Lawrence Higgins v. Randall County Sheriffs Office

NO. 07-05-0004-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
AUGUST 22, 2006
______________________________
LAWRENCE HIGGINS,
Appellant
v.
RANDALL COUNTY SHERIFFS OFFICE,
Appellee
_________________________________
FROM THE 251ST DISTRICT COURT OF RANDALL COUNTY;
NO. 50,468C; HON. PATRICK A. PIRTLE, PRESIDING
_______________________________
Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.
Lawrence Higgins appealed an order dismissing his suit for want of prosecution.
In turn, we dismissed his appeal because Higgins failed to pay the requisite filing fee or file
an affidavit of indigency that complied with Texas Rule of Appellate Procedure 20.1. In
turn, the Texas Supreme Court reversed our judgment of dismissal for several reasons.
First, it reiterated that an affidavit of indigency was “no longer a jurisdictional requirement.”
Higgins v. Randall County Sheriff’s Office, No. 05-0095 (Tex. May 26, 2006) citing, In re
J.W., 52 S.W.3d 730 (Tex. 2001). 1 Next, it concluded that because Higgins filed an
affidavit of indigence, he “corrected the defect” (i.e. the omission regarding the payment
of the requisite filing fee).2 Finally, and though it recognized that a court of appeals “could
dismiss the appeal for” “any other formal defect or irregularity in appellate procedure,” it
concluded that we could not use the deficient nature of the affidavit as a basis of dismissal
without first affording Higgins opportunity to amend the instrument. Higgins v. Randall
County Sheriff’s Office, supra.
Upon remand to this court, we directed Higgins, via letter dated July 18, 2006, to
reasonably explain why his affidavit of indigence was untimely.3 So too did we direct him,
via that same missive, “to file an amended affidavit of indigence that complie[d] with Rule
of Appellate Procedure 20.1.”4 Moreover, he was warned that the failure to abide by our
directive “may result in dismissal of the appeal.” In response, he informed the court that
1
See also W ells v. Breton Mill Apartments , 85 S.W .3d 823, 824 (Tex. App.–Amarillo 2001, no pet.)
(wherein this court also held that neither paying a filing fee or tendering an affidavit of indigence is a
jurisdictional prerequisite to perfecting an appeal). Furtherm ore, this court did not dismiss the cause on the
bas is of no jurisdiction.
2
The Supreme Court did not address whether Higgins remained obligated to seek leave to file a
belated affidavit per Tex as Ru le of Appellate Procedure 20 .1(c)(3). No r did it address whether the act of filing
the affidavit more than 15 days after the applicable deadline either equated such a m otion per Verburgt v.
Dorner, 959 S.W .2d 615, 617 (Tex.1997) or otherwise relieved the affiant from requesting an extension and
justifying the need for sam e. See T EX . R. A PP . P. 20.1(c)(3) (granting an appellate court authority to extend
the deadline expressed in Ru le 20.1 (c)(1) if “w ithin 15 days after the deadline for filing the affidavit, the party
files . . . a motion complying with Rule 10.5(b)”). The first affidavit of appellant at bar was mailed some ten
m onths after Higgins tendered his notice of appeal and far outside the 15-day window expressed in Rule
20.1 (c)(3 ).
3
Ap plicable rule mandates that the affidavit be filed “in the trial court with or before the notice of
app eal.” T EX . R. A PP . P. 20.1(c)(1). And, though omitting to tender anything other than a timely notice of
appeal does not deprive us of jurisdiction, it nonetheless provides reason to “act appropriately, including
dismissing the appeal,” ac cording to R ule 25.1(b) of the Texas Ru les of A ppellate P rocedure. (Em phasis
add ed).
4
That Higgins knew of Rule 20.1 is evinced by his citation to it in his initial, yet defective, affidavit of
indigence sub m itted in Ja nua ry of 2005.
