
 NO. 07-01-0320-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

SEPTEMBER 21, 2001
______________________________

DESA WELLS,




		Appellant


V.

BRETON MILL APARTMENTS, 


		Appellee

_________________________________

FROM THE COUNTY CIVIL COURT AT LAW NO. 4 OF HARRIS COUNTY;

NO. 749,853; HON. CYNTHIA CROWE, PRESIDING
_______________________________
 
ON MOTION FOR REHEARING

________________________________

Before BOYD, C.J., QUINN and REAVIS, J.J.
	By an unpublished opinion dated August 28, 2001, this Court dismissed appellant
Desa Wells' appeal for failure to pay the required filing fee.  Within 15 days of that date,
Wells filed a motion requesting that the cause be reinstated and that she be permitted to
proceed as an indigent.  We treat the motion as one for rehearing.  
	Through the motion, Wells informs us that she was innocently misled by a lower
court clerk into believing that the affidavit of indigency filed with the trial court to obtain
leave to appear at trial as an indigent would also serve to establish her indigency for
appellate purposes.  Furthermore, upon determining that the advice given her was wrong,
see Holt v. F.F. Enterprises, 990 S.W.2d 756, 757-58 (Tex. App. - Amarillo 1998, pet.
denied) (requiring a new or current affidavit of indigence along with the notice of appeal),
she tendered a belated affidavit in July of 2001.  A copy of the July 2001 affidavit appears
of record, and it comports with the requirements of Rule 20.1(b) of the Texas Rules of
Appellate Procedure.  
	One wishing to pursue an appeal as an indigent must file an affidavit of indigence
"with or before the notice of appeal."  Tex. R. App. Proc. 20.1(c)(1).  Furthermore, this
requirement must be strictly construed.  Ford v. Whitehead, 2 S.W.3d 304, 306 (Tex.
App.-San Antonio 1999, no writ).  Yet, we have the authority to suspend, for good cause,
the operation of any rule of appellate procedure save those pertaining to the time for
perfecting an appeal.  Tex. R. App. Proc. 2.  Moreover, it is clear that perfecting an appeal
merely entails the filing of a timely notice of appeal.  Tex. R. App. Proc. 25.1 (stating that
the filing of a notice of appeal invokes the appellate court's jurisdiction).  And, if an appeal
is perfected and our jurisdiction attaches upon filing of a timely notice, then logic dictates
that the tender of an affidavit of indigence or an appropriate filing fee is not a prerequisite
to perfection.  In re Arroyo, 988 S.W.2d 737, 738 (Tex. 1998).  Similarly, if the tender of
neither an affidavit of indigence nor filing fee is a prerequisite to the perfection of an
appeal, it follows that the deadlines for tendering either are matters which can be altered
under Rule 2.   Finally, under the circumstances of this case, we find good cause for
invoking Rule 2, suspending the time period set forth in Rule 20.1(c)(1), and accepting
Wells' act of filing her affidavit of indigence in July of 2001 as compliance with Rule 20.1.
	Accordingly, we vacate our prior order of dismissal and reinstate the cause.

									Brian Quinn
									   Justice

 
Publish.

our mandates will issue forthwith.  
 
                                                                           Mackey K. Hancock
                                                                                     Justice




Do not publish.   

