


 
IN THE
TENTH COURT OF APPEALS










 

No. 10-06-00248-CV
 
In the
Interest of B.S., a Child
 
 
 

From the 82nd District Court
Robertson County, Texas
Trial Court No. 06-01-17,424-CV
 

DISSENTING Opinion





 
          The September 15, 2006 letter
misrepresented the events necessary to avoid dismissal of this appeal.  As the
Texas Supreme Court made clear in Higgins, it is not too late for
Higgins to establish her indigence and pursue her appeal.  Higgins v.
Randall County Sheriff’s Office, 193 S.W.3d 898 (Tex. 2006).  Nevertheless,
Phillips, via her attorney, was told by this Court that unless she had already
“obtained indigent status for purposes of appeal under Texas Rule of Appellate
Procedure 20, the payment of the fling [sic] fee is required.”  (Letter from
Tenth Court of Appeals dated September 15, 2006.)
This statement is contrary to the holding of the
Texas Supreme Court in Higgins.  It was not too late for Phillips to
file an indigence affidavit.  And, unless a challenge to it was sustained, it
was not too late to thus proceed without the advance payment of costs,
including the filing fee.
On the record before me, it is still not too
late for the indigence affidavit to be filed.  I, therefore, cannot yet vote to
dismiss Phillips’s appeal.
Until she is notified of what is necessary to
avoid dismissal and thereafter fails to take the necessary remedial action, we
cannot properly dismiss her appeal.  I note that we did not have to tell her what
action was necessary to avoid dismissal.  We could have simply told her the filing
fee had not been paid and given her a time period by which to respond.  But
having affirmatively misrepresented what action was necessary to prevent
dismissal, we cannot properly dismiss this appeal without correcting that
misrepresentation.
Accordingly, I respectfully dissent.
 
                                                          TOM
GRAY
                                                          Chief
Justice
 
Dissenting
opinion delivered and filed October 25, 2006

