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Nabelek v. Garrett

The requirements of Texas Civil Practice and Remedies Code '14.004 are inapplicable to affidavits of indigency filed on appeal.

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ORDER

This is an appeal from the dismissal of an inmate suit. On December 17, 2001, appellant filed a motion with this court requesting that we review the trial court’s order sustaining the contest to his affidavit of indigence. On February 14, 2002, this court issued an order upholding the trial court’s order sustaining the contest to appellant’s affidavit. Appellant now asks that we reconsider our order of February 14, 2002. We grant appellant’s motion, withdraw our order of February 14, 2002, and hold that the trial court abused its discretion in sustaining the contest. We further withdraw our order of February 14, 2002, requiring appellant to pay the filing fee on appeal.

Appellant timely filed his notice of appeal and an affidavit of indigence on August 13, 2001. On August 21, 2001, the Harris County District Clerk filed contests to appellant’s affidavits of inability to pay costs, citing defects in appellant’s affidavits of indigence under TEX. R. APP. P. 20.1(b) and under TEX. CIV. PRAC. & REM. CODE ANN. � 14.004. On August 27, 2001, the trial court held a hearing on the contest and, on the same date, the court signed an order sustaining the contest. On September 5, 2001, appellant filed a motion for leave to file and an amended affidavit of indigence. The District Clerk filed a contest to the amended affidavit on September 13, 2001, alleging noncompliance with section 14.004 and res judicata (because the trial court had previously sustained a contest to appellant’s affidavit of indigence for trial costs). The trial court sustained the contest to the amended affidavit on October 1, 2001, solely on the ground of noncompliance with section 14.004. Appellant filed a motion to reconsider, which the trial court denied on November 21, 2001.

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