Darryl Wayne Bell v. Wilson Lawrence--Appeal from 52nd District Court of Coryell County

IN THE

TENTH COURT OF APPEALS

No. 10-96-044-CV

DARRYL WAYNE BELL,

Appellant

v.

W. LAWRENCE, ET AL.,

Appellees

From the 52nd District Court

Coryell County, Texas

Trial Court # 28,809

MEMORANDUM OPINION

Darryl Bell attempts to appeal from the court's dismissal of his in forma pauperis petition. Tex. Civ. Prac. & Rem. Code Ann. 13.001 (Vernon Supp. 1996). Because Bell failed to perfect his appeal, we will dismiss for want of jurisdiction.

The court signed an order dismissing Bell's suit on February 12, 1996. Bell filed a notice of appeal on February 26. The transcript was filed in this court on February 29. Upon examining the transcript, we determined that Bell had not duly perfected his appeal, and notified him of this defect by letter. Tex. R. App. P. 40(a)(1), 56(a). On March 27, he filed an "Affidavit In Support of Motion to Proceed on Appeal in Forma Pauperis" in this court.

Perfection of an appeal is required to invoke our jurisdiction. Welch v. McDougal, 876 S.W.2d 218, 220-22 (Tex. App. Amarillo 1994, writ denied); El Paso Sharky's v. Amparan, 831 S.W.2d 3, 5 (Tex. App. El Paso 1992, writ denied). Because Bell is not exempt from paying the costs on appeal, he is required to file either a cost bond, a cash deposit, or an affidavit of inability to pay costs to perfect this appeal. Tex. Civ. Prac. & Rem. Code Ann. 6.01-6.03 (Vernon 1986 & Supp. 1996); Tex. R. App. P. 40(a)(1), (a)(3); White v. Schiwetz, 793 S.W.2d 278, 279 (Tex. App. Corpus Christi 1990, no writ). His notice of appeal is insufficient to perfect the appeal. Id.

However, because his notice of appeal is a bona fide effort to invoke our jurisdiction, we have jurisdiction to allow him the opportunity to properly perfect his appeal. Linwood v. NCNB Texas, 885 S.W.2d 102, 103 (Tex. 1994). Included within the proper perfection of an appeal is the filing of the appropriate instrument, within the appropriate time, in the appropriate court. Tex. R. App. P. 40(a)(1), 41(a)(1); Chavez v. Housing Auth. of El Paso, 897 S.W.2d 523, 526 (Tex. App. El Paso 1995, writ denied); El Paso Sharky's, 831 S.W.2d at 5. Bell's filing of an affidavit of inability to pay costs in this court does not remedy the defect so that this appeal is properly perfected. See id.; also Tex. R. App. P. 55(b).

We notified Bell that the transcript did not demonstrate that his appeal had been duly perfected. Tex. R. App. P. 56(a), 60(a)(2). Even though given the opportunity to cure the defect, he has failed to properly perfect this appeal. Id. 40(a)(1), 83. Thus, the transcript does not show that this court has jurisdiction and "after notice it [has] not [been] amended." Id. 56(a).

Therefore, we dismiss this cause for want of jurisdiction. Id.

PER CURIAM

Before Justice Cummings and

Justice Vance

Dismissed for want of jurisdiction

Opinion delivered and filed April 10, 1996

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