Motion Granted and Order filed June 15, 2015




                                       In The

                     Fourteenth Court of Appeals
                                    ____________

                               NO. 14-14-01019-CV
                                    ____________

                         NEWELL M. EVANS, Appellant

                                          V.

                       THEODORE P. FULLER, Appellee


                    On Appeal from the 240th District Court
                            Fort Bend County, Texas
                     Trial Court Cause No. 11-DCV-187877

                                      ORDER

      Appellant has filed a motion challenging the trial court’s order sustaining a
contest to appellant’s affidavit of indigence.

      This is an appeal from a judgment signed December 22, 2014. The notice of
appeal was filed January 29, 2015. On June 10, 2014, more than six months before
the judgment was signed, appellant filed a premature notice of appeal in the trial
court. He also filed a document entitled “Unsworn Declaration of Inability to Pay
any part of Cost of Court, provide Appeal Bond or give Security for Cost of
Court.” The record does not reflect that any document concerning indigence was
filed between December 22, 2014, the date the judgment was signed, and January
29, 2015, the date appellant filed his notice of appeal from that signed judgment.

      On February 2, 2015, appellant filed, in this court, an “unsworn declaration
of indigence,” by which he asked to proceed without advance payment of costs.
See Tex. R. App. P. 20.1(a)(2). On February 9, 2015, court reporter Elizabeth
Wittu filed, in the trial court, a contest to appellant’s affidavit of inability to pay
costs. See Tex. R. App. P. 20.1(e). A hearing was scheduled on the contest for
February 18, 2015. According to the trial court’s docket sheet, appellant did not
appear that day, and counsel for appellee passed the hearing until the following
day. The docket sheet reflects no party or lawyer appeared for the hearing on
February 19. On February 24, 2015, associate judge Pedro Ruiz made a notation in
the docket sheet that he had taken judicial notice of the file, and appellant’s
“request for relief” was denied in camera.

      This court sent a letter to the district court on April 7, 2015, in which we
wrote in relevant part:

              On February 2, 2015, appellant filed in this court an affidavit of
      indigence. The affidavit, which was filed in this court in error, is
      being sent to the trial court clerk as an attachment to this notice. See
      Tex. R. App. P. 20.1(c)(1). This court is unaware of whether an
      affidavit of indigence was filed in the trial court. The trial court clerk
      is instructed to note the date the affidavit is received in the trial court,
      but to file the affidavit effective as of the date the affidavit was filed
      in this court. If an affidavit has also been filed in the trial court, the
      court is instructed to proceed as usual with the affidavit in the trial
      court and notify this court of its ruling.

      Following our letter, a hearing on appellant’s affidavit of indigence was
scheduled for April 28, 2015. The docket sheet indicates the hearing was reset for
May 7, 2015. On May 13, 2015, the associate judge again made an entry on the
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docket sheet that the court was unable to find appellant indigent.

         Appellant filed a motion in this court on June 3, 2015, challenging the trial
court’s order sustaining the contest to indigence.1 On June 4, 2015, we ordered the
district clerk to file a supplemental clerk’s record with the trial court’s order
sustaining the contest to indigence, or, if no such order exists, a certified statement
to that effect. On June 8, an affidavit of Lisa Tucker, an appeal clerk of the Fort
Bend County District Clerk’s Office, was filed in this court. The affidavit states:
“As of today’s date there is only a docket sheet entry dated 5/13/15 stating that the
Application for Indigency [sic] was denied.”

         We first consider whether appellant timely filed his affidavit of indigence.
An affidavit of indigence must be filed in the trial court with or before the notice of
appeal. Tex. R. App. P. 20.1(c)(1). Appellant filed two affidavits: one on June 10,
2014, contemporaneously with his premature notice of appeal, and a second on
February 2, 2015, four days after his notice of appeal following the trial court’s
judgment. An appellate court may extend the time to file an affidavit of indigence
if party moves for an extension within 15 days after the deadline for filing the
affidavit. Tex. R. App. P. 20.1(c)(3). Appellant did not file a motion for extension
to file his affidavit of indigence. However, a court of appeals may treat actions
taken before an appealable order is signed as relating to an appeal of that order and
give them effect as if they had been taken after the order was signed. Tex. R. App.
P. 27.2. Therefore, we will treat appellant’s June 10, 2014 affidavit as having been
filed on January 29, 2015, the day appellant filed his notice of appeal.

         Any contest to the affidavit of indigence must be filed no later than 10 days
after the affidavit was filed. The trial court must conduct a hearing on the contest

1
  Appellant says he did not receive notice of the trial court’s ruling until May 26, 2015. He contends that his motion,
filed eight days after he received notice, is timely. Tex. R. App. P. 20.1(j)(2).


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within 10 days after the contest is filed, unless the court has granted an extension
of time of no more than 20 days for the hearing. Tex. R. App. P. 20.1(i)(2), (3).
Unless the trial court signs an order sustaining the contest within the time period
set for the hearing, the allegations in the affidavit will be deemed true and the party
will be allowed to proceed without the advance payment of costs. Tex. R. App. P.
20.1(i)(4). The trial court clerk must then prepare the appellate record without
prepayment. Tex. R. App. P. 20.1(j).

      Wittu’s contest was timely filed. See Tex. R. App. P. 20.1(e)(1). A hearing
was timely held, even though appellant did not appear. See Tex. R. App. P.
20.1(i)(2)(a). However, no order sustaining the contest to appellant’s claim of
indigence was signed within the required time period. A docket entry cannot be
substituted for a written order when that order is required to be made within a
certain amount of time. See Walker v. Harrison, 597 S.W.2d 913, 915-16 (Tex.
1980) (orig. proceeding). Accordingly, appellant is deemed INDIGENT for
purposes of appeal.

      Therefore, we order the Fort Bend County District Clerk to prepare and file
a supplemental clerk’s record containing the required contents listed in Texas Rule
of Appellate Procedure 34.5(a) that were not included in the records already filed.
If any required items are not part of the case file, the supplemental clerk’s record
shall contain a certified statement that the omitted item is not part of the file. The
supplemental clerk’s record shall be due within 30 days of the date of this order.

                                 PER CURIAM



Panel consists of Justices Boyce, McCally, and Donovan.



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