                IN THE SUPREME COURT OF TEXAS
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                                           No. 16-0270
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                                    IN RE NORMA HEREDIA

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                      ON PETITION FOR WRIT OF MANDAMUS
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                                          PER CURIAM

       JUSTICE WILLETT did not participate in the decision.

       This petition for writ of mandamus asks whether a court reporter may challenge an

appellant’s indigence claim after the ten-day deadline set forth in Texas Rule of Appellate

Procedure 20.1. We hold that the Rule does not allow for an untimely challenge, even if the court

reporter did not receive notice of the indigence claim.

       Relator Norma Heredia sued Real Party in Interest Wal-Mart Stores Texas, L.L.C. for

personal injuries she sustained from a slip-and-fall at a Wal-Mart store. Wal-Mart denied

responsibility for Heredia’s injuries and moved for no-evidence summary judgment, which the

trial court granted. On February 23, 2016, Heredia timely filed a notice of appeal and an affidavit

of indigence in the trial court. No one filed a challenge to Heredia’s affidavit within the following

ten days. But on March 23, 2016, the court of appeals issued a sua sponte order, purportedly

“pursuant to Texas Rule of Appellate Procedure 20.1(e),” allowing any interested parties to file a

challenge to Heredia’s affidavit in the ten days following the date of that order. The court further

ordered that if a contest was “timely filed,” the trial court should conduct a hearing, prepare

findings of fact and conclusions of law, and supplement the appellate record.
       The court reporter filed a challenge to Heredia’s affidavit three days after the court of

appeals’ order. In a letter filed in this Court, the court reporter stated that the trial court had not

informed her that Heredia had filed an indigency affidavit and that she was unaware of the affidavit

until she received the court of appeals’ March 23 order. Pursuant to the court of appeals’ order,

the trial court set a hearing to determine Heredia’s indigence. Heredia filed a motion to stay the

hearing and a petition for writ of mandamus in this Court. We granted the motion to stay pending

the disposition of her petition.

       The procedural rules are clear: a person seeking to challenge an indigency affidavit must

file a contest “within 10 days after the date when the affidavit was filed.” TEX. R. APP. P.

20.1(e)(1). If no one timely contests the affidavit, “no hearing will be conducted, 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(f). In other words, an affidavit of indigence filed in a trial court is

operative unless challenged within ten days of its filing.

       The court reporter notes that when an appellant files an indigency affidavit with the trial

court clerk, the rule requires the clerk to “promptly send a copy of the affidavit to the appropriate

court reporter.” TEX. R. APP. P. 20.1(d)(1). Because the clerk failed to promptly send the court

reporter a copy of the affidavit, the court reporter asserts that “good cause” exists for the appellate

court’s extension of the ten-day deadline. Our rules do allow for suspension of a rule’s operation

when good cause exists. See TEX. R. APP. P. 2 (“[A]n appellate court may—to expedite a decision

or for other good cause—suspend a rule’s operation in a particular case and order a different

procedure . . . .” (emphasis added)). But lack of notice “in this context to a court reporter of the

filing of an affidavit of indigence is not good cause in light of Rule 20.1.” Morris v. Aguilar, 369


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S.W.3d 168, 171 (Tex. 2012). In short, the clerk’s failure to promptly send a copy of an indigency

affidavit to a court reporter “is not grounds for denying an indigent appellant the benefits of” Rule

20.1(f), Morris, 369 S.W.3d at 172; see also id. at 171 (“Rule 20.1(f) is mandatory to protect the

indigent appellant and uphold the principle that ‘[c]ourts should be open to all, including those

who cannot afford the costs of admission.’” (quoting In re C.H.C., 331 S.W.3d 426, 429 (Tex.

2011) (per curiam))). The rules simply do not permit any out-of-time challenges, regardless of the

reason for delay.

       Texas Rule of Appellate Procedure 20.1(f) mandates that, absent a timely challenge to an

affidavit of indigence, a party must be allowed to proceed on appeal without advance payment of

costs. TEX. R. APP. P. 20.1(f); Rios v. Calhoon, 889 S.W.2d 257, 258–59 (Tex. 1994) (per curiam)

(explaining that without a timely challenge “the party is absolutely entitled to the exemption from

costs, and the trial court lacks the authority to affect the party’s entitlement” (citations omitted)).

Thus, pursuant to Rule 52.8(c) of the Texas Rules of Appellate Procedure, the Court conditionally

grants the writ of mandamus and directs the court of appeals to vacate its March 23 order and to

allow Heredia to proceed with her appeal without payment of costs. The writ will issue only if the

court of appeals fails to act in accordance with this opinion.



Opinion Delivered: September 30, 2016




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