Motion Granted; Order filed June 2, 2016




                                         In The

                      Fourteenth Court of Appeals
                                     ____________

                                NO. 14-16-00222-CV
                                     ____________

                            OMAR VALDES, Appellant

                                           V.

                            WHATABURGER, Appellee


                      On Appeal from the 55th District Court
                              Harris County, Texas
                        Trial Court Cause No. 2015-57179

                                       ORDER

      On May 4, 2016, appellant, who is appearing pro se, filed a timely motion in
this court challenging the trial court’s April 26, 2016, ruling sustaining a contest to
his affidavit of indigence. See Tex. R. App. P. 20.1(j)(1), (2). When a motion to
review the trial court’s ruling on indigence is filed, the trial court clerk and the court
reporter must prepare, certify, and file the record of the hearing on the contest to the
claim of indigence within three days after the motion is filed. See Tex. R. App. P.
20.1(j)(3). A supplemental clerk’s record was filed May 12, 2016, but no reporter’s
record of the hearing has been filed.

      Under the unambiguous language of Rule 20.1(j), if the appellate court does
not deny a motion under Rule 20.1(j) within ten days after the motion is filed, this
motion is granted by operation of law. Tex. R. App. P. 20.1(j)(4). Even if the trial
court clerk and the court reporter prepare, certify, and file the hearing record within
three days after the motion is filed, the appellate court has less than a week to review
the record and rule on the merits of the motion. If the trial court clerk and the court
reporter file the hearing record after this deadline, but within ten days after the filing
of the motion, this court has a very short time to rule on the merits. If the trial court
clerk and the court reporter do not file the hearing record within ten days after the
filing of the motion, as in this case, this court has no ability to review the merits of
the motion, and the motion is granted by operation of law regardless of whether the
motion has merit. Tex. R. App. P. 20.1(j)(4). This new rule places a heavy burden
on the trial court clerk and the court reporter to act expeditiously in preparing,
certifying, and filing the hearing record. If they fail to do so, then under the
applicable procedure, this court has no ability to review the merits of the motion.

      More than ten days have passed since the motion was filed and appellant’s
motion was granted by operation of law. Accordingly, appellant may proceed on
appeal without the advance payment of costs.

      Therefore, we ORDER the Harris County District Clerk and the official court
reporter for the 55th District Court, to prepare, certify, and file the appellate record
without the advance payment of costs. See Tex. R. App. P. 20.1(k). The record will
be due in this court 30 days from the date of this order.

                                    PER CURIAM
