Humberto Montalvo, Individually and D/B/A Montalvo Produce of Mexico v. JP Morgan Chase Bank, N.A.

Abatement Order filed February 14, 2012.

In The

Fourteenth Court of Appeals
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NO. 14-11-01022-CV
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HUMBERTO MONTALVO, INDIVIDUALLY AND D/B/A MONTALVO
PRODUCE OF MEXICO, Appellant

V.

JP MORGAN CHASE BANK, N.A., Appellee

On Appeal from the 113th District Court
Harris County, Texas
Trial Court Cause No. 2010-23102

ABATEMENT ORDER
This appeal is from an order signed November 10, 2011, sustaining a contest to the
affidavit of indigency filed by appellant in Appeal No. 14-11-00987. That appeal is from
an order signed June 14, 2011.

In response to notice from this court that the clerk's record has not been filed, the
district clerk claims appellant has not paid for the record. An indigent party may obtain
the record pertaining to the trial court's ruling sustaining the contest to his affidavit of
indigence for the purpose of appealing that ruling. See In re Arroyo, 988 S.W.2d 737,
738-39 (Tex. 1998).

To be entitled to a free record on appeal, not only must appellant file an affidavit of
inability to pay costs, the trial court must also find that (1) the appeal is not frivolous; and
(2) the reporter's and clerk's records are needed to decide an issue presented by the appeal.
Tex. Civ. Prac. & Rem. Code Ann. § 13.003(a). In determining whether the appeal is
frivolous, the judge may consider whether appellant has presented a substantial question
for appellate review. Tex. Civ. Prac. & Rem. Code Ann. § 13.003(b). The trial judge
may order the clerk of the court to prepare any part of the record necessary for making the
determination of whether the appeal is frivolous and if the record is necessary to the appeal.
Tex. Civ. Prac. & Rem. Code Ann. § 13.003(c).

Accordingly, we ORDER the trial court to make written findings as to whether (1)
the appeal is frivolous; and (2) if the reporter's and clerk's records are needed to decide an
issue presented by the appeal.

We further ORDER the trial court clerk and court reporter for this case, under
Texas Rules of Appellate Procedure 34.5(c)(1) and 34.6(d), respectively, to prepare and
file the portions of the record necessary to review the order sustaining the contest(s) to
appellant's affidavit of indigence. The partial clerk's record shall contain: (1)
appellant's affidavit of indigency; (2) the contest(s) to the affidavit of indigence; (3) the
trial court's order sustaining the contests; (4) the trial court's findings pursuant to Tex. Civ.
Prac. & Rem. Code Ann. § 13.003(a); and (5) all other documents pertaining to the claim of
indigence and the contest(s) thereto. In addition, in order that this court may ascertain its
jurisdiction over the appeal, the partial clerk's record shall contain (6) the judgment
being appealed; (7) any motion for new trial, other post-judgment motion, or request for
findings of fact and conclusions of law; and (8) the notice of appeal. The court reporter
shall file a partial reporter's record from the hearing or hearings, and any exhibits
admitted at the hearing, on the contest to appellant's claim of indigence. These records
shall be filed with the clerk of this court on or before March 15, 2012.

The appeal is abated, treated as a closed case, and removed from this court's active
docket. The appeal will be reinstated on this court's active docket when the review of the
trial court's ruling on indigency has been completed. The court will also consider an
appropriate motion to reinstate the appeal filed by any party.

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PER CURIAM

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