Joyce E. Knowles v. Nathaniel Mack, Jr. and Margaret Marie Mack--Appeal from 37th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-04-00422-CV
Joyce KNOWLES,
Appellant
v.
Nathaniel MACK, Jr. and Margaret Mack,
Appellees

From the 37th Judicial District Court, Bexar County, Texas
Trial Court No. 2003-CI-05332
Honorable Patrick J. Boone, Judge Presiding
Opinion on Appeal of Order Sustaining
Contest to Affidavit of Indigence

Opinion by: Sarah B. Duncan, Justice

Sitting: Sarah B. Duncan, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: August 18, 2004

ORDER SUSTAINING CONTEST TO AFFIDAVIT OF INDIGENCE REVERSED

Joyce Knowles appeals the trial court's order sustaining the court reporter's contest to Knowles' affidavit of indigence. Because the contest was not timely filed, we reverse the trial court's order and order that Knowles may proceed without advance payment of costs.

A party who cannot pay the costs of appeal in a civil case may seek to proceed without advance payment of costs by timely filing a notice of appeal and an affidavit of indigence. Tex. R. App. P. 20.1(a). The affidavit must be filed in the trial court with or before the notice of appeal and the trial court clerk must promptly send a copy of the affidavit to the appropriate court reporter. Id. Rules 20.1(c)(1), (d). Any party may challenge the claim of indigence by filing a contest to the affidavit within ten days after the date the affidavit was filed in the trial court. Id. Rule 20.1(e). If no contest is timely filed, "no hearing will be conducted, the affidavit's allegations will be deemed true, and the party will be allowed to proceed without advance payment of costs." Id. Rule 20.1(f).

The trial court signed the final judgment on March 30, 2004, and Knowles timely filed a motion for new trial. Her notice of appeal was therefore due June 28, 2004. See Tex. R. Civ. P. 329b(g); Tex. R. App. P. 26.1(a). On June 10, 2004, Knowles timely filed both a notice of appeal and an affidavit of indigence in the trial court. The tenth day after the affidavit was filed in the trial court was Sunday, June 20, 2004. Any contest to the affidavit was therefore due the next working day - June 21, 2004. See Tex. R. App. P. 4.1, 20.1(e). No contest to the affidavit of indigence was filed on or before June 21; however, on July 2, the court reporter Kayleen Rivera filed a contest. After a hearing held July 9, 2004, the trial court signed an order sustaining the contest.

No timely contest to Knowles' affidavit of indigence was filed. The trial court therefore erred in holding a hearing on the untimely contest. See Tex. R. App. P. 20.1(f); In re B.A.C., 4 S.W.3d 322, 323 (Tex. App.-Houston [1st] 1999, pet. dism'd). Instead, the trial court was bound to accept the allegations in Knowles' affidavit as true, and she is "absolutely entitled" to proceed without advance payment of costs. See Rios v. Calhoon, 889 S.W.2d 257, 258 (Tex. 1994) (orig. proceeding) (construing former Tex. R. App. P. 40(a)(3)(E)); see also In re B.A.C., 4 S.W.3d at 324 (by not raising objections to affidavit in timely contest, court reporter waives right to challenge sufficiency of affidavit); In re B.R.G., 37 S.W.3d 542, 544 (Tex. App.-El Paso 2001, no pet.) (same). We therefore reverse the trial court's order sustaining the contest to Knowles' affidavit of indigence and order that Knowles is entitled to proceed without advance payment of costs.

Sarah B. Duncan, Justice