TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-06-00235-CV
Janet Kennedy and Alamo Ranch, Inc., Appellant
v.
Bobby Joe Kennedy, Appellee
FROM THE DISTRICT COURT OF HAYS COUNTY, 274TH JUDICIAL DISTRICT
NO. 99-1437, HONORABLE CHARLES R. RAMSAY, JUDGE PRESIDING
Appellant Janet Kennedy (1)
has filed in this Court a motion for a free appellate record. We are not permitted to consider the merits of this motion. The Legislature and the supreme court have created a system that requires a determination by the trial court in the first instance. See Tex. Civ. Prac. & Rem. Code Ann. § 13.003 (West 2002); Tex. R. App. P. 20.1. The statute requires the preparation of free records on appeal only if an affidavit of inability to pay the costs of appeal has been filed pursuant to the rules of appellate procedure and if the trial court finds that the appeal is not frivolous and that the free records are necessary to determination of the appeal. Tex. Civ. Prac. & Rem. Code Ann. § 13.003(a). Rule of appellate procedure 20 requires in relevant part that "[a]n appellant must file the affidavit of indigence in the trial court with or before the notice of appeal." Tex. R. App. P. 20.1(c)(1). Rule 20 then describes the sequence of events that must be followed. There is no provision authorizing this Court to consider the merits of a motion for a free appellate record presented outside of those procedures.
We note that, in an appeal from another Hays County district court case involving the Kennedys and Alamo Ranch, Inc., this Court recently affirmed the trial court's rejection of Janet Kennedy's affidavit of indigence. See Kennedy v. Kennedy, No. 03-06-00080-CV, (Tex. App.--Austin May 5, 2006, no pet. h.). That opinion indicates that the trial court found that about $400,000 is in the registry of the court and available to Janet Kennedy for withdrawal. A response to appellant's motion in this case has been filed asserting similar information.
Because the motion for a free record is not authorized by the rules of appellate procedure setting out the process for establishing an entitlement to a free record, we overrule the motion.
It is ordered May 17, 2006.
G. Alan Waldrop, Justice
Before Justices B. A. Smith, Puryear and Waldrop
1. Janet Kennedy purports to represent the corporate party, Alamo Ranch, Inc. In litigation, only a licensed attorney can appear and represent a corporation. KSNG Architects, Inc. v. Beasley, 109 S.W.3d 894, 896-97 (Tex. App.--Dallas 2003, no pet.); Dell Dev. Corp. v. Best Indus. Uniform Supply Co., 743 S.W.2d 302, 303 (Tex. App.--Houston [14th Dist.] 1987, writ denied). Therefore, we will consider this motion as filed only by Janet Kennedy in her individual capacity.