Gerald Allen Perry ( 2012 )

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER
Appellate case name: Gerald Allen Perry v. John B. Holmes
Appellate case number: 01-10-01072-CV
Trial court case number: 2009-62814
Trial court: 151st District Court of Harris County
On January 3, 2011, appellant, Gerald Allen Perry, filed an affidavit of indigence in this
court in the above-referenced appeal. On July 25, 2011, we referred the affidavit to the trial
court. See TEX. R. APP. P. 20.1(c)(1), (h)(4). On July 29, 2011, the district clerk timely filed a
contest to the affidavit.1 See TEX. R. APP. P. 20.1(e). Therefore, the trial court was required to
either conduct a hearing or sign an order extending the time to conduct the hearing by August 8,
1
In the contest, the district clerk argues that appellant failed to include all of the
information required by Texas Rule of Appellate Procedure 20.1(b) and failed to file the
affidavit or declaration and the certified copy of his trust account statement required by
Texas Civil Practice and Remedies Code section 14.004. See Act of May 19, 1995, 74th
Leg., R.S., ch. 378, § 2, 1995 Tex. Gen. Laws 2921, 2922–23, amended by Act of June
29, 2011, 82nd Leg., 1st C.S., ch. 3, §§ 12.01, 12.02, 2011 Tex. Sess. Law Serv. 116, 161
(West) (current version at TEX. CIV. PRAC. & REM. CODE ANN. §§ 14.002, 14.004(a), (c)
(West Supp. 2011)); TEX. R. APP. P. 20.1(b). An affidavit of indigence need not,
however, specifically address all the items enumerated in Rule 20.1(b), so long as it
provides sufficient information to prove by a preponderance of the evidence that the party
is unable to pay costs on appeal. See In re C.H.C., 331 S.W.3d 426, 429 (Tex. 2011);
Moreno v. Perez, 363 S.W.3d 725, 742 (Tex. App.—Houston [1st Dist.] 2011, no pet.).
Further, chapter 14 of the Civil Practice and Remedies Code was inapplicable to appellate
court cases when appellant filed his affidavit of indigence. See Act of May 19, 1995,
74th Leg., R.S., ch. 378, § 2, 1995 Tex. Gen. Laws 2921, 2922, amended by Act of June
29, 2011, 82nd Leg., 1st C.S., ch. 3, § 12.01, 2011 Tex. Sess. Law Serv. 116, 161 (West)
(current version at TEX. CIV. PRAC. & REM. CODE ANN. § 14.002 (West Supp. 2011));
Jackson v. Tex. Bd. of Pardons & Paroles, 178 S.W.3d 272, 277 (Tex. App.—Houston
[1st Dist.] 2005, no pet.); Nabelek v. Garrett, 94 S.W.3d 648, 649 (Tex. App.—Houston
[14th Dist.] 2002, order, pet. dism’d w.o.j.).
2011. See TEX. R. APP. P. 20.1(i)(2). Further, to properly sustain the contest, the trial court was
required to sign an order sustaining the contest within the prescribed period for the hearing. See
TEX. R. APP. P. 20.1(i)(4). The clerk’s record does not reflect that the trial court signed an order
extending the period for the hearing or ruled on the contest by August 8, 2011. See id. Instead,
the record reflects that the trial court signed both an order extending the time for holding the
hearing and an order sustaining the contest on August 16, 2011—eight days after the deadline
had expired. See TEX. R. APP. P. 20.1(i)(2). Appellant, in a document styled “Appellant’s
Request for Extension of Time to Perfect Appeal,” challenged the trial court’s ruling on the
contest to his affidavit of indigence. Because the order extending the time for holding a hearing
and the order sustaining the contest were signed after the 10 days had expired, the trial court was
without authority to sustain the contest and abused its discretion by signing the orders. See
Ramirez v. Packer, 807 S.W.2d 728, 729 (Tex. 1991); In re VanDeWater, 966 S.W.2d 730, 734
(Tex. App.—San Antonio 1998, no pet.). Accordingly, the allegations in the affidavit are
deemed true, and appellant is entitled to proceed without advance payment of costs.2 TEX. R.
APP. P. 20.1(i)(4).
The Clerk of this Court is ORDERED to make an entry in this Court’s records that
appellant is indigent and is allowed to proceed on appeal without advance payment of costs.
It is further ORDERED that the District Clerk file with this Court, within 30 days of the
date of this order and at no cost to appellant, a clerk’s record containing the items specified in
Texas Rule of Appellate Procedure 34.5(a). See TEX. R. APP. P. 20.1(k).
Appellant’s brief is ORDERED filed with this Court within 30 days after the date the
clerk’s record is filed.3 See TEX. R. APP. P. 38.6(a). Appellee’s brief, if any, must be filed within
30 days after the date the appellant’s brief is filed. See TEX. R. APP. P. 38.6(b).
Judge’s signature: /s/ Justice Jim Sharp
 Acting individually  Acting for the Court
Date: July 19, 2012
2
Appellant filed an affidavit of indigence in the trial court on August 15, 2011, which the
district clerk timely contested on August 22, 2011 and the trial court timely sustained on
August 31, 2011. Nevertheless, because the rules only provide for one affidavit of
indigence to be filed, the first affidavit filed by appellant controls the deadlines for filing
and ruling on a contest. See, e.g., Ramirez v. Packer, 807 S.W.2d 728, 729 (Tex. 1991)
(holding that in case where multiple contests to affidavit of indigence are filed, filing of
first contest fixes time within which trial court must rule on contests); In re Velez-Uresti,
361 S.W.3d 200, 206 (Tex. App.—El Paso 2012, pet. denied) (stating that rules do not
contemplate sequential or successive filing of affidavits of indigence).
3
The court reporter informed us on August 2, 2011 that no reporter’s record exists.