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Paul v. Lopez

Court of Appeals of Texas, Fourth District, San Antonio

March 29, 2019

Michael Thomas PAUL, Appellant
v.
Miguel LOPEZ, David Padilla, John Stricklin, Javier Zuniga, and San Antonio Television, LLC, Appellees

          From the 25th Judicial District Court, Guadalupe County, Texas Trial Court No. 18-2085-CV-A Honorable Jessica Crawford, Judge Presiding.

          ORDER

          Irene Rios, Justice.

         To date, the reporter's record has not been filed in this appeal. At issue is whether appellant has the ability to pay for the preparation of the reporter's record. On March 15, 2019, appellant filed a document in this court asking us to (1) withdraw our March 4, 2019 order requiring him to show proof of payment for the reporter's record and conclude that he is indigent; and (2) accept the document as his brief in this case. In the document, appellant raises multiple objections to our March 4, 2019 order, including "challeng[ing] the process of having to refile an affidavit of indigence when the trial court had already determined the issue and was proceeding forward acknowledging the appellant to be indigent."

         A summary of the events relating to appellant's inability to pay for the reporter's record is necessary. After the trial court signed its judgment in this case and before the clerk's record was filed in this appeal, appellant filed a statement of inability to pay court costs. This statement of inability to pay court costs was filed in the trial court on November 29, 2018, and in this court on December 17, 2018. Because we were under the impression this was the first statement of inability to pay court costs filed by appellant, we issued an order advising the trial court clerk, the court reporter, or any party that they could file a contest to appellant's statement of inability to pay court costs. The court reporter timely filed a contest to appellant's statement of inability to pay court costs. In response to this contest, we abated this appeal and remanded the case to the trial court directing the trial court to hold a hearing on the court reporter's contest. Although notified, appellant failed to appear at this hearing in a timely manner. Based on appellant's failure to appear, the trial court made a written finding that appellant was not indigent. The trial court clerk then filed the clerk's record in this court. In light of the trial court's finding, we issued our March 4, 2019 order requiring appellant to provide written proof to this court that the reporter's fee had been paid or arrangements had been made to pay the reporter's fee. We further ordered that if appellant failed to respond within the time provided, his brief would be due.

         Our examination of the clerk's record shows that prior to filing his November 29, 2018 statement of inability to pay court costs in the trial court, appellant had previously filed a statement of inability to pay court costs in the trial court. It does not appear that the earlier statement of inability to pay court costs, which was filed on September 7, 2018, was ever challenged in the trial court See Tex. R. Civ. P. 145(f) (providing that a court reporter may move to require the declarant to prove the inability to afford pay costs). Appellant had proceeded as indigent in the trial court proceedings.

         When we issued our order abating this appeal and remanding the case to the trial court for a hearing, the clerk's record had not been filed and we were unaware of appellant's previous statement of inability to pay court costs. If we had been aware of appellant's September 7, 2018 statement of inability to pay court costs, we would not have issued an order advising the trial court clerk, the court reporter, or any party that they could file a contest to appellant's statement of inability to pay court costs.

         Because appellant's previous statement of inability to pay court costs was not challenged in the trial court as provided by Rule 145(f), we conclude that appellant is indigent for purposes of preparing the reporter's record in this appeal. See Tex. R. Civ. P. 145(a) ("A party who files a Statement of Inability to Afford Payment of Court Costs cannot be required to pay costs except by order of the court as provided by this rule."); see also Tex. R. App. P. 20.1(b) ("A party who filed a Statement of Inability to Afford Payment of Court Costs in the trial court is not required to pay costs in the appellate court unless the trial court overruled the party's claim of indigence in an order that complies with Texas Rule of Civil Procedure 145.").

         Therefore, we GRANT IN PART and DENY IN PART the relief requested by appellant. To the extent appellant asks us to withdraw our March 4, 2019 order, we GRANT his request. Our March 4, 2019 order requiring appellant to show proof of payment for the reporter's fee and, in the alternative, to file his appellant's brief without the benefit of a reporter's record is WITHDRAWN. To the extent appellant asks us to accept the document he filed on March 15, 2019, as his brief in this case, we DENY his request.

         Because appellant is deemed indigent, we ORDER the court reporter to file the reporter's record without the payment of the reporter's fee by appellant. The reporter's record is due in this court on or before April 19, 2019. Because this appeal is accelerated in nature, appellant's brief will be due no later than twenty (20) days after the reporter's record is filed. See Tex. Civ. Prac. & Rem. Code Ann. ยง27.008(b) (stating that an appellate court shall expedite an appeal from an order on a motion to dismiss under the Texas Citizens Participation Act); Tex. R App. P. 28.1 (providing that appeals required by statute to be expedited are accelerated appeals); Tex. R. App. P ...


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