IN THE
TENTH COURT OF APPEALS
No. 10-01-101-CV
JON STUART BAUGHMAN,
Appellant
v.
TONYA R. BAUGHMAN
Appellee
AND IN THE INTEREST OF
D.B., A CHILD
From the 19th District Court
McLennan County, Texas
Trial Court # 97-2399-1,2
CONCURRING OPINION
I disagree with the majority opinion on two issues, neither of which would change the result.
First, I do not believe that section 13.003 of the Civil Practice and Remedies Code applies to cases, like this, where no affidavit of inability to pay costs in the trial court was filed under Rule 145 of the Rules of Civil Procedure. Tex. Civ. Prac. & Rem. Code § 13.003 (Vernon Supp. 2002). I understand that from a literal reading of the section, out of context, it appears to apply. However, in 1993, the Legislature added it to the chapter entitled “Affidavit of Inability to Pay Costs” dealing with the filing of frivolous suits in the trial court and in 1995 amended it. In each instance, the caption contains the phrase “appeals in which an affidavit of inability to pay costs has been filed.” Section 13.003 should be read in context with sections 13.001, 13.002, and 13.004 to apply only when they apply.
Second, I would apply an abuse-of-discretion standard in reviewing the trial court’s decision on an affidavit filed under Appellate Rule 20.1, rather than a legal and factual sufficiency review. Tex. R. App. P. 20.1.
Because I do not believe that the trial court abused its discretion in denying a free record in this instance, I concur in affirming the court’s order.
BILL VANCE
Justice
Concurring opinion delivered and filed December 5, 2001
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