Edward Longoria v. K and K Tree and Tractor

In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-16-00037-CV
____________________
EDWARD LONGORIA, Appellant
V.
K AND K TREE AND TRACTOR, Appellee
_______________________________________________________ ______________
On Appeal from the 435th District Court
Montgomery County, Texas
Trial Cause No. 14-07-07676-CV
________________________________________________________ _____________
ORDER
Edward Longoria filed a declaration of inability to pay costs in the appellate
court and requested that a clerk’s record be prepared. See Tex. R. App. P.
20.1(c)(1), (3). The appellee filed a contest. See Tex. R. App. P. 20.1(e). When an
affidavit of indigence is filed in the appellate court and a contest is filed, the Court
may refer the matter to the trial court. See Tex. R. App. P. 20.1(h)(4).
It is, therefore, ORDERED that the appeal is abated and the case is
remanded to the trial court for a determination of the appellant’s indigence. The
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trial court shall hear evidence and grant the appropriate relief. 1 See Tex. R. App. P.
20.1(h)(4). The trial court shall set a hearing and notify the parties and the court
reporter of the setting. The appellant must be provided an opportunity to participate
in the hearing, in person or by telephone or through any reasonably effective form
of remote access. The trial court shall either conduct a hearing within ten days of
receiving the referred contest from this Court or within that time sign an order
extending the hearing date for not more than twenty days. See Tex. R. App. P.
20.1(i) (1), (2)(B), (3). Unless the trial court signs an order sustaining the contest
within the period set for the hearing, the affidavit’s allegations will be deemed true.
See Tex. R. App. P. 20.1(i)(4). If the trial court determines that the appellant is not
indigent because he owns assets that are sufficient to pay the costs of an appeal, the
trial court shall determine whether those assets are in the control of the appellee
and shall determine whether sufficient funds to pay the costs of an appeal have
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The appellee argues in part that the appellant should be denied a free
record because he failed to timely file his notice of appeal and failed to comply
with the procedure for obtaining additional time to perfect an appeal. See generally
Tex. R. Civ. P. 306a.5. In connection with the hearing herein ordered, the trial
court may, but is not required to, make an order concerning the date the appellant
received notice of the trial court’s judgment. See Tex. R. App. P. 4.5(d). On March
7, 2016, the appellant submitted a declaration that he delivered a motion for
reconsideration to the prison authorities for mailing on December 17, 2015. See
Warner v. Glass, 135 S.W.3d 681 (Tex. 2004). The trial court may receive
evidence concerning the date the appellant submitted his filings to the prison mail
system, but the Court of Appeals shall determine whether the appellant timely
perfected his appeal.
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been deposited in the appellant’s inmate account. A supplemental clerk’s record
containing any orders signed by the trial court in connection with the contest and
any documents filed with the trial court in connection with the contest, together
with a reporter’s record of any hearing conducted pursuant to this Order, shall be
filed with the Court of Appeals by June 13, 2016.
ORDER ENTERED May 12, 2016.
PER CURIAM
Before McKeithen, C.J., Kreger and Horton, JJ.
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