                                   NO. 07-05-0337-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL C

                                  NOVEMBER 8, 2005

                          ______________________________

                             IN THE MATTER OF D.L.C.
                        _________________________________

                FROM THE COUNTY COURT OF SWISHER COUNTY;

                  NO. 387; HONORABLE HAROLD KEETER, JUDGE
                        _______________________________


Before QUINN, C.J., and REAVIS and HANCOCK, JJ.


                            ON ABATEMENT AND REMAND


       Appellant D.L.C., a juvenile, appeals the trial court’s Order of Adjudication and

Disposition (TYC Committment) which found that D.L.C. had engaged in delinquent

conduct and placed him with the Texas Youth Commission for an indeterminate sentence

not to exceed his 21st birthday. D.L.C. timely filed a notice of appeal on September 23,

2005. By letter, dated September 26, this court notified D.L.C. that the $125 filing fee had

not been paid. In response, on October 10, D.L.C. filed with this court Appellant’s Motion

for Extension of Time to File Appeal Fee and an Affidavit of Inability to Pay Costs.
       Section 56.01(b) of the Texas Family Code provides that the requirements

governing a juvenile appeal are as in civil cases generally. TEX . FAM . CODE ANN . § 56.01(b)

(Vernon 2002). Texas Rule of Appellate Procedure 20.1(c)(1) and (3)1 requires that an

affidavit of indigence be filed in the trial court with or before the notice of appeal, but allows

the appellate court to extend the deadline if, within 15 days of the filing of the notice of

appeal, the appellant files a motion to extend time that complies with Rule 10.5(b). Were

this a regular appeal, we would be compelled to find that, because appellant had failed to

comply with Rule 20.1(c)(1) and (3), he was not entitled to proceed on appeal without

advance payment of costs.            See Holt v. F.F. Enters., 990 S.W.2d 756, 759

(Tex.App.–Amarillo 1998, pet. denied). However, the Texas Supreme Court has held that

Rule 20.1 does not apply to appeals under the Juvenile Justice Code. See In the Matter

of K.C.A., 36 S.W.3d 501, 502 (Tex. 2000). Rather, the provisions of the Texas Family

Code apply and a finding of indigence can be predicated on either a hearing or an affidavit

by the child’s parent. Id. at 503. The appropriate forum for such a determination is the trial

court. In the Matter of L.P., 51 S.W.3d 855, 855 (Tex.App.–Houston [1st Dist.] 2001, no

pet.) (citing In the Matter of K.C.A., 36 S.W.3d at 503).


       Therefore, we abate the appeal and remand the matter to the trial court. Upon

remand, the judge of the court shall immediately cause notice to be given of and conduct

a hearing to determine whether the juvenile is indigent.




       1
       Further reference to Texas Rules of Appellate Procedure will be by reference to
“Rule __.”

                                                2
      In support of its determination, the trial court shall prepare and file written findings

of fact and conclusions of law and cause them to be included in a supplemental clerk’s

record. The hearing proceedings shall be transcribed and included in a supplemental

reporter’s record. These supplemental records shall be submitted to the clerk of this court

no later than December 5, 2005.




                                          Per Curiam




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