Dismissed and Opinion filed July 22, 2004.
In The
Fourteenth Court of Appeals
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NO. 14-04-00166-CV
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JOE GARCIA ESTRADA, JR., Appellant
V.
ANGLETON BAIL BONDS, Appellee
On Appeal from the 113th District Court
Harris County, Texas
Trial Court Cause No. 02-42432
M E M O R A N D U M O P I N I O N
On October 8, 2003, the trial court signed an order dismissing appellant=s suit for want of prosecution. On November 3, 2003, appellant filed a pro se notice of appeal.[1] An application to proceed in forma pauperis was filed with his notice. See Tex. R. App. P. 20.1.
On November 17, 2003, the Harris County District Clerk filed a contest to the affidavit of inability to pay costs, citing both appellant=s ability to pay and his failure to comply with Chapter 14 of the Texas Civil Practices and Remedies Code, which governs inmate litigation.[2] On December 2, 2003, the trial court signed an order sustaining the Harris County District Clerk=s contest. On December 22, 2003, appellant filed a petition for writ of mandamus in this court. The petition was denied because appellant failed to comply with Texas Rule of Appellate Procedure 52. See In re Joe Garcia Estrada, No. 14-03-01395-CV (Tex. App.CHouston [14th Dist.] Jan. 15, 2004, orig. proceeding) (mem. op.).
On December 3, 2003, appellant filed a document challenging, inter alia, the trial court=s order sustaining the contest to his affidavit of indigence.[3] The Texas Supreme Court has determined that, under the amended rules of appellate procedure, an indigent party may obtain the record pertaining to the trial court=s ruling sustaining the contest to his affidavit of indigence and challenge that ruling as part of her appeal, instead of by mandamus review as was done previously. See In re Arroyo, 988 S.W.2d 737, 738-39 (Tex. 1998). The clerk=s record pertaining to the contest of the affidavit of indigency was filed in this court on February 24, 2004. There is no reporter=s record.
When a contest is sustained and a review of the ruling is sought, the question is whether an examination of the record as a whole establishes that the trial court abused its discretion. See Jones v. Duggan, 943 S.W.2d 90, 93 (Tex. App.CHouston [1st Dist.] 1997, orig. proceeding). In ruling on the merits of the evidence at the trial court level, the test for determining entitlement to proceed in forma pauperis is whether the preponderance of the evidence shows that the appellant would be unable to pay the costs of appeal, if he really wanted to and made a good faith effort to do so. See Griffin Indus. v. Thirteenth Court of Appeals, 934 S.W.2d 349, 351 (Tex. 1996). To show a clear abuse of discretion, the appellant must show that, under the circumstances of the case, the facts and law permit the trial court to make but one decision. See Cronen v. Smith, 812 S.W.2d 69, 70 (Tex. App.CHouston [1st Dist.] 1991, orig. proceeding).
To be entitled to proceed without the payment of costs, an appellant is required to file an affidavit of indigence that complies with Texas Rule of Appellate Procedure 20.1. In addition, an inmate seeking to proceed without the payment of costs must file a certified copy of his inmate trust account showing the activity for the preceding six months. Tex. Civ. Prac. & Rem. Code Ann. ' ' 14.004(c), 14.006(f) (Vernon Supp. 2004).
In its order, the trial court stated it sustained the contest because it found appellant was able to pay the costs of appeal. After reviewing the record of the indigency proceedings below, we conclude appellant did not establish he was unable to pay the costs of appeal had he truly wanted to and had he made a good faith effort to do so. See Griffin Indus., 934 S.W.2d 351. The record does not establish that the trial court could have made but one decision. Appellant acknowledged in his affidavit that he had received funds from family and friends during the previous year. Appellant incorrectly stated he had no money in a prison account. The certified copy of his inmate trust account reflects deposits of over $350 during the preceding six-month period. The trial court may have found appellant had access to the funds necessary to prosecute his appeal. Accordingly, by order issued May 6, 2004, we held the trial court did not abuse its discretion in denying appellant=s request to proceed without the payment of costs.
Therefore, we ordered appellant to pay for the remainder of the record in this appeal. See Tex. R. App. P. 35.3. The remainder of the record for this appeal was due on or before May 28, 2004. In addition, we ordered appellant to pay the appellate filing fee in the amount of $125.00 to the clerk of this court on or before May 21, 2004. See Tex. R. App. P. 5. Our order warned that if appellant failed to timely pay the filing fee in accordance with the order, or failed to pay for preparation of the complete clerk=s record and provide proof of payment to this court by May 28, 2004, the appeal would be dismissed.
Appellant requested reconsideration of his pauper status, which the Court denied. Appellant then requested an extension of time to make payment, which this Court granted until June 14, 2004. When the extension was granted, we noted that no further extensions would be granted absent exceptional circumstances.
To date, the filing fee has not been paid in accordance with our order of May 6, 2004, and appellant has not taken any steps to prosecute his appeal.
Accordingly, the appeal is ordered dismissed. See Tex. R. App. P. 42.3(c).
PER CURIAM
Judgment rendered and Opinion filed July 22, 2004.
Panel consists of Chief Justice Hedges and Justices Frost and Guzman.
[1] Appellant filed his notice with the clerk of the Court of Appeals for the First District of Texas, who then forwarded it to the Harris County District Clerk. See Tex. R. App. P. 25.1(a) (when a notice of appeal is mistakenly filed with the appellate court, it is deemed to have been filed on the same day with the trial court clerk). The notice also states appellant is seeking mandamus relief. Because the dismissal was a final, appealable judgement, we construe the document as a notice of appeal only.
[2] Section 14.004 requires an inmate who files an affidavit or unsworn declaration of inability to pay costs to file a separate affidavit or declaration setting information concerning previous lawsuits. Tex. Civ. Prac. & Rem. Code Ann. ' 14.004(a) (Vernon Supp.2004). Section 14.004(a) does not apply to appellate courts. Nabelek v. Garrett 94 S.W.3d 648, 649 (Tex. App.CHouston [14th Dist.] 2002) (order); Donalson v. Barr, 86 S.W.3d 718, 720 (Tex. App.CHouston [1st Dist.] 2002) (order). Although the District Clerk cited appellant=s failure to comply with section 14.004(a) as a ground for sustaining its contest, the trial court ruled based upon appellant=s ability to pay.
[3] Appellant also filed a supplement to his affidavit of indigence on December 3, 2003, after the court had sustained the contest. The supplement is untimely. See Tex. R. App. P. 20.1(c)(1).