John B. Kennedy v. State ( 2013 )

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER
Appellate case name: John B. Kennedy v. The State of Texas
Appellate case number: 01-12-01142-CV
Trial court case number: 1237940
Trial court: 178th District Court of Harris County
Appellant, John B. Kennedy, appeals the trial court’s order denying his motion for
restoration of allegedly stolen property, namely, $702,792.99 in currency. The trial court
ordered that the currency be awarded to the Harris County District Attorney’s Office, pursuant to
Texas Code of Criminal Procedure article 47.02. See TEX. CODE CRIM. PROC. ANN. art. 47.02
(West Supp. 2012). The determination of the ownership of the currency is a civil matter. See
Four B’s Inc. v. State, 902 S.W.2d 683, 684–85 (Tex. App.—Austin 1995, writ denied); see also
Bretz v. State, 508 S.W.2d 97, 97–98 (Tex. Crim App. 1974) (dismissing for lack of jurisdiction
and stating that appeal from order under article 47.02 lies in the courts of civil appeals and
supreme court).
Appellant has filed a motion for extension of time to file the reporter’s record, asserting
that he is indigent and requesting appointment of counsel.
First, generally, a civil litigant has no state or federal constitutional right to the
appointment of counsel. See Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 26–27, 101 S. Ct.
2153, 2159 (1981); Travelers Indem. Co. v. Mayfield, 923 S.W.2d 590, 593 (Tex. 1996).
Whether to appoint counsel in a civil case is a question for the trial court. See TEX. CIV. PRAC. &
REM. CODE ANN. § 24.016 (West 2004); Coleman v. Lynaugh, 934 S.W.2d 837, 839 (Tex.
App.—Houston [1st Dist.] 1996, no writ). Appellant’s motion requesting that this Court appoint
counsel to represent him in this civil appeal is dismissed.
Next, the Court’s records do not reflect that appellant has established indigence in this
appeal in accordance with Rule of Appellate Procedure 20.1. See TEX. R. APP. P. 20.1
(governing indigence in civil appeals); Four B’s Inc., 902 S.W.2d at 684–85 (noting that
proceedings to restore property are similar to forfeiture proceedings, and applying civil rules).
On May 17, 2013, the Court notified appellant that the Court’s records do not reflect that
appellant has either established indigence or paid the $175 filing fee. See TEX. R. APP. P. 5.
Unless appellant, no later than 15 days after the date of this order, either files proof that he
has established indigence in this civil appeal or pays the filing fee, the appeal may be dismissed
without further notice. See TEX. R. APP. P. 5 (providing that person who is not excused by statute
or rule from paying costs must pay, at time item is filed, required fees, and authorizing
enforcement); 42.3 (authorizing involuntary dismissal of appeal); see also One 1995 GMC
Pickup v. State, No. 05-03-00399-CV, 2003 WL 1870562, at *1–2 (Tex. App.—Dallas Apr. 14,
2003, no pet.) (mem. op.) (dismissing for failure to establish indigence under Rule 20.1 and
failure to pay filing fee).
Finally, appellant’s motion for extension of time to file the reporter’s record is granted.
After compliance with the above regarding the filing fee, appellant must file in this Court, no
later than 30 days after the date of this order, proof that he has either (1) established indigence
in this appeal or (2) has paid or made arrangements to pay the reporter’s fee for preparing the
record.
It is so ORDERED.
Judge’s signature: /s/ Laura C. Higley
Acting individually  Acting for the Court
Date: June 20, 2013