Not paying for the clerk’s record because indigent

Texas Case Law

ESTRADA v. DALLAS COUNTY, 05-05-01324-CV (Tex.App. [5th
Dist.] 2006) JOHN A. ESTRADA, SR., Appellant, v. DALLAS
COUNTY, DALLAS COUNTY DISTRICT CLERK JIM HAMLIN, DISTRICT
ATTORNEY WILLIAM HILL, JR., ASSISTANT DISTRICT ATTORNEY
JOHN GRAU, ASSISTANT DISTRICT ATTORNEY MARGARET KELIHER,
ASSISTANT DISTRICT ATTORNEY GRANT BRENNA, TEXAS BOARD OF
PARDONS AND PAROLES, TEXAS BOARD OF CRIMINAL JUSTICE, JUDGE MARK TOLLE, CRIMINAL DISTRICT COURT NO. 3 OF DALLAS COUNTY, JUAN M. CONTRERAS, JOHN H. HAGLER, ASSISTANT DISTRICT ATTORNEY NANCY ROBB, GRAND PRAIRIE MUNICIPAL COURT, ALFREDO CAMPOS JR., MICHAEL MORROW, AND RON GOETHALS DIRECTOR, Appellees. No. 05-05-01324-CV Court of Appeals of Texas, Fifth District, Dallas. Opinion Filed April 11, 2006.

Case Number: 05-05-01324-CV 09/08/2006 Petition / Review
under Rule 53 DO Proceeding denied 10/27/2006 M/O for
Rehearing DO Proceeding denied

On Appeal from the 192nd Judicial District Court, Dallas
County, Texas, Trial Court Cause No. 05-05777-K.

Dismiss.

Before Justices WRIGHT, O’NEILL, and FRANCIS.

MEMORANDUM OPINION

PER CURIAM.

The Court has before it appellant John A. Estrada, Sr.’s
April 3, 2006 “Response to letter dated March 22.” In his
letter, appellant asserts that he will not be paying for
the clerk’s record in this appeal because he is indigent.

By order dated January 12, 2006, we ordered the trial court
to conduct a hearing to determine whether appellant was
indigent and abated the appeal to allow the trial court to
comply with our order. We reinstated the appeal on January
30, 2006 upon receiving a supplemental clerk’s record
containing the trial court’s findings pursuant to the
hearing. We adopted the trial court’s findings that
appellant did not file an affidavit of indigence with his
notice of appeal and concluded that appellant was not
indigent. We noted that the clerk’s record was due on
December 14, 2006 and that the clerk had already prepared
the clerk’s record and was awaiting payment of the $229
fee. We ordered appellant to file written verification
within ten days that he had paid or made arrangements to
pay for the clerk’s record and warned that failure to
comply with the order could result in dismissal of his
case.

Instead of providing written verification that he had made
payment arrangements, appellant filed objections to the
trial court’s findings, which we overruled by order dated
February 8, 2006. On February 9, 2006, he filed an
objection to our order adopting the trial court’s findings
and a request to proceed in forma pauperis. We explained
that an appellant must file an affidavit of indigence at
the same time that he files his notice of appeal, overruled
appellant’s objection to our order, and instructed that we
would not entertain any more motions on the subject of
appellant’s indigency status. We again ordered him to file
written verification by March 15, 2006 that he had made
payment arrangments with the clerk and again warned that
his failure to comply with our order could result in
dismissal of his appeal.

The Court received appellant’s brief on March 16, 2006. By
letter dated March 22, 2006, we explained that the Court
will not consider appellant’s brief without a clerk’s
record because the Court reviews the clerk’s record to
determine whether we have jurisdiction over an appeal. We
cited Texas Rule of Appellate Procedure 37.3(b), providing
that if no clerk’s record is filed due to appellant’s
fault, the appellate court may dismiss the appeal for want
of prosecution unless the appellant was entitled to proceed
without payment of costs. We reaffirmed that appellant is
not entitled to proceed without payment of costs and
directed him to file, within ten days from the date of the
letter, proof that he had made payment arrangements. For
the third time, we warned that if he failed to comply, his
appeal would be subject to dismissal without further
notice.

Again, appellant has failed to make payment arrangements to
pay for the clerk’s record. We therefore DISMISS his appeal
for want of prosecution and for failing to abide by an
order of this Court. See Tex.R.App.P. 37.3 (b); 42.3
(b),(c).