David Allan Edwards v. Gerald B. Phillips, M.D. ( 2014 )

County
Fourth Court of Appeals
San Antonio, Texas
January 23, 2014
No. 04-13-00725-CV
David Allan EDWARDS,
Appellant
v.
COUNTY OF ATASCOSA,
Appellee
From the 81st Judicial District Court, Atascosa County, Texas
Trial Court No. 12-02-0185-CVA-A
Honorable Thomas F. Lee, Judge Presiding
ORDER
Appellant David Allan Edwards, an inmate acting pro se, filed a notice of appeal in the
trial court on October 16, 2013. In his notice of appeal, Appellant stated that he is currently
incarcerated and indigent. On December 31, 2013, we ordered Appellant to file (1) a separate
affidavit listing the previous pro se actions he has brought and (2) a certified copy of his inmate
trust account statement. See TEX. CIV. PRAC. & REM. CODE ANN. § 14.004 (West Supp. 2013).
On January 8, 2014, Appellant filed his response to our December 31, 2013 order; the order is
satisfied.
Appellant also asserts he is indigent and cannot pay the costs of this appeal. An appellant
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); see Higgins v. Randall County
Sheriff’s Office, 257 S.W.3d 684, 688 (Tex. 2008). Appellant’s affidavit was due in the trial
court not later than October 16, 2013, the date the notice of appeal was filed, or a motion for
extension of time to file the affidavit was due in this court fifteen days later, on October 31,
2013. See id. R. 20.1(c)(1), (3). Appellant filed his affidavit of indigence in this appeal with this
court on December 20, 2013. Our record does not show Appellant timely filed an affidavit of
indigence with the trial court; however, an untimely, uncontested 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, 688 (Tex. 2008).
Accordingly, the clerk of this court is DIRECTED to forward a copy of Appellant’s
affidavit to the trial court clerk for filing in that court.
This appeal is ABATED, and the trial court clerk, court reporter, or any party can file a
contest to the affidavit in the trial court in accordance with Rule 20.1(e) within TEN DAYS
from the date of this order. See TEX. R. APP. P. 20.1(e) (requiring persons to file any contest to
the affidavit “in the court in which the affidavit was filed”). If a contest is timely filed, the trial
court is ORDERED to proceed in accordance with Rule 20.1(i). See id. R. 20.1(i).
If no contest is filed or if a contest is overruled, the trial court is ORDERED to determine
whether or not the appeal is frivolous. See TEX. CIV. PRAC. & REM. CODE ANN. § 14.003 (West
2002).
The trial court clerk is ORDERED to file a supplemental clerk’s record containing all
filings and orders relating to the affidavit of indigence no later than (1) TWENTY DAYS from
the date of this order if no timely contest is filed, or (2) FORTY-FIVE days from the date of this
order if a timely contest to the affidavit is filed. In the event a contest is filed, the court reporter
responsible for transcribing the record of the hearing on the contest is ORDERED to file a
reporter’s record from the hearing no later than FORTY-FIVE days from the date of this order.
The clerk of this court is DIRECTED to send a copy of this order and a copy of the
affidavit to the parties, the trial court clerk, the court reporter, and the trial court judge. See TEX.
R. APP. P. 20.1(d)(2).
All other appellate deadlines are SUSPENDED pending further order of this court.
_________________________________
Patricia O. Alvarez, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 23rd day of January, 2014.
___________________________________
Keith E. Hottle
Clerk of Court