GLENDA N. DODSON,FROM A DISTRICT COURT APPELLANT, v. STEVENS TRANSPORT, A Division of Stevens Foods, Inc., APPELLEE

COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
 
NO. 05-88-01019-CV
 
GLENDA N. DODSON,FROM A DISTRICT COURT
 
        APPELLANT,
 
v.
 
STEVENS TRANSPORT, A Division of
Stevens Foods, Inc.,
 
        APPELLEE.OF DALLAS COUNTY, TEXAS
 
 
 
BEFORE THE COURT EN BANC
DISSENTING OPINION BY JUSTICE BAKER
AUGUST 31, 1989
        I respectfully dissent to the majority's conclusion that under the peculiar facts of this case the failure of the appellant to notify the court reporter of the filing of her indigency affidavit was immaterial.
        The majority takes pains to point out that this is a summary judgment appeal. The majority also states that no statement of facts has been filed, and the majority cannot find any indication that appellant requested a statement of facts from the court reporter or intended to do so. I presume that these are the peculiar facts of the case upon which the majority relies because the majority then holds that it is not necessary to serve notice upon the court reporter that an affidavit of inability to pay cost has been filed. See TEX. R. APP. P. 40(3)(B). The majority's conclusion is bottomed on Jones v. Stayman, 747 S.W.2d 369 (Tex. 1987), admonishing the intermediate appellate courts to liberally construe the appellate rules in favor of a right to appeal. The majority finds solace in the fact that the El Paso court has recently reached an identical conclusion under facts similar to those found here. See Sanders v. Texas Employers Ins. Ass'n, No. 08-89-99-CV (Tex. App.--El Paso, n.w.h.) (not yet reported). I note that the El Paso court's decision is likewise bottomed on Jones v. Stayman.
        In my view, to carve out an exception in summary judgment cases in the name of liberality flies in the face of the plain language of the rule.
        Rule 40(a)(3)(B) of the Texas Rules of Appellate Procedure provides:
        The appellant or his attorney shall give notice of the filing of the affidavit to the opposing party or his attorney and to the court reporter of the court where the case was tried within two days after the filing; otherwise, he shall not be entitled to prosecute the appeal without paying the cost or giving security therefor.
TEX. R. APP. P. 40(a)(3)(B) (emphasis added). It has been held that an appellant is not entitled to prosecute an appeal without paying or securing the costs if the appellant failed to comply with the notice requirements of rule 40(a)(3)(B). See Fellowship Missionary Baptist Church v. Sigel, 749 S.W.2d 186, 188 (Tex. App.--Dallas 1988, no writ); Matlock v. Allstate Ins. Co., 729 S.W.2d 960 (Tex. App.--Corpus Christi 1987, no writ); Bantuelle v. Renfroe, 620 S.W.2d 635, 639 (Tex. Civ. App.--Dallas 1981, writ ref'd n.r.e.). The plain language of the rule supports this conclusion.
        In this case there is no dispute as to the fact that appellant failed to notify the court reporter of the filing of her indigency affidavit. Therefore, under the plain language of the rule, she is not entitled to prosecute the appeal unless she pays the costs or gives security therefor. Since she has not timely done so, I would hold that appellant is not entitled to further prosecute her appeal, and I would dismiss it.
                                                                                                                                                                    ________________ ___________
                                                          JAMES A. BAKER
                                                          JUSTICE
PUBLISH
TEX. R. APP. P. 90
 
88-01019.DF
 
Chief Justice Enoch and Justices McClung and Burnett join in this dissent.
 
 
File Date[08-31-89]
File Name[881019DF]