Gilberto Juan Garza v. Texas Department of Criminal Justice, et al.--Appeal from 52nd District Court of Coryell County

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Garza-GJ v. State /**/




No. 10-96-171-CV










From the 52nd District Court

Coryell County, Texas

Trial Court # 28,850




Gilberto Garza 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 he failed to properly perfect his appeal, we will dismiss for want of jurisdiction.

The court signed an order dismissing Garza's suit on July 17, 1996. He filed a notice of appeal on July 24, and the transcript was filed in this court on July 31. Upon examining the transcript, our clerk determined that Garza had not duly perfected his appeal, and notified him of this defect by letter. Tex. R. App. P. 40(a)(1), 56(a). On August 13, he filed a motion and a supporting affidavit, seeking leave to proceed in forma pauperis, with our clerk.

An appeal must be perfected 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 Garza 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. See 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. See Tex. R. App. P. 40(a)(1), 41(a)(1); Chavez v. Housing Auth. of El Paso, 897 S.W.2d 523, 526-27 (Tex. App. El Paso 1995, writ denied); El Paso Sharky's, 831 S.W.2d at 5. Garza's motion and affidavit of inability to pay costs filed in this court do not remedy the defect so that this appeal is properly perfected. See id.; also Tex. R. App. P. 55(b).

Our clerk notified Garza 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).

Garza'a motion to proceed in forma pauperis is denied. We dismiss this cause for want of jurisdiction. Id.



Before Chief Justice Davis

Justice Cummings and

Justice Vance

Dismissed for want of jurisdiction

Opinion delivered and filed August 30, 1996

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