Opinion
No. 10-06-00248-CV
Opinion delivered and filed October 25, 2006.
Appeal from the 82nd District Court, Robertson County, Texas, Trial Court No. 06-01-17,424-CV.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA.
MEMORANDUM OPINION
Gwendolyn Phillips brings this appeal from an adverse determination in a proceeding to modify a prior child custody order. The Clerk of this Court notified Phillips by letter dated August 17, 2006 and by letter dated September 15, 2006 that a $125 filing fee needed to be paid if Phillips had not established indigence under Rule of Appellate Procedure 20.1. In particular, the September 15 letter advised that the filing fee must be paid within ten days or the appeal would be presented to the Court for dismissal. See TEX. R. APP. P. 5, 42.3(c).
Phillips has not responded to either notice. She has not paid the filing fee, nor has she tendered an affidavit of indigence in compliance with Rule 20.1. Id. 20.1; Higgins v. Randall County Sheriff's Office, 193 S.W.3d 898, 899-900 (Tex. 2006) (per curiam).
Accordingly, the appeal is dismissed.
DISSENTING OPINION
The September 15, 2006 letter misrepresented the events necessary to avoid dismissal of this appeal. As the Texas Supreme Court made clear in Higgins, it is not too late for Higgins to establish her indigence and pursue her appeal. Higgins v. Randall County Sheriff's Office, 193 S.W.3d 898 (Tex. 2006). Nevertheless, Phillips, via her attorney, was told by this Court that unless she had already "obtained indigent status for purposes of appeal under Texas Rule of Appellate Procedure 20, the payment of the fling [sic] fee is required." (Letter from Tenth Court of Appeals dated September 15, 2006.)
This statement is contrary to the holding of the Texas Supreme Court in Higgins. It was not too late for Phillips to file an indigence affidavit. And, unless a challenge to it was sustained, it was not too late to thus proceed without the advance payment of costs, including the filing fee.
On the record before me, it is still not too late for the indigence affidavit to be filed. I, therefore, cannot yet vote to dismiss Phillips's appeal.
Until she is notified of what is necessary to avoid dismissal and thereafter fails to take the necessary remedial action, we cannot properly dismiss her appeal. I note that we did not have to tell her what action was necessary to avoid dismissal. We could have simply told her the filing fee had not been paid and given her a time period by which to respond. But having affirmatively misrepresented what action was necessary to prevent dismissal, we cannot properly dismiss this appeal without correcting that misrepresentation.
Accordingly, I respectfully dissent.