Annette S. Muecke v. James Woodley--Appeal from 288th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-03-00347-CV

Annette S. MUECKE,

Appellant

v.

James WOODLEY,

Appellee

From the 288th Judicial District Court, Bexar County, Texas

Trial Court No. 98-CI-10218

Honorable David Berchelmann, Judge Presiding

PER CURIAM

Sitting: Alma L. L pez, Chief Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: October 8, 2003

REVERSING ORDER SUSTAINING CONTEST TO AFFIDAVIT OF INDIGENCE

This is an appeal from the trial court's order sustaining James Woodley's contest to Annette S. Muecke's affidavit of indigence. Muecke asserts the trial court erred in sustaining Woodley's contest because the trial court signed the order more than ten days after Woodley filed his contest. We agree and therefore reverse the trial court's order.

ABILITY TO PAY COSTS ON APPEAL

A party may appeal as an indigent by filing an affidavit of indigence pursuant to Texas Rule of Appellate Procedure 20.1. See Tex. R. App. P. 20.1. If the court reporter or another party files a contest, the party who filed the affidavit must prove her indigence. See White v. Bayless, 40 S.W.3d 574, 576 (Tex. App.--San Antonio 2001, pet. denied). A party must timely file his contest within ten days after an affidavit is filed or waive the contest. See Tex. R. App. P. 20.1(f). To sustain a contest, the trial court must hold a hearing and sign an order within ten days of the date the contest is filed. See Tex. R. App. P. 20.1(i)(2,4). If the trial court does not sign a written order extending the deadline or sustaining the contest: (1) the contest is overruled by operation of law on the eleventh day after the filing of the contest; (2) the allegations in the affidavit are deemed true; and (3) the party may proceed without advance payment of costs. See Tex. R. App. P. 20.1(i)(4).

Muecke filed her affidavit of indigence on May 7, 2003. Woodley filed his contest on June 3, 2003, more than ten days after Muecke filed her affidavit. Woodley's untimely filing constitutes a waiver of his ability to contest the affidavit. Nevertheless, the trial court held a hearing on the contest on June 11, 2003, and signed an order sustaining Woodley's contest on July 10, 2003. The record does not contain a signed order extending the time to hold a hearing. Because the trial court signed its order sustaining the contest outside the time period prescribed by Rule 20.1(i)(4), the allegations in Muecke's affidavit are deemed as true. Accordingly, Muecke is entitled to proceed on appeal without payment of costs.

CONCLUSION

We reverse the trial court's order sustaining the contest to Muecke's affidavit of inability to pay court costs.

PER CURIAM