Roger Lynn Davis v. James R. Zeller

NO. 07-02-0456-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL C MARCH 3, 2003 ______________________________ ROGER LYNN DAVIS, Appellant v. JAMES R. ZELLER, Appellee _________________________________ FROM THE 258 TH DISTRICT COURT OF POLK COUNTY; NO. CIV19,795; HON. LEE ALLWORTH, PRESIDING _______________________________ Before JOHNSON, C.J., and QUINN and REAVIS, JJ. Appellant Roger Lynn Davis filed a notice of appeal on October 7, 2002. The clerk’s record was filed on October 29, 2002, and Davis’ brief was due to be filed on January 16, 2003. It was not filed, but instead Davis filed a document entitled “Appellant’s Request to Abate the Appeal and Request for Extension of Time Within Which to Obtain a Ruling from the District Trial Court on a Postjudgment Request for Finding of Facts and Conclusion of Law.” On January 13, 2003, this court denied the motion to abate the appeal and extended the deadline by which appellant was to file his brief to February 21, 2003. We also told him that the failure to file a brief by February 21 st would result in the dismissal of the appeal for want of prosecution. February 21 st has lapsed and no brief has been received. Accordingly, we dismiss the appeal pursuant to Texas Rule of Appellate Procedure 42.3(b) for want of prosecution. Per Curiam 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 47 TH 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 [1 st 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. (footnote: 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 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. (footnote: 2) See Tex. Gov’t Code Ann. §22.221(a) (Vernon 2004); In re Washington, 7 S.W.3d 181, 182 (Tex. App.– Houston [1 st 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 FOOTNOTES 1: 2: