George Roden, et al. v. Janet Kendrick, et al.--Appeal from 19th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-94-222-CV

GEORGE RODEN, ET AL.,

Appellants

v.

JANET KENDRICK, ET AL.,

Appellees

From the 19th District Court

McLennan County, Texas

Trial Court # 93-1825-1

O P I N I O N

George Roden attempts to appeal from the court's order granting the State permission to enter the Mount Carmel Branch Davidian Compound for the purpose of cleaning up hazardous waste at the site. Because Roden failed to properly perfect his appeal, we will dismiss for want of jurisdiction. See Tex. R. App. P. 40(a)(1).

A civil litigant who is not exempt from paying costs may perfect an appeal in one of three ways filing a cost bond, filing a cash deposit for costs, or filing an affidavit stating that he is unable to pay the costs of the appeal. Id. 40(a)(1), (2); White v. Schiwetz, 793 S.W.2d 278, 279 (Tex. App. Corpus Christi 1990, no writ). Generally, only governmental entities and their agents are exempt from paying costs. See Tex. Civ. Prac. & Rem. Code Ann. 6.01-6.03 (Vernon 1986 & Supp. 1994). When a private appellant is unable to pay the costs of the appeal, he must file his affidavit of inability to pay within thirty days of the signing of the final order. See Tex. R. App. P. 40(a)(3)(A), 41(a)(1).

Prior to the court's rendition of a final judgment, Roden filed a "Notice of Appeal" from the court's ruling. See id. 58(a). After the court rendered final judgment, Roden filed a "Former Pauperus Request Transcript of The Record:"

Defendant request the court to send the [transcript] of the Record of the hearing of 6-23-6-24-94 in this cause all the papers filed and the testimony to the tenth court of appeals, because the defendant as appellant in the tenth court has no money because Waco allowed Koresh to destroy all of Defendants property in Waco both Association property and personal property.

" Affidavit means a statement in writing of a fact or facts signed by the party making it, sworn to before an officer authorized to administer oaths, and officially certified to by the officer under his seal of office." Tex. Gov't Code Ann. 312.011(1) (Vernon 1988). Although both the notice of appeal and the request for a transcript were signed by Roden, neither was sworn to. Thus, there was no "affidavit" of inability to pay costs filed in the court. See White, 793 S.W.2d at 280.

Because Roden failed to file a cost bond or a proper affidavit of inability to pay cost and he is not exempt from posting security for the cost of his appeal, we hold that he has failed to prefect his appeal. Perfecting the appeal is a requirement to invoke our jurisdiction. See id. Thus, we do not have jurisdiction over this cause and the appeal is dismissed for want of jurisdiction.

PER CURIAM

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Dismissed

Opinion delivered and filed November 9, 1994

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