Robert Keith Romero v. Betty Leila Romero (Martinez)--Appeal from 288th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-03-00777-CV
Robert K. ROMERO,
Appellant
v.
Betty L. Romero MARTINEZ,
Appellee
From the 288th Judicial District Court, Bexar County, Texas
Trial Court No. 1998-CI-09292
Honorable John J. Specia, Jr., Judge Presiding

PER CURIAM

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Paul W. Green, Justice

Delivered and Filed: March 24, 2004

DISMISSED

On December 16, 2003, we ordered appellant to provide written proof to this court that either (1) the clerk's fee had been paid or arrangements had been made to pay the clerk's fee; or (2) appellant is entitled to appeal without paying the clerk's fee. On December 22, 2003, appellant responded, stating that he is entitled to appeal without paying a fee and that he was informed by the district clerk's office that he was not required to file an affidavit of inability in relation to his appeal.

On January 7, 2004, we issued an order noting that Rule 20.1(c) strictly requires that an appellant file an affidavit of indigency in the trial court with or before the notice of appeal and that this court has previously refused to recognize any exception to this requirement. Ford v. Whitehead, 2 S.W.3d 304, 306 (Tex. App.--San Antonio 1999, no pet.). Based on appellant's response and our review of the clerk's record filed in this appeal, it appeared to this court that no timely affidavit of indigency was filed in the trial court in relation to this appeal; therefore, appellant was not entitled to appeal without paying the required fees. (1)

Before we could issue our order, however, the trial court clerk filed the clerk's record, making the issue regarding payment of the clerk's fee moot.

In the January 7, 2004 order, however, we noted that two payment issues remained pending before the court. One of those issues was appellant's failure to pay this court's fee for filing an appeal in the amount of $125.00. Because our record contained no evidence that appellant was excused by statute or rule from paying the filing fee, see Tex. R. App. P. 5, 20, we ordered appellant to provide proof that the filing fee had been paid. We stated that if appellant failed to respond within the time provided, this appeal would be dismissed for failure to pay the filing fee. See Tex. R. App. P. 5, 42.3(c).

On February 9, 2004, appellant filed a motion for reconsideration of our prior order. In the motion, appellant stated that he filed an affidavit of indigence in the trial court on August 25, 2003, before filing his notice of appeal on October 10, 2003. The affidavit of indigence appellant claimed to have been filed did not appear in the clerk's record or on the docket sheet contained in the clerk's record. Appellant requested, however, that we order the trial court clerk to file a supplemental clerk's record containing the affidavit of indigence that he filed on August 25, 2003.

On February 17, 2004, we ordered the trial court clerk to file a supplemental clerk's record containing: (1) the affidavit of indigence appellant claimed to have been filed on August 25, 2003; or (2) a certification stating that after a diligent search of the records filed in the underlying cause, no affidavit of indigence was filed on August 25, 2003. On February 27, 2004, the trial court clerk filed a supplemental clerk's record containing the affidavit of indigence filed on August 25, 2003; however, the trial court clerk explained that the affidavit was filed in relation to a motion for enforcement of court's orders that was filed in the trial court, not in relation to the notice of appeal.

In order to be entitled to appeal without paying fees, a new affidavit of indigence must be filed in the trial court after judgment for purposes of appeal. See Holt v. F. F. Enterprises, 990 S.W.2d 756 (Tex. App.--Amarillo 1998, pet denied); see also Dykes v. Cendant Mortg. Corp., 2003 WL 1964195, *2 n.1 (Tex. App.--San Antonio 2003, no pet.) (not designated for publication); In re J.A.G., 18 S.W.3d 772, 773 n.1 (Tex. App.--San Antonio 2000, no pet.). The order appellant seeks to appeal was signed by the trial court on September 22, 2003. Because our record reflects that appellant failed to file a new affidavit of indigence after the trial court entered the order being appealed in this case, this appeal is dismissed for failure to pay the filing fee. See Tex. R. App. P. 5, 42.3(c).

PER CURIAM

1. We note that an affidavit of inability to pay costs was filed in this court on October 20, 2003; however, the clerk's record indicates that this document was not filed in the trial court. An affidavit filed with the clerk of the court of appeals does not satisfy rule 20.1(c)(1)'s requirements. See Dykes v. Cendant Mortg. Corp., 2003 WL 1964195, at *2 n. 1 (Tex. App.--San Antonio 2003, no pet.) (not designated for publication); Holt v. F.F. Enters., 990 S.W.2d 756, 758-59 (Tex. App.--Amarillo 1998, pet. denied).