Virgil Lee Greenwood v. Fred M. Heacock--Appeal from 333rd District Court of Harris County

Dismissed and Memorandum Opinion filed March 31, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-05-00077-CV

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VIRGIL LEE GREENWOOD, Appellant

V.

FRED M. HEACOCK, Appellee

On Appeal from the 333rd District Court

Harris County, Texas

Trial Court Cause No. 01-52840

M E M O R A N D U M O P I N I O N

This is an appeal from a judgment signed October 5, 2004. No clerk=s record has been filed. The clerk responsible for preparing the record in this appeal informed the court appellant did not make arrangements to pay for the record.

On February 22, 2005, notification was transmitted to all parties of the Court's intent to dismiss the appeal for want of prosecution unless, within fifteen days, appellant paid or made arrangements to pay for the record and provided this court with proof of payment. See Tex. R. App. P. 37.3(b).

Appellant has filed several responses. On February 24, 2005, appellant filed a declaration of inability to pay costs. On March 1, 2005, appellant filed a letter stating that he had mailed a copy of his motion regarding inability to pay the costs of appeal to the district court. On March 16, 2005, appellant filed a letter attaching a notice that his affidavit of indigence was filed with the Harris County District Clerk on March 7, 2005.

Rule 20.1 contains the procedure for asserting indigence on appeal. The party filing an affidavit of indigence must file the affidavit in the trial court with or before the notice of appeal. Tex. R. App. P. 20.1(c)(1). In this case, appellant failed to timely file an affidavit of indigence with the trial court. Because appellant has not established his entitlement to proceed without advance payment of costs and has not provided proof of payment for the clerk=s record, we must dismiss this appeal for want of prosecution.

Furthermore, on March 7, 2005, the court issued a notice of nonpayment of the filing fee on appeal. Appellant=s response to this notice was that he had filed an affidavit of indigence in the trial court. However, as discussed above, this affidavit was not timely filed. Accordingly, we may also dismiss this appeal for nonpayment of the filing fee. See Tex. R. App. P. 42.3(c) (allowing involuntary dismissal of case because appellant has failed to comply with notice from clerk requiring response or other action within specified time).

Accordingly, the appeal is ordered dismissed.

PER CURIAM

Judgment rendered and Memorandum Opinion filed March 31, 2005.

Panel consists of Justices Yates, Anderson, and Hudson.