Wells v. Breton Mill Apartments

Because the tender of neither an affidavit of indigence nor filing fee is a prerequisite to the perfection of an appeal, it follows that the deadlines for tendering either are matters that can be altered under Texas Rule of Appellate Procedure 2.

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ON MOTION FOR REHEARING

By an unpublished opinion dated August 28, 2001, this Court dismissed appellant Desa Wells’ appeal for failure to pay the required filing fee. Within 15 days of that date, Wells filed a motion requesting that the cause be reinstated and that she be permitted to proceed as an indigent. We treat the motion as one for rehearing.

Through the motion, Wells informs us that she was innocently misled by a lower court clerk into believing that the affidavit of indigency filed with the trial court to obtain leave to appear at trial as an indigent would also serve to establish her indigency for appellate purposes. Furthermore, upon determining that the advice given her was wrong, see Holt v. F.F. Enterprises, 990 S.W.2d 756, 757-58 (Tex. App. -Amarillo 1998, pet. denied) (requiring a new or current affidavit of indigence along with the notice of appeal), she tendered a belated affidavit in July of 2001. A copy of the July 2001 affidavit appears of record, and it comports with the requirements of Rule 20.1(b) of the Texas Rules of Appellate Procedure.

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Wells v. Breton Mill Apartments

Because the tender of neither an affidavit of indigence nor filing fee is a prerequisite to the perfection of an appeal, it follows that the deadlines for tendering either are matters that can be altered under Texas Rule of Appellate Procedure 2.

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