Kelly James Stinson v. Imogene Lesley ( 2008 )

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).
3