Thomas Davis v. Discount Tire Co. of Texas, Inc., Dill Air Controls Products, LLC and Bridgestone Americas Tire Operation LLC.

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
MEMORANDUM ORDER
Appellate case name: Thomas Davis v. Discount Tire Co. of Texas, Inc., Dill Air Controls
Products, LLC, and Bridgestone Americas Tire Operation LLC
Appellate case number: 01-12-00187-CV
Trial court case number: 2010-14448
Trial court: 80th District Court of Harris County, Texas
On March 12, 2012, appellant Thomas Davis filed an affidavit of indigence in the trial
court in the above-referenced appeal. On March 15, 2012 the district clerk timely filed a contest
to the affidavit. See TEX. R. APP. P. 20.1(e). Within ten days after the contest was filed, the trial
court was required either to conduct a hearing or to sign an order extending the time to conduct
the hearing. See TEX. R. APP. P. 20.1(i)(2)-(3). To effectively sustain the contest, the trial court
was also 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 on indigence does not contain an order
sustaining the contest. Because the court failed to rule in writing on the contest within the time
provided by the rule, the allegations of the affidavit must be taken as true, and appellant is
entitled to proceed without advance payment of the filing fee. See TEX. R. APP. P. 20.1(i)(4).
However, although appellant is entitled to proceed without advance payment of the filing
fee, appellant is only entitled to a free record on appeal if appellant additionally meets the
statutory requirements of Texas Civil Practice and Remedies Code section 13.003. See TEX.
CIV. PRAC. & REM. CODE ANN. § 13.003(a) (West 2002). A trial court clerk and court reporter
shall provide a record for appeal without cost only if:
(1) an affidavit of inability to pay the cost of the appeal has been filed under the
Texas Rules of Appellate Procedure; and
(2) the trial judge finds:
(A) the appeal is not frivolous; and
(B) the statement of facts and the clerk’s transcript is needed to decide the
issue presented by the appeal.
Id. Thus, to obtain a free record on appeal, appellant must have both filed an affidavit of
indigence under the Rules of Appellate Procedure and obtained certain findings from the trial
court. Appellant bears the burden to request these findings. See Schlapper v. Forest, 272
S.W.3d 676, 678 (Tex. App.—Austin 2008, pet. denied). The clerk’s record on indigence does
not reflect any request by appellant for findings regarding frivolousness or the necessity of a
statement of facts and clerk’s transcript. By failing to request or obtain the findings required by
Civil Practice and Remedies Code section 13.003, appellant has failed to meet the statutory
requirements for receiving a free record and has failed to preserve any error upon which we
could reverse the trial court’s order. See TEX. CIV. PRAC. & REM. CODE ANN. § 13.003(a)(2);
TEX. R. APP. P. 33.1; Schlapper, 272 S.W.3d at 678.
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 the filing
fee in this Court.
Appellant is ORDERED to file within 30 days of the date of this order proof that
appellant has paid or made arrangements to pay the clerk’s fee for preparing the clerk’s record or
this Court may dismiss the appeal for want of prosecution. See TEX. R. APP. P. 37.3(b); 42.3(b).
Appellant is ORDERED to file within 30 days of the date of this order proof that
appellant has paid or made arrangements to pay the court reporter for preparing the record or the
Court might consider and decide those issues or points that do not require a reporter’s record.
See TEX. R. APP. P. 37.3(c).
Appellant’s brief is ORDERED filed with this Court within 30 days of the date the
complete record is received in this Court. Appellees’ briefs, if any, must be filed within 30 days
of the date Appellant’s brief is filed.
Judge’s signature: /s/ Justice Michael Massengale
 Acting individually ☐ Acting for the Court
Panel consists of __________________________________________________
Date: July 31, 2012