriff’s Office, 257 S.W.3d 684 (Tex. 2008). Accordingly, we granted the
motion to extend time to file an affidavit of inability to pay costs.
As a result, we ordered the clerk of this court to send copies of the affidavit and this order
to the district clerk, the court reporter, and all parties. See TEX. R. APP. P. 20.1(d)(2). We further
ordered that if the clerk or the court reporter intended to file a contest to the affidavit of
indigence, they were required to file such contest in this court on or before May 27, 2014. No
contest was filed. Accordingly, in the absence of a contest, appellant is presumed indigent.
On May 23, 2014, the district clerk filed a notice of late record in which she stated the
clerk’s record was not filed because appellant had not paid for the record and was not entitled to
the record without payment. This is now incorrect given that no contest has been filed. As noted
above, appellant is now presumed indigent, and therefore, appellant is entitled to both the clerk’s
record and the reporter’s record without payment for same.
1
A motion to extension of time to file the notice of appeal is pending. This court is waiting for the clerk’s record to
be filed prior to ruling on the extension.
Accordingly, we ORDER the district clerk to file the clerk’s record in this court on or
before July 1, 2014. We remind the clerk appellant is entitled to the record without payment for
same.
We order the clerk of this court to serve a copy of this order on all parties, all counsel,
the district clerk, and the court reporter.
_________________________________
Marialyn Barnard, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 29th day of May, 2014.
___________________________________
Keith E. Hottle
Clerk of Court