DocketNumber： 07-05-00004-CV
Filed Date： 7/15/2008
Status： Precedential
Modified Date： 9/8/2015
NO. 07-05-0004-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
JULY 15, 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
_______________________________
Order on Remand from the Supreme Court
_______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
The third chapter of this appeal starts with the second reversal and remand from the Texas Supreme Court in this cause. The subject remains the same, i.e. whether Lawrence Higgins may prosecute this appeal without paying costs. His alleged pauper’s affidavit was both untimely and defective when compared with the requirements of Texas Rule of Appellate Procedure 20.1. Nonetheless, the Supreme Court concluded that the cause could not be dismissed due to the defects since “no challenge was made to his assertion of indigence . . . .” Higgins v. Randall County Sheriff’s Office, No. 06-0917, 2008 Tex. Lexis 455 at *12 (Tex. May 16, 2008) (Higgins II). We recognize the opinion as binding but are compelled to abate the matter for further hearing because the factual premise upon which it was based is missing. Simply put, while the record contains no document illustrating that anyone contested Higgins’ claim of indigence, no one was given the opportunity to do so because he did not file the affidavit in a manner comporting with the rules of procedure.
The Texas Rules of Appellate Procedure contemplate two instances wherein an appellant may seek to proceed without paying costs. One involves an attempt to perfect an actual “appeal” from a trial court’s ruling. Tex. R. App. P. 20.1(c)(1). The other encompasses “any other appellate court proceeding.” Id. 20.1(c)(2). Under the former, an appellant “must file the affidavit of indigence in the trial court [or with the trial court clerk] with or before the notice of appeal.” Id. 20.1(c)(1). And, “[i]f the affidavit of indigence is filed with the trial court clerk under (c)(1), the clerk must [then] promptly send a copy of [it] to the appropriate court reporter.” Id. 20.1(d)(1). That court reporter, as well as the clerk and any party, then has ten days “after the date when the affidavit was filed . . . in the trial court” to contest the affidavit. Id. 20.1(e).
In all proceedings other than actual appeals, the affidavit must be filed with the appellate clerk or court “in which the proceeding is filed, with or before the document seeking relief.” Id. 20.1(c)(2). If the affidavit is so filed “under (c)(2),” then the appellate clerk must forward the document to the trial court clerk and appropriate court reporter and establish a deadline by which those interested may contest it. Id. 20.1(d)(2)(A) & (B). If no one contests it, then the allegations contained in the affidavit will be deemed true and the affiant will be allowed to proceed without the advance payment of costs. Id. 20.1(f).
Here, however, Higgins neglected to file his affidavit with the trial court or its clerk even though he was attempting to perfect an appeal. Thus, that clerk had no opportunity to forward it to the reporter or litigants for review and possible contest. Instead, the item was belatedly filed with this court contrary to the rules of appellate procedure. And, because we determined that so filing the affidavit violated the rules of procedure, we afforded it no authority and dismissed the appeal. Higgins v. Randall County Sheriff’s Office, No. 07-05-0004-CV, 2005 Tex. App. Lexis 495 (Tex. App.–Amarillo January 29, 2005). Nevertheless, the Supreme Court told us that the document could not be ignored, and before the cause could be dismissed, the affiant had to be given opportunity to amend it to comport with Rule 20.1. Higgins v. Randall County Sheriff’s Office, 193 S.W.3d 898, 900 (Tex. 2006) (Higgins I).
On remand, we afforded appellant opportunity to amend per the directive in Higgins I. Yet, the item we received in response failed to comport with Rule 20.1(b). And, because it did, we mentioned that anyone assessing whether to contest it lacked the requisite information to make a meaningful decision. Higgins v. Randall County Sheriff’s Office, No. 07-05-0004-CV, 2006 Tex. App. Lexis 7423 (Tex. App.–Amarillo August 22, 2006). So, we again dismissed per the authority extended by the Supreme Court in Higgins I. And, this meant that the trial court clerk and reporter were again denied the chance to review Higgins’ claim of impoverishment.
Because no one was afforded the opportunity to contest the affidavit and will not be afforded it if Higgins I and the rules of appellate procedure are enforced as written, we are compelled to correct the omission. Thus, we invoke Texas Rule of Appellate Procedure 2 and, in cases such as these, modify Rule 20.1 as follows. The clerk of this court is directed to forward a copy of Higgins’ current pauper’s affidavit to the appropriate trial court clerk and court reporter as well as to all parties of record and inform each that they have the right to contest the validity of that affidavit and Higgins’ purported claim of indigence, if they so choose. Their contest, if any, must be filed in writing with the clerk of this court on or before August 14, 2008. If a contest is so received, then the cause will be abated and remanded to the trial court for hearing in accordance with Texas Rule of Appellate Procedure 20.1(h)(4) and (i). This procedure best balances the interests of all involved and potentially supplies the factual element underlying the Supreme Court’s holding in Higgins II .
Per Curiam
Publish.