Reversed and Rendered and Memorandum Opinion filed April 23, 2013.




                                      In The

                    Fourteenth Court of Appeals

                              NO. 14-12-00308-CV

                        HELEN MAYFIELD, Appellant
                                        V.
                          HARRIS COUNTY, Appellee

                    On Appeal from the 129th District Court
                            Harris County, Texas
                      Trial Court Cause No. 2011-26254

               MEMORANDUM                        OPINION
      This is an appeal from the trial court’s order signed March 19, 2012,
sustaining the Harris County District Clerk’s contest to appellant Helen Mayfield’s
affidavit of indigence. See Tex. R. App. P. 20.1. Appellant has perfected a separate
appeal from a summary judgment signed December 12, 2011, which is currently
abated, pending the resolution of appellant’s claim of indigence. See Helen
Mayfield v. The Eagle Newspaper, Holly Huffman, Matthew Watkins and John P.
Barnwell, CEO of the Evening Post Publishing Co., No 14-12-00034-CV.
       Appellant filed an affidavit in the court below, attesting to her inability to
pay costs of the appeal. 1 The Harris County District Clerk filed a timely contest to
the affidavit and a motion to extend time to conduct a hearing on the contest. The
trial court granted the extension and sustained the District Clerk’s contest.
Appellant filed a timely notice of appeal from the order sustaining the contest.

       Because appellant has appealed the final judgment, she is entitled to
challenge the denial of her indigent status for the appeal, and we may order the
record necessary for a review of the trial court’s ruling without the advance
payment of costs. See In re Arroyo, 988 S.W.2d 737, 738-39 (Tex. 1998).
Accordingly, we ordered a partial record related to the indigence appeal. The
record and the parties’ briefs on the issue of indigence have now been filed.

       Texas Rule of Appellate Procedure 20.1 governs the procedure to be
followed when a party seeks to appeal without the advance payment of costs. See
Tex. R. App. P. 20.1. Rule 20.1(i)(1) provides that when an affidavit is filed in the
trial court and a contest is filed, as in this case, “the trial court must set a hearing
and notify the parties and the appropriate court reporter of the setting.” See Tex. R.
App. P. 20.1(i)(1). The hearing must be conducted, or an order signed extending
the time to conduct the hearing, within 10 days after the contest was filed. Tex. R.
App. P. 20.1(i)(2)(A). “The time for conducting a hearing on the contest must not
be extended for more than 20 days from the date the order is signed.” Tex. R. App.
1
  Appellant asserts in her brief that she filed an affidavit of indigence “with her Notice of
Appeal,” which was filed January 10, 2012. According to the record before this court, the
affidavit of indigence was filed February 13, 2012. Even though the appellate rules contemplate
that an affidavit of indigence will be filed at the same time as a notice of appeal, the Texas
Supreme Court has confirmed that because the affidavit’s filing is not jurisdictional, an affidavit
that is filed later is effective. See Higgins v. Randall Cnty. Sheriff’s Office, 193 S.W.3d 898, 899-
900 (Tex. 2006). Appellant’s affidavit was filed before the March 1, 2012, effective date of
recent changes to Texas Rule of Appellate Procedure 20.1, which governs claims of indigence in
the appellate courts. See Misc. Docket No. 12–9030 (Tex. Feb. 13, 2012), 75 Tex. B.J. 228.
Accordingly, we have applied the former rule to this appeal.


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P. 20.1(i)(3). “Unless—within the period set for the hearing—the trial court signs
an order sustaining the contest, the affidavit’s allegations will be deemed true, and
the party will be allowed to proceed without advance payment of costs.” Tex. R.
App. P. 20.1(i)(4).

      We review a trial court’s ruling on a contest to an affidavit of indigence for
abuse of discretion. Basaldua v. Hadden, 298 S.W.3d 238, 241 (Tex. App.—San
Antonio 2009, no pet.). A trial court abuses its discretion when it acts in an
arbitrary or unreasonable manner without reference to any guiding rules or
principles. Jelinek v. Casas, 328 S.W.3d 526, 539 (Tex. 2010). A trial court has no
discretion in determining what the law is or applying the law to the facts. In re
Kuntz, 124 S.W.3d 179, 181 (Tex. 2003).

      In appellant’s second issue, which is dispositive of this appeal, she asserts
that the trial court’s order sustaining the District Clerk’s contest was untimely
because the time for a hearing was improperly extended. She contends that the trial
court abused its discretion by sustaining the contest to her affidavit when the order
granting an extension of time to conduct a hearing on the contest was not signed
within the time permitted by the governing rules. The affidavit was filed February
13, 2012, and the contest was filed February 21, 2012. Therefore, the trial court
was required to sign an order on or before March 2, 2012, 10 days after the contest
was filed. See Tex. R. App. P. 20.1(i)(2)(A). Instead, on March 19, 2012, the trial
court signed two orders: one granting an extension of time until March 5, 2012, to
conduct the hearing; and a second order sustaining the contest. These orders are
untimely.

      First, the trial court’s orders were signed more than 10 days after the contest
was filed. See In re G.C., 22 S.W.3d 932, 932-33 (Tex. 2000) (holding trial court
must sign an order within 10 days after the contest is filed either sustaining the


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contest or extending the time for a hearing); see also Tex. R. App. P. 20.1(i)(2). In
addition, the order sustaining the contest is untimely because it was signed after the
extended date set out in the order granting the extension. See Montalvo v. JP
Morgan Chase Bank, NA, 375 S.W.3d 553, 554-55 (Tex. App.—Houston [14th
Dist.] 2012, no pet.) (holding trial court abuses its discretion in signing an order
sustaining a contest beyond the time set for the hearing). Even though the time
period may be extended for up to 20 days, if the trial court sets an earlier time in its
extension order, the court must sign an order sustaining the contest by the earlier
date, or the affidavit’s allegations will be taken as true. Id. at 554.

       Unless the trial court signs an order sustaining the contest or extending the
time for a hearing within 10 days after the contest was filed, Rule 20.1 requires the
allegations in the affidavit to be deemed true and authorizes the appellant to
proceed with an appeal without prepayment of costs. In re G.C., 22 S.W.3d at 932-
33 (citing Tex. R. App. P. 20.1(i)(4)). Therefore, we conclude the trial court
abused its discretion in sustaining the contest to appellant’s affidavit of indigence
because the trial court’s order was untimely. We sustain appellant’s second issue.

       We reverse the trial court’s order signed March 19, 2012, and order that
appellant is entitled to proceed on appeal from the summary judgment signed
December 12, 2011, without the advance payment of costs.2

                                  PER CURIAM


Panel consists of Justices Boyce, Jamison and Busby.



2
  By separate order issued in the main appeal docketed under number 14-12-00034-CV, the
court orders the appeal reinstated and the filing of the complete record without the advance
payment of costs.


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