Jessica Borsellino v. Charles A. Borsellino ( 1994 )

Borsellino v. Borsellino

IN THE

TENTH COURT OF APPEALS

No. 10-94-201-CV

     JESSICA BORSELLINO,

                                                                                              Appellants

     v.

     CHARLES A. BORSELLINO,

                                                                                              Appellee

From the 13th District Court

Navarro County, Texas

Trial Court # 94-00-03933-CV

MEMORANDUM OPINION

      Jessica Borsellino attempts to appeal from an alleged judgment of the court denying her petition for divorce. She has twice filed motions for extension of time to file an affidavit of inability to pay costs. See Tex. R. App. P. 40(a)(3). She alleged in her first motion that she was awaiting the court's findings of fact and conclusions of law before determining her steps on appeal. In the second motion she claimed that the court has refused to enter an order denying her divorce, "thus effectively thwarting the appeals process." Under either set of facts, we conclude that we do not have jurisdiction and, thus, dismiss the appeal.

      A civil litigant who is not exempt from paying costs may perfect an appeal in one of three ways—filing a cost bond, filing a cash deposit for costs, or filing an affidavit stating that she is unable to pay the costs of the appeal. Id. 40(a)(1), (3); White v. Schiwetz, 793 S.W.2d 278, 279 (Tex. App.—Corpus Christi 1990, no writ). Generally, only governmental entities and their agents are exempt from paying costs. See Tex. Civ. Prac. & Rem. Code Ann. §§ 6.01-6.03 (Vernon 1986 & Supp. 1994). When a private appellant is unable to pay the costs of the appeal, she must file her affidavit of inability to pay within thirty days of the signing of the final order. See Tex. R. App. P. 40(a)(3)(A), 41(a)(1).

      In her first motion for extension of time, filed June 23, 1994, Borsellino alleged that the thirty-day time period expired on June 10. Thus, she claimed that her motion was within the fifteen-day period allowed by the rules for requesting an extension of time. See id. 41(a)(2). We granted her motion extending the time for filing an affidavit of inability to pay cost to June 25, the exact extension she requested. However, nothing has been filed in this court which indicates that she met the deadline.

      If the court did deny her divorce petition sometime in the spring, we no longer have the power to authorize an extension of time to file an affidavit of inability to pay costs. See id.; El Paso Sharky's v. Amparan, 831 S.W.2d 3, 5 (Tex. App.—El Paso 1992, writ denied). Perfecting the appeal is a requirement to invoke our jurisdiction. See id. Thus, we have no jurisdiction over this appeal under the facts alleged in her first motion for extension of time.

      In her second motion for extension, filed November 17, she alleges that the court's refusal to enter the order denying her petition has forced her to request an extension of time. If no order denying her petition has yet been entered, then there is no signed judgment to trigger the running of the thirty-day period for filing her affidavit and no extension of time is necessary. See Tex. R. App. P. 41(a)(1). Furthermore, there is no appealable order, which is necessary to invoke our jurisdiction. See Tex Civ. Prac. & Rem. Code Ann. § 51.012 (Vernon 1986). Again, we have no jurisdiction over her appeal under the facts alleged in her second motion for extension of time.

      Therefore, we dismiss this cause for want of jurisdiction.

                                                                               PER CURIAM

Before Chief Justice Thomas,

      Justice Cummings, and

      Justice Vance

Dismissed

Opinion delivered and filed December 7, 1994

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