                                     NO. 07-08-0071-CV

                               IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL B

                                    JUNE 17, 2008
                           ______________________________

                                 KELLY JAMES STINSON,

                                                                  Appellant

                                               v.

                                 IMOGENE LESLEY, et al.,

                                                       Appellees
                         _________________________________

              FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;

                      NO. 95,881-A; HON. HAL MINER, PRESIDING
                         _______________________________

                               Abatement and Remand
                          _______________________________

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

       Appellant, Kelly James Stinson, an indigent inmate, filed suit against appellees

pursuant to Chapter 14 of the Civil Practice and Remedies Code. He has appealed from

the dismissal of those claims by the trial court and, in doing so, has requested multiple

extensions of time to file his brief because the district clerk has not provided him with a free

copy of the clerk’s record.
        A party who cannot pay the costs in an appellate court may proceed without

payment if he files an affidavit of indigence in accordance with the Rules of Appellate

Procedure, the affidavit is not contested, and the notice of appeal is timely. TEX . R. APP.

P. 20.1(a) & (c) (stating that an appellant must file the affidavit of indigence in the trial court

with or before the notice of appeal). Appellant timely filed an affidavit of indigence and his

notice of appeal; furthermore, no one contested the affidavit. However, before the trial

court clerk may be compelled to provide appellant with a free clerk’s record, the trial court

must hold that the appeal is not frivolous and that the clerk’s record is needed to decide

the issues to be presented on appeal. TEX . CIV. PRAC . & REM . CODE ANN . §13.003(a)(2)

(Vernon 2002); Kennedy v. Kennedy, 222 S.W.3d 97, 98 (Tex. App.–Austin 2006, no pet.);

Jackson v. Texas Bd. of Pardons & Paroles, 178 S.W.3d 272, 278-79 (Tex. App.–Houston

[1st Dist.] 2005, no pet.).

        Accordingly, we now order that the appeal be abated and the cause remanded to

the trial court. The trial court is ordered to schedule, notify the parties of and convene a

hearing and determine, in accordance with §13.003(a)(2) of the Civil Practice and

Remedies Code, Kennedy, and Jackson, whether appellant desires to prosecute his

appeal, whether the issues he intends to assert are frivolous, and whether the clerk’s

record is needed to decide the issues appellant intends to assert on appeal.1 The trial

court need not require the parties or attorneys to physically appear at the hearing but may

conduct same via means that afford appellant reasonable access to the court and



        1
         W e realize that the trial court has already determ ined appellant’s claim s to be frivolous with respect
to defendant Herbert D. Everitt based on the trial court’s order of dism issal but that determ ination has not
been specifically m ade with respect to the other defendants.

                                                        2
opportunity to discuss the issues he intends to assert on appeal, explain why they are not

frivolous, and disclose why the clerk’s record is needed.

         The trial court is further ordered to cause the hearing to be transcribed and execute

findings of fact and conclusions of law addressing the foregoing issues within thirty days

of this order. Should the trial court determine that appellant desires to appeal, his appeal

is not frivolous, and the clerk’s record is needed to decide the issues, then it shall order the

district clerk of Potter County, Texas, to immediately prepare and deliver a copy of the

clerk’s record to appellant at his last known address and free of charge.2 See TEX . GOV’T

CODE ANN . §22.221(a) (Vernon 2004); In re Washington, 7 S.W.3d 181, 182 (Tex. App.–

Houston [1st Dist.] 1999, orig. proceeding) (stating that a district clerk may be ordered to

perform a ministerial duty when it is necessary to enforce an appellate court’s jurisdiction).

It is finally ordered that the trial court cause to be filed with the clerk of this court a

transcription of the hearing held and its findings of fact and conclusions of law executed

pursuant to this order within thirty days of the date of this order. If additional time is

needed to perform the directed tasks, the trial court shall request it within thirty days of this

order.

         It is so ordered.

                                                           Per Curiam




         2
           Because no one contested appellant’s affidavit of indigence, the issue of whether appellant is
indigent cannot be addressed at the hearing. It is presum ed, as a m atter of law, that he is indigent. Higgins
v. Randall County Sheriff’s Office, No. 06-0917, 2008 Tex. LEXIS 455 at *9 (Tex. May 16, 2008) (holding that
it is presum ed the appellant is indigent when no one contests his affidavit of indigence).

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