




Dismissed and Opinion filed March 22, 2007







Dismissed
and Opinion filed March 22, 2007.
 
 
In The
 
Fourteenth Court of
Appeals
____________
 
NO. 14-06-00720-CV
____________
 
IN THE INTEREST OF M.A.
 

 
On Appeal from the
314th District Court
Harris County, Texas
Trial Court Cause No.
2005-00215J
 

 
O P I N I O N
This is
an accelerated appeal from a judgment signed July 14, 2006.  The notice of
appeal was due August 3, 2006.  See Tex.
R. App. P. 26.1(b).  Appellant,
however, filed her notice of appeal on August 15, 2006, a date within 15 days
of the due date for the notice of appeal.  See Verburgt v. Dorner, 959
S.W.2d 615, 617 (Tex. 1997) (holding that a motion for extension of time is Anecessarily implied@ when the perfecting instrument is
filed within fifteen days of its due date).  Accordingly, we conclude the
notice of appeal was timely filed. 




On
September 7, 2006, appellant filed an affidavit of inability to pay costs.  On
September 18, 2006, the Harris County District Clerk filed a contest to
appellant=s affidavit.  The trial court heard the contest on September 28, 2006. 
The record before this court does not contain an order reflecting the trial
court=s ruling on the contest.
Texas
Rule of Appellate Procedure 20.1(c)(1) requires an affidavit of indigence to be
filed in the trial court with or before the notice of appeal.  The appellate
court may extend the time to file an affidavit of indigence if, within 15 days after
the deadline, the party files a motion under Rule 10.5(b) in the appellate
court.  In the case at bar, the latest date the notice of appeal could have
been filed and considered timely was August 18, 2006.  Thus, even with an
extension of time, the latest date on which an affidavit of indigence could
have been filed was September 4, 2006.  In the instant case, the affidavit was
not filed until September 14, 2006.  We recognize that the Texas Supreme Court=s recent decision in Higgins v.
Randall County Sheriff=s Office, 193 S.W.3d 898 (Tex. 2006), appears
to allow an affidavit of indigence to be filed much later.  In Higgins,
the affidavit was filed 133 days after the notice of appeal.  See Higgins v.
Randall County Sheriff=s Office, No. 07-05-0004-CV, 2005 WL 148764
(Tex. App. B Amarillo, 2005), rev=d 193 S.W. 3d 898 (Tex. 2006).  However, Higgins
did not involve the termination of parental rights and the mandatory deadlines
of Section 263.405 of the Texas Family Code.  




Section
263.405(d) provides the trial court shall hold a hearing not later than the
thirtieth day after the date the final order is signed to determine whether a
party=s claim of indigence, if any, should
be sustained.  Under subsection (e), if the court does not render a written
order denying the claim of indigence or requiring the person to pay partial
costs before the 36th day after the date the final order being appealed is
signed, the court shall consider the person to be indigent.    If we applied
the rule in Higgins, to cases such as this one, an affidavit of
indigence filed more than thirty-six days after the final order is signed would
either (1) entitle the appellant to indigent status because it would be too
late for the trial court to deny the claim, or (2) require the trial court, and
consequently the court of appeals, to ignore the statutory deadline.  Both
scenarios violate the rules of statutory construction by rendering meaningless
either Texas Rule of Appellate
Procedure 20.1 or section 263.405
of the Texas Family Code.  Consistent
with traditional statutory construction principles, the more specific statute,
section 263.405 of the Texas Family Code, should control over the more general
Rule 20.1, as interpreted by the Texas Supreme Court in Higgins, 193
S.W.3d at 898.  See Horizon/CMS Healthcare Corporation v. Auld, 34
S.W.3d 887, 901 (Tex. 2000).  Moreover, applying Higgins to cases
involving the termination of parental rights would frustrate the Legislature=s intent in enacting those deadlines
to reduce post-judgment delays in these types of cases.  Therefore, we hold Higgins
is not applicable to appeals from the termination of parental rights in which
the affidavit of indigence is filed more than thirty-six days after the day the
final order is signed. 
In this
case, the final order was signed July 14, 2006.  The thirtieth day after that
date was August 13, 2006, a Sunday, and the thirty-sixth day after that date
was August 19, 2006, a Saturday.  Accordingly, the trial court had to hold a hearing
not later than August 14, 2006, and had to render a written order not later
than August 20, 2006.  Appellant=s affidavit was not filed until
September 14, 2006, after both deadlines and therefore was untimely.
On
December 21, 2006, we ordered appellant to pay the filing fee in the amount of
$125.00 to the clerk of this court on or before December 27, 2006.  See Tex. R. App. P.  5.  Appellant was
given notice
that if appellant failed to timely pay the filing fee in accordance with the
order, the appeal was subject to dismissal.  See Tex. R.
App. P. 42.3.  Further, appellant was directed to pay or make
arrangements to pay for the record in this appeal.  See Tex. R. App. P. 35.3(a)(2).  Appellant
was given notice that if appellant failed to provide this court with proof of
payment for the record within fifteen days of the date of the order, the appeal
was subject to dismissal for want of prosecution.  See Tex. R. App. P. 37.3(b).




To date,
appellant has filed no response.  Accordingly, the appeal is ordered
dismissed.  See Tex. R. App. P. 42.3(c)
(allowing
involuntary dismissal of case because
appellant has failed to comply with notice from clerk requiring response or
other action within specified time).  
 
 
PER
CURIAM
 
 
Judgment rendered and Opinion filed March 22, 2007.
Panel consists of Justices Frost, Seymore, and Guzman.
Publish.
 