2
because he had been granted leave to act as a pauper at trial, he purportedly believed that
no other action was needed to enjoy like status on appeal. Assuming of course that
ignorance of the law constitutes a reasonable explanation for his tardiness, we note that
his legal supposition is inaccurate. See Holt v. F.F. Enterprises, 990 S.W.2d 756, 758
(Tex. App.– Amarillo 1998, pet. denied) (holding that an appellant seeking to act as a
pauper on appeal must comply with Rule 20.1 even though one was filed with the trial court
upon initiation of suit); id. at 759 (holding that one who represents himself is not relieved
from complying with the rules of appellate procedure).5
So too were we sent another “Affidavit of Indigence” along with a copy of a letter he
sent to the Supreme Court.6 And, in the former Higgins asserts that he 1) receives no
“monies from anywhere,” 2) has “no money at this time,” and 3) expects no “money in the
immediate future.” Additionally, the inmate “trust fund” receipt appended to the affidavit
and dated July 29, 2005, illustrates a balance of $0.03.7 (Emphasis added). Yet, nothing
is said of whether he 1) is married, 2) has income available to him through a spouse, 3)
owns real or personal property, and 4) has other assets. These and other topics were
5
Given his four other appellate matters including one wherein the United States 5th Circuit Court of
Ap peals admonished appellant of his abuse of the affidavit of indigence statute, question exists whether he
is una ware of th e req uirem ents set out in the rules of ap pellate proc edu re. Higgins v. Be nne tt, No. 04-20609,
2004 U.S . App . L EX IS 27125 (5 th Cir. Dec. 17, 200 4); Higgins v. W oodburn , No. 07-04-0588-CV, 2005 Tex.
App. L EX IS 240 (Te x. Ap p.–A m arillo Jan uary 6, 2005, no pet.); In re Higgins, No. 07-03-0156-CV, 2003 Tex.
App. L EX IS 2823 (Tex. Ap p.– Am arillo April 2, 2003 ) (orig. proceed ing); In re Higgins, No. 07-03-0157-CV, 2003
Te x. Ap p. L EX IS 3001 (T ex. App.–Am arillo April 2, 2003) (orig. proceeding).
6
In the letter he posits that “the Se venth Court o f Appea ls is igno ring the [Sup rem e] Courts [sic] cite
in its order which states that the affidavit is no longer a requirement.” W e do not read that court’s opinion as
relieving him from tendering an affidavit that com ports with the rules of ap pellate procedu re. Instead, the court
held that w hile com pliance with R ule 20.1 w as not jurisdictio nal, noncom pliance could warrant dism issal.
7
The am ount of m onies held fo r him in that account as of the day he initiate d his appeal (i.e. March
9, 200 4), filed h is first affidavit (i.e. Jan uary 10, 2005), o r tend ered his lates t affidavit (i.e. July 24, 2006) is
unk now n.
3
subjects that Rule 20.1(b) required him to address. TEX . R. APP. P. 20.1(b). And, while the
Supreme Court stated in Higgins that “‘[c]ommon sense tells us that one in [his]
circumstances [i.e. in prison] had no means of obtaining an arm’s length bona fide loan,’”
Higgins v. Randall County Sheriff’s Office, supra, common sense would equally compel
that being in prison does not necessarily mean that the inmate lacks assets, is financially
destitute, or may not need “‘an arm’s length bona fide loan.’”
Moreover, it is implicit from the Supreme Court’s May 26th opinion that though a
belated affidavit may be filed, those entitled to contest it under Rule 20.1(e) should still be
afforded the chance to do so.8 See TEX . R. APP. P. 20.1(e) (stating that the court clerk,
court reporter, and any party to the litigation may challenge the claim of indigence). Yet,
without an affidavit addressing the topics specified in Rule 20.1(b), one entitled to contest
the claim of indigence lacks sufficient information to meaningfully assess whether to proffer
a challenge.
In sum, Higgins again failed to comply with a directive of this court as well as with
applicable rules of appellate procedure. This occurred despite our affording him
opportunity to do so and notification of the consequences should he not. Moreover,
nothing before us depicts any inability on his part to do that which we asked. Given this,
we heed the admonition in Higgins and dismiss the appeal due to appellant’s
noncompliance with the “defect and irregularity in appellate procedure.” Higgins v. Randall
County Sheriff’s Office, supra.
8
W e derive this from the court’s statement that “[b]ecause an affidavit of indigence discharged the
filing-fee requ irem ent unless a contest to it was sustained . . . Higgins corrected the defect within the allotted
time.” (Em phasis added). If it did not intend to afford anyone the chance to dispute the claim of indigence,
there was no reason to include the italicized passage within its opinion.
4
Accordingly, the appeal is dismissed. TEX . R. APP. P. 25.1(b) & 42.3(c).
Per Curiam
5