I agree with the majority that the contest to appellant's "affidavit of inability to give security for costs" was not timely filed. I also agree that the trial court erred in holding a hearing on the untimely filed contest. I disagree with the majority when they conclude that in the absence of a timely contest to the affidavit, even if the affidavit is insufficient as an affidavit, the affiant appellant may proceed on appeal without payment of costs.
An "affidavit" means a statement in writing of a fact or facts signed by the party making it, sworn to before an officer authorized to administer oaths, and officially certified to by an officer under his seal of office. TEX. GOV'T CODE ANN. §312.011 (1) (Vernon 1998). Rule 20.1 of the Rules of Appellate Procedure clearly requires a party who seeks to appeal without advance payment of costs to file an affidavit of indigence. See TEX. R. APP. P. 20.1(a)(1), (b), (c)(1).
What did appellant swear to in the document purporting to be her affidavit? Nothing. It was the notary who subscribed and swore that appellant was unable to pay the costs of appeal or any part thereof, or to give security therefore. Appellant made no first person statements that she was unable to pay the costs of appeal. Appellant did not positively and unqualifiedly represent the facts of her indigency in her personal knowledge. Without question, appellant's affidavit is legally insufficient. SeeHumphreys v. Caldwell, 888 S.W.2d 469, 470 (Tex. 1994) (affidavit that does not positively and unqualifiedly represent the facts as disclosed in affidavit to be true and within affiant's personal knowledge is legally insufficient).
Accordingly, because appellant did not file an "affidavit as required by rule 20.1 of the Rules of Appellate Procedure, I would *Page 326 rule that appellant is not entitled to a free record on appeal.