John Carl Sutterley v. Texas Department of Criminal Justice - State Jail Division , University of Texas Medical Branch and Hobart Corporation--Appeal from 133rd District Court of Harris County

Dismissed and Memorandum Opinion filed March 22, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-06-00934-CV

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JOHN CARL SUTTERLEY, Appellant

V.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE C STATE JAIL DIVISION, UNIVERSITY OF TEXAS MEDICAL BRANCH, and HOBART CORPORATION, Appellees

On Appeal from the 133rd District Court

Harris County, Texas

Trial Court Cause No. 2006-23810

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 2, 2006. The notice of appeal was filed October 20, 2006. To date, the appellate filing fee of $125.00 has not been paid. On November 29, 2006, the court notified appellant that the filing fee was due. No response was filed. On December 1, 2006, the Harris County District Clerk=s office notified this court that appellant had not paid for preparation of the clerk=s record.

On November 8, 2006, appellant filed a motion to proceed in forma pauperis. Even if a party proceeded as a pauper in the trial court, a new affidavit of indigence must be filed in the trial court after judgment for purposes of appeal. Holt v. F.F. Enterprises, 990 S.W.2d 756, 758 (Tex. App.CAmarillo 1998, pet. denied). A free record will be provided on appeal only if an affidavit of inability to pay the cost of the appeal is filed under Texas Rule of Appellate Procedure 20 and no contest is filed or the contest is not sustained by a written order. Tex. R. App. P. 20.1(a). Because appellant=s motion did not comply with the procedural or substantive requirements of Rule 20, we ordered appellant to file an affidavit of indigence containing the information set forth in Texas Rule of Appellate Procedure 20 in the trial court on or before December 29, 2006, and then to have our record supplemented with the affidavit and any contest and ruling thereon. See Tex. R. App. P. 44.3; Higgins v. Randall County Sheriff's Office, 193 S.W.3d 898, 899(Tex. 2006) (holding appeal should not be dismissed for defects in procedure without allowing reasonable time to correct defects).

The Harris County District Clerk=s office notified this court that appellant failed to file an affidavit of indigence with the trial court in accordance with this court=s order. Therefore, appellant failed to establish indigency for appeal. Accordingly, this court ordered appellant to pay the appellate filing fee in the amount of $125.00 and to provide proof of payment for preparation of the clerk=s record in this appeal on or before March 2, 2007. Our order notified appellant that if he failed to comply with this order, the appeal would be dismissed. See Tex. R. App. P. 42.3. Appellant filed a response to this court=s order on February 28, 2007. His response, containing a motion to proceed in forma pauperis, does not comply with our order, however. Appellant=s affidavit of indigence is required to be filed in the trial court so that the district clerk and court reporter, if any, have an opportunity to contest the affidavit. See Tex. R. App. P. 20.1(c). Despite being provided an opportunity to correct his defective filing, appellant has failed to comply with the procedural prerequisites to be entitled to appeal without advance payment of costs.

To date, the appellate filing fee has not been paid. See Tex. R. App. P. 5 (requiring payment of fees in civil cases unless indigent); Tex. R. App. P. 20.1 (listing requirements for establishing indigence); see also Order Regarding Fees Charged in Civil Cases in the Supreme Court and the Courts of Appeals, Misc. Docket No. 98-9120 (Tex. Jul. 21, 1998) (listing fees in court of appeals); Tex. Gov=t Code Ann. ' 51.207 (Vernon 2005) (same). Moreover, no record has been filed in this appeal. The clerk responsible for preparing the record informed the court appellant did not make arrangements to pay for the record. See Tex. R. App. P. 37.3(b) (permitting dismissal for want of prosecution when appellant fails to pay or make arrangements to pay for the record).

Accordingly, the appeal is ordered dismissed.

PER CURIAM

Judgment rendered and Memorandum Opinion filed March 22, 2007.

Panel consists of Chief Justice Hedges and Justices Fowler and Edelman.