COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER
Appellate case name: Keith Porter v. Patricia Porter
Appellate case number: 01-14-00766-CV
Trial court case number: 2013-47027
Trial court: 308th Judicial District Court of Harris County
On January 8, 2015, this Court’s Order on Motion granted in part appellant Keith
Porter’s second motion for extension of time to file brief and pay fees because, among
other things, appellant’s counsel stated that the trial court had set a January 22, 2015
hearing on her motion to set aside the November 12, 2014 order sustaining the contest to
appellant’s affidavit of indigence. In that Order, this Court stated that “if appellant fails
to file evidence of indigence or the filing fee by January 28, 2015, the Court may dismiss
this appeal without further notice.” Instead, on January 26, 2015, the court reporter filed
an information sheet stating that at the indigence hearing, rescheduled for that day, the
trial court again denied appellant’s motion, declaring again that he was not indigent. The
reporter also repeated that she had still not been paid for the reporter’s record for the
underlying appeal.
On January 30, 2015, the trial court clerk issued a second letter of assignment to
this Court from the above-mentioned trial court cause number, containing a notice of
appeal primarily from the trial court’s January 26, 2015 order sustaining the contest to
appellant’s affidavit of indigence. This second notice of appeal was filed by appellant in
the trial court on January 28, 2015. Furthermore, on February 4, 2015, appellant’s
counsel filed a document entitled, “Keith Porter Proof of Indigence,” in response to this
Court’s January 8th Order. In that response, appellant’s counsel repeated her contention
that, despite what the trial court found, appellant was indigent and could not afford to pay
for all of his appellate costs, and requests that this Court either waive all of his appellate
costs or alternatively permit appellant to proceed without the reporter’s record and also
requests an extension of time to file his appellate brief.
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Under Texas Rule of Appellate Procedure 20.1(j)(1), amended effective on March
1, 2012, a party claiming indigence may seek review of a trial court order sustaining a
contest to his affidavit of indigence by filing a motion challenging the order in the
appellate court, not a notice of appeal. See TEX. R. APP. P. 20.1(j)(1). Here, appellant’s
counsel filed a notice of appeal in which she specifically states that appellant “now gives
his Notice of Appeal from all Order[s] . . . on January 26, 2015, Judgment And Order
Sustaining Contest To Pauper’s Oath, any other order that shows up after the fact . . . and
the Novemb[e]r 12, 2014 Order Signed To Sustain Contest (Temporary Order) to the 1st
Texas Court of Appeal.” Thus, appellant did not file a motion challenging the order in
this Court and, more importantly, filed his notice of appeal in the trial court, not with this
Court as required to give this Court prompt notice. See TEX. R. APP. P. 20.1(j)(1).
Under Texas Rule of Appellate Procedure 20.1(j)(4), a motion challenging a trial
court’s order sustaining a contest to an affidavit of indigence is granted by operation of
law unless the appellate court denies the motion within 10 days after it is filed. TEX. R.
APP. P. 20.1(j)(4). Because appellant’s notice of appeal was filed as a notice and in the
trial court, the letter of assignment filing provided no notice to this Court of the need to
consider and rule on a motion challenging the trial court’s order within 10 days of the
filing of such a motion. Consequently, consideration of such an improperly-filed notice,
which comes to the appellate court’s attention through a letter of assignment issued by
the trial court clerk, would encourage appellants to improperly file their Rule 20.1(j)
motions in an effort to have their motions be granted by operation of law. Accordingly,
this Court will not construe appellant’s “Notice of Appeal” as a motion challenging the
trial court’s January 26, 2015 order sustaining the trial clerk’s contest to appellant’s
affidavit of indigence pursuant to Texas Rule of Appellate Procedure 20.1(j).
Because appellant has not established indigence, it is ORDERED that appellant
pay the appellate filing fee to this Court within 14 days of the date of this order, or the
appeal will be dismissed. See TEX. R. APP. P. 5 (requiring payment of fees in civil cases
unless indigent), 42.3 (allowing involuntary dismissal of case).
Although the trial clerk filed an information sheet on November 3, 2014, stating
that the clerk’s record was filed in error because it was not paid for, the clerk’s record
was filed on October 31, 2014. Because appellant indicates that he alternatively wants to
proceed without the reporter’s record, if appellant pays the filing fee by the above
deadline, the Clerk of this Court will set the briefing schedule and this Court will
consider and decide only those issues or points that do not require a reporter’s record for
a decision. See TEX. R. APP. P. 37.3(c).
It is so ORDERED.
Judge’s signature: /s/ Evelyn V. Keyes
Date: February 12, 2015
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