                        COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-10-00154-CV


JESSE F. REECE SR.                                                APPELLANT

                                       V.

TEXOMA FLEET AND AUTO                                             APPELLEES
REPAIR AND JOHN WELKER


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          FROM THE 78TH DISTRICT COURT OF WICHITA COUNTY

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                       MEMORANDUM OPINION1

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      Appellant Jesse F. Reece Sr., pro se, sued Appellees Texoma Fleet and

Auto Repair and John Welker in small claims court alleging negligence and

damages in the amount of $5,000. At the close of Reece’s evidence, the court

granted Appellees’ motion for a directed verdict. The judge signed the order on

September 16, 2009. Reece attempted to appeal to the district court seeking a


      1
      See Tex. R. App. P. 47.4.
trial de novo.2 The court received and filed Reece’s notice of appeal and affidavit

of inability to pay costs on September 22, 2009. At a pretrial hearing, the judge

requested that the parties prepare a brief for the court on the issue of whether

Reece’s affidavit and notice of appeal were timely filed.          The court granted

Appellees’ motion to dismiss with prejudice, reasoning that Reece had failed to

timely file a notice of appeal and affidavit of inability to pay costs in lieu of bond.

We will affirm the district court’s order.

      At issue in this appeal is whether Reece’s affidavit was timely filed to

perfect his appeal from the small claims court to the district court. We review

de novo the legal question of whether Reece timely filed his affidavit and thereby

conferred jurisdiction on the district court. See Mayhew v. Town of Sunnyvale,

964 S.W.2d 922, 928 (Tex. 1998), cert. denied, 526 U.S. 1144 (1999). When the

affidavit is not timely filed, the district court is without jurisdiction and the appeal

must be dismissed.      See Williams v. Schneiber, 148 S.W.3d 581, 583 (Tex.

App.—Fort Worth 2004, no pet.).

      An aggrieved party may appeal a small claims court judgment to the

district court in Wichita County. Tex. Gov’t Code Ann. § 28.053 (West Supp.

2010), § 24.132(b). A timely appeal will result in a trial de novo in the district

court. Tex. R. Civ. P. 574b. To perfect an appeal from a small claims court, an


      2
       In Wichita County, an appeal from the small claims court is to the district
court. See Tex. Gov’t Code Ann. § 24.132(b) (West 2004) (stating that, in
addition to other jurisdictions prescribed by law, each district court in Wichita
County has the civil jurisdiction of a county court).

                                       2
appellant must file either an appeal bond as required by rule 571 or an affidavit of

inability to pay costs under rule 572 and comply with those requirements. See

Tex. R. Civ. P. 571, 572, 573; Merritt v. Davis, 331 S.W.3d 857, 862 (Tex. App.—

Dallas 2011, pet. denied); Almahrabi v. Booe, 868 S.W.2d 8, 10 (Tex. App.—El

Paso 1993, no writ). An appellant who is unable to pay the costs of the appeal

must file an affidavit of inability to pay within five days after the complained-of

judgment is signed. Tex. R. Civ. P. 572.

      Reece chose to proceed under rule 572 by filing an affidavit of inability to

pay. Because the order was signed on September 16, 2009, the affidavit was

due by September 21, 2009. See Tex. R. Civ. P. 572. The record shows that

Reece did not file his affidavit until September 22, 2010.

      Reece argues that he sent the affidavit on September 19, 2009, which was

prior to the last day to file, so it should be timely under the ―mailbox rule.‖ The

mailbox rule under rule 5 provides in part that:

      If any document is sent to the proper clerk by first-class United States mail
      in an envelope or wrapper properly addressed and stamped and is
      deposited in the mail on or before the last day for filing same, the same, if
      received by the clerk not more than ten days tardily, shall be filed by the
      clerk and deemed filed in time.

Tex. R. Civ. P. 5 (emphasis added); see Carpenter v. Town & Country Bank, 806

S.W.2d 959, 960 (Tex. App.—Eastland 1991, writ denied) (holding that the time

for filing was not enlarged because the motion for new trial was sent by UPS

instead of by U.S. mail).




                                     3
      Here, the notice of appeal and affidavit were sent by UPS, a private

courier, and not by U.S. mail, so the time for filing was not enlarged.       See

Carpenter, 806 S.W.2d at 960. Thus, the district court lacked jurisdiction of the

appeal because the appeal was not perfected, and it properly granted Appellees’

motion to dismiss with prejudice. See Tex. R. Civ. P. 573 (stating that appeal is

perfected when requirements are met for filing affidavit or bond); Ashley Furniture

Indus., Inc. ex rel. RBLS, Inc. v. Law Office of David Pierce, 311 S.W.3d 595,

599–600 (Tex. App.—El Paso 2010, no pet.). We overrule Reece’s dispositive

issue and affirm the district court’s order.




                                                   BILL MEIER
                                                   JUSTICE

PANEL: GARDNER, MEIER, and GABRIEL, JJ.

DELIVERED: July 7, 2011




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