                            Fourth Court of Appeals
                                    San Antonio, Texas
                                           May 12, 2016

                                       No. 04-16-00143-CV

                                           John CANO,
                                             Appellant

                                                 v.

                                          Briana CANO,
                                             Appellee

                   From the 408th Judicial District Court, Bexar County, Texas
                                Trial Court No. 2007-CI-08021
                        Honorable John D. Gabriel, Jr., Judge Presiding


                                          ORDER
         On March 22, 2016, appellant John Cano filed a notice of restricted appeal from the trial
court’s judgment dated January 13, 2016. Due to appellant’s failure to file a docketing statement
or pay the filing fee, this Court ordered appellant to show cause in writing within ten days that
either: (1) the filing fee has been paid; or (2) appellant is entitled to appeal without paying the
filing fee. Appellant filed an affidavit of inability to pay costs in this court; however, it appears
appellant did not file his affidavit in the trial court. See TEX. R. APP. P. 5, 20.1.

        A party who cannot pay the costs of an appeal must file an affidavit of indigence “in the
trial court with or before the notice of appeal.” TEX. R. APP. P. 20.1(c)(1). Appellant’s affidavit
was therefore due in the trial court on the date his notice of appeal was filed, or a motion for
extension of time to file the affidavit was due in this court fifteen days later. See TEX. R. APP. P.
20.1(c)(1), (3).

        We construe the affidavit filed in this court as a motion for extension of time to file the
affidavit in the trial court. Although the affidavit was filed outside the fifteen-day deadline set
forth in Rule 20.1(3), an untimely affidavit of indigence can be “adequate to fulfill the
fundamental purpose of Rule 20.1.” Higgins v. Randall County Sheriff’s Office, 257 S.W.3d 684
(Tex. 2008). Accordingly, we GRANT the motion to extend time to file an affidavit of inability
to pay costs.

        We ORDER the clerk of this court to send copies of the affidavit and this order to the
trial court clerk, the court reporter, and all parties. See TEX. R. APP. P. 20.1(d)(2).
       We further ORDER the deadline for filing a contest to the affidavit of indigence is May
23, 2016. Any contest must be filed in this court. See TEX. R. APP. P. 20.1(e)(1).



                                                  _________________________________
                                                  Jason Pulliam, Justice


       IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 12th day of May, 2016.



                                                  ___________________________________
                                                  Keith E. Hottle
                                                  Clerk of Court
