Order filed August 15, 2013
In The
Eleventh Court of Appeals
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No. 11-13-00187-CV
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GEORGE MITCHELL, Appellant
V.
BIRDIE COOKS MITCHELL, Appellee
On Appeal from the 318th District Court
Midland County, Texas
Trial Court Cause No. FM54997
ORDER
Appellant, George Mitchell, has filed an appeal in this cause. Upon being
notified that the filing fees and the record were due, Appellant filed in this court a
declaration of inability to pay costs. The court reporter has filed a contest in this
court. In addition to contesting Appellant’s indigence, the court reporter asserts
that Appellant is not entitled to a free record because the appeal is frivolous. See
TEX. CIV. PRAC. & REM. CODE ANN. § 13.003 (West 2002). Pursuant to TEX. R.
APP. P. 20.1(h)(4) and Section 13.003(a)(2) of the Civil Practice and Remedies
Code, we abate the appeal and refer both the indigence contest and the question of
frivolousness to the trial court for resolution.
The trial court is directed to comply with TEX. R. APP. P. 20.1 in conducting
a hearing and determining whether Appellant is indigent. Unless a written order
sustaining the contest is timely entered, Appellant will be allowed to proceed
without advance payment of costs. TEX. R. APP. P. 20.1(i)(4).
We also abate the appeal for an additional reason: to allow the trial court to
enter a final judgment. The district clerk, in the docketing statement filed in this
court on July 1, 2013, indicated that a final judgment had not been filed. Our
records reflect that a final judgment was due from the trial court on July 29, 2013.
We have not received the trial court’s final judgment. Consequently, we abate the
appeal pursuant to TEX. R. APP. P. 27.2 to permit the trial court to enter a final
judgment if it has not already done so. If a final, appealable judgment has not been
entered by September 16, 2013, we may dismiss this appeal pursuant to TEX. R.
APP. P. 42.3. Except for “a few mostly statutory exceptions,” this court’s
jurisdiction is limited to appeals from final judgments. Lehmann v. Har-Con
Corp., 39 S.W.3d 191, 195 (Tex. 2001).
The district clerk is directed to forward to this court on or before
September 30, 2013, a supplemental clerk’s record containing (1) any orders and
findings entered by the trial court regarding the indigence contest, (2) any orders
and findings entered by the trial court concerning the frivolousness of this appeal,
and (3) the decree of divorce or any other appealable order or judgment, if any,
entered in this case by the trial court. The appeal will be reinstated upon receipt of
the supplemental clerk’s record.
This appeal is abated.
PER CURIAM
August 15, 2013
Panel consists of: Wright, C.J.,
McCall, J., and Willson, J.
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