                                                                                Manuel




                            Fourth Court of Appeals
                                   San Antonio, Texas
                                        February 23, 2015

                                      No. 04-14-00785-CV

                                      Mary Ann CASTRO,
                                           Appellant

                                                 v.

                                        Manuel CASTRO,
                                           Appellee

                   From the 45th Judicial District Court, Bexar County, Texas
                                Trial Court No. 2011-CI-15957
                         Honorable Janet P. Littlejohn, Judge Presiding


                                         ORDER
        On November 7, 2014, appellant filed a notice of appeal from the trial court’s October
13, 2014 judgment. On December 29, 2014, after her trial attorney was permitted to withdraw,
appellant filed an affidavit of indigency in this court. Appellant did not file her affidavit in the
trial court.

        A party who cannot pay the costs of an appeal must file an affidavit of indigence “in the
trial court with or before the notice of appeal.” TEX. R. APP. P. 20.1(c)(1). Appellant’s affidavit
was therefore due in the trial court on November 7, 2014, the date the notice of appeal was filed,
or a motion for extension of time to file the affidavit was due in this court fifteen days later, on
November 24, 2014 — the actual fifteenth day, the twenty-second of November, was a Saturday.
See id. R. 20.1(c)(1), (3).

        We construed the affidavit filed in this court as a motion for extension of time to file the
affidavit in the trial court. Although the affidavit was filed outside the fifteen-day deadline set
forth in Rule 20.1(3), we noted that an untimely affidavit of indigence can be “adequate to fulfill
the fundamental purpose of Rule 20.1.” Higgins v. Randall County Sheriff’s Office, 257 S.W.3d
684 (Tex. 2008). Accordingly, we granted appellant’s motion to extend time to file an affidavit
of inability to pay costs. We then ordered the clerk of this court to send copies of the affidavit
and this order to the district clerk, the court reporter, and all parties. See TEX. R. APP. P.
20.1(d)(2).
       We further ordered any party who desired to file a contest to appellant’s affidavit of
indigence to file said contest in this court on or before January 9, 2015. See id. R. 20.1(e)(1).

        Appellee filed a timely contest to appellant’s affidavit of indigency. Accordingly,
pursuant to the Texas Rules of Appellate Procedure, we ordered this appeal abated, and we
remanded the matter to the trial court to hear evidence regarding appellant’s indigency and the
contest filed in this court by appellee and grant appropriate relief. See id. R. 20.1(h)(4). We
ordered the trial court to set a hearing and notify the parties and the appropriate court reporter of
the setting. See id. R. 20.1(i)(1). We further ordered the trial court to conduct the hearing, or
sign an order extending the time to conduct a hearing by January 23, 2015, within ten days of the
date of our order. See id. R. 20.1(i)(2)(B).

         Having received no information regarding the trial court’s ruling, the clerk’s office of the
court contacted the trial court. We were advised that the matter was not set for hearing and the
trial court has not rendered an order regarding appellant’s indigence. Rule 20.1(i)(2)(B) provides
that a trial court must conduct a hearing or sign an order extending the time to conduct a hearing
within ten days after it receives a contest referred by this court. We referred this matter to the
trial court by order dated January 13, 2015, but no hearing had been held. Rule 20.1(i)(4)
specifically states that unless the trial court sign an order sustaining the contest within the ten day
period for the hearing, the allegations in the affidavit of indigence will be deemed true. Id. R.
20.1(i)(4). In other words, if the trial court fails to sign a timely order, the party claiming
indigence will be deemed indigent.

        Accordingly, based on the foregoing, we ORDER the abatement lifted and the appeal
reinstated. We further ORDER that appellant is deemed indigent for purposes of this appeal.
She is therefore entitled to proceed without payment of fees and is entitled to a free record on
appeal. The clerk’s record was previously filed; only the reporter’s record remains to be filed.
We ORDER the court reporter to file the reporter’s record in this court on or before March 25,
2015 without cost to appellant. If there was no reporter’s record taken, we ORDER the court
reporter to notify this court in writing that no record was taken on or before March 5, 2015.

        We order the clerk of this court to serve this order on appellant, all counsel, the district
court clerk, the court reporter and the trial court.


                                                       _________________________________
                                                       Marialyn Barnard, Justice

       IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 23rd day of February, 2015.



                                                       ___________________________________
                                                       Keith E. Hottle
                                                       Clerk of Court
