Daniel T. Morris v. Luis H. Haro, MD

Opinion issued July 24, 2003 In The Court of Appeals For The First District of Texas ____________ NO. 01-02-01160-CV ____________ DANIEL THOMAS MORRIS, Appellant V. LUIS HUMBERTO HARO, M.D. AND MEMORIAL HOSPITAL SYSTEMS, INC., Appellees On Appeal from the 281st District Court Harris County, Texas Trial Court Cause No. 2001-09037 MEMORANDUM OPINION This is an appeal from an order signed by the trial courton October 18, 2002. No post-judgment motions were filed. A timely notice of appeal was filed on October 28, 2002. The record was due on November 7, 2002. Both the clerk’s record and the reporter’s record have not been filed due to appellant’s nonpayment. On February 13, 2003, this Court ruled as follows: (1)Pursuant to Rule 37.3(b), appellant is notified that unless, within 30 days of the date of this order, he cures the failure to file the clerk’s record and reporter’s record due to his nonpayment for preparation, the appeal will be dismissed for want of prosecution without further notice. (2)Unless within 15 days of the date of this order, appellant pays the $125 filing fee to the Clerk of this Court, the appeal will be dismissed without further notice. Finley v. J.C. Pace Ltd., 4 S.W. 3d 319, 321-22 (Tex. App.—Houston [1st Dist.] 1999) (order); Negrini v. Smith, Nelson & Clement P.C., 998 S.W. 2d 362, 363 (Tex. App.–Houston [1st Dist.] 1999, no pet.). On March 10, 2003, appellant paid the $125 filing fee. However, he has not paid the District Clerk and the court reporter for the preparation of their respective portions of the record. Instead, in early March, in the trial court, appellant filed a “Motion to Reinstate In Forma Pauperis Status and to Order the Clerk and Reporter to Prepare the Records for Appeal.” Appellees filed an opposition to the motion, objecting that the trial court had lost jurisdiction of the case. The trial court agreed and, on March 25, 2003, signed an order dismissing the motion for lack of jurisdiction. In response to this Court’s February 13, 2003 order and the trial court’s March 25, 2003 order, appellant has filed with this Court a “Motion to Supplement Appellate Memorandum in Response to the Court’s Order of February 25, 2003" and a “Supplemental Memorandum in Support of Appellate Relief.” In these documents, appellant asserts that the trial court has improperly revoked his in forma pauperis status. Although appellant previously filed an affidavit of indigence, pursuant to Texas Rule of Civil Procedure 145, to proceed in the trial court without payment of costs, he was required to file a separate post-judgment affidavit of indigence, under Texas Rule of Appellate Procedure 20.1, to invoke indigency status on appeal. Holt v. F.F. Enter., 990 S.W.2d 756, 758 (Tex. App.—Amarillo 1998, pet. denied). An affidavit of indigence must be filed with or before the notice of appeal. Tex. R. App. P. 20.1(c)(1). Appellant’s affidavit of indigence, filed with his first notice of appeal in June 2002, does not apply to his subsequent notice of appeal of the trial court’s October 18, 2002 order. Because appellant did not file a separate post-judgment affidavit of indigence with or before his notice of appeal of the October 18, 2002 order, he is not entitled to have the District Clerk and the court reporter prepare the record without advance payment of their costs. Appellant has not complied with this Court’s February 13, 2003 order to, within 30 days of the date of the order, cure the failure to file the clerk’s record and reporter’s record due to his nonpayment for their preparation. Accordingly, we dismiss appellant’s appeal for want of prosecution. See Tex. R. App. P. 37.3(b); 42.3(b), ©). All pending motions are denied as moot. PER CURIAM Panel consists of Justices Hedges, Jennings, and Keyes.