Opinion
No. 04-03-00772-CV
Delivered and filed: May 19, 2004.
Appeal from the 113th Judicial District Court, Harris County, Texas, Trial Court No. 2002-12013, Honorable Patricia Hancock, Judge Presiding.
Opinion Affirming Order Sustaining Contest to Appellant's Affidavit of Indigence.
Affirmed.
Sitting: Paul W. GREEN, Justice, Sarah B. DUNCAN, Justice, Karen ANGELINI, Justice.
MEMORANDUM OPINION
Appellant Nora Gutierrez appeals the trial court's order sustaining a contest to Gutierrez's affidavit of indigence. We affirm the trial court's order.
We construed Gutierrez's "Motion for Order" as a notice of appeal from the trial court's order of December 3, 2003 sustaining the contests to the affidavit. We ordered the clerk to file a partial record containing those pleadings pertinent to the trial court's ruling on the affidavit of indigence. See In re Arroyo, 988 S.W.2d 737, 738 (Tex. 1998).
We review the trial court's order sustaining a contest to the affidavit of indigence for abuse of discretion. Ford v. Whitehead, 2 S.W.3d 304, 305 (Tex. App.-San Antonio 1999, no pet.). Rule 20.1 of the Texas Rules of Appellate Procedure requires an appellant who seeks a free record for appeal to file an affidavit of indigence "with or before the notice of appeal." Tex.R.App.P. 20.1(c)(1). The deadline for filing the affidavit may be extended if a motion for extension of time is filed no later than fifteen days after the deadline for filing the affidavit of indigence. Tex.R.App.P. 20.1(c)(3).
The final judgment in this case was signed August 18, 2003. Gutierrez filed a timely motion for new trial and notice of appeal on September 15, 2003. She did not file an affidavit of indigence with or before the notice of appeal. On November 10, 2003, more than fifteen days after the deadline for filing the affidavit, Gutierrez filed an Amended Notice of Appeal, an Affidavit of Indigence, and a motion to extend time to file the affidavit of indigence. The District Clerk and one of the defendants filed contests to Gutierrez's request for a free record on appeal. Following a hearing, the trial court sustained the contests, holding that Gutierrez failed to timely file her affidavit of indigence.
The record supports the trial court's finding that Gutierrez failed to file her affidavit of indigence with or before the notice of appeal. The evidence also shows the motion for extension of time was untimely. This court has held that Rule 20.1 requires strict compliance. Ford, 2 S.W.3d at 306. Where, as here, neither the affidavit of indigence nor the motion for extension of time is timely filed, the trial court does not abuse its discretion by sustaining a contest. Mikkilineni v. City of Houston, 4 S.W.3d 298, 299 (Tex. App.-Houston [1st Dist.] 1999, pet. denied); Ford, 2 S.W.3d at 306. We affirm the order of the trial court and order Gutierrez to pay the filing fee and make arrangements to pay for the record on appeal.