Opinion
No. 01-09-00502-CV
Order issued September 21, 2009.
On Appeal from the 239th District Court, Brazoria County, Texas, Trial Court Cause No. 29884.
MEMORANDUM ORDER
Appellant, Phyllis Renee Shanklin, challenges the trial court's order sustaining the contest to appellant's affidavit of indigence. See In re Arroyo, 988 S.W.2d 737, 738 (Tex. 1998) ("indigent party no longer precluded from perfecting appeal challenging the trial court's order sustaining a contest to the party's affidavit of indigence.").
Citing Baughman v. Baughman, 65 S.W.3d 309, 311 (Tex. App.-Waco, 2001, no pet.), appelllee, Texas Department of Criminal Justice, asserts that this Court does not have jurisdiction to consider appellant's Arroyo challenge because she has not filed a separate notice of appeal of the trial court's order sustaining a contest to appellant's affidavit of indigence. We decline to follow this holding and instead follow the holding in In the Matter of the Marriage of Gary, No. 07-01-0466-CV, 2002 Tex. App. LEXIS 5749 (Tex. App.-Amarillo August 7, 2002 order) that an appeal from an order sustaining a contest to an affidavit of indigence is ancillary to the appeal of the judgment on the merits, and a separate notice of appeal is not required. Accord Basaldua v. Hadden, No. 04-08-00758-CV, 2009 Tex. App. LEXIS 2552 at *2 (Tex. App.-San Antonio April 15, 2008, order). Appellee also asserts that appellant is not entitled to proceed without payment of costs because under Texas Civil Practice and Remedies Code Annotated § 13.03(a) (Vernon 2002), her prospective appeal does not present a substantial question for appellate review. This assertion is premature as the trial court has not made a finding that appellant's appeal is frivolous. See § 13.03(a)(2)(a) (when an affidavit of indigence has been filed, inferentially requiring a finding that an appeal is frivolous to prevent court reporter and district clerk from performing duty of providing record without cost).
The Clerk of this Court is ORDERED, at no cost to appellant, to immediately transmit to appellant a copy of the clerk's record on indigence filed in this Court on August 18, 2009, and the reporter's record of the trial court's June 12, 2009 hearing on contests to appellant's affidavit of indigence. Appellant is ORDERED, within 45 days of the date of this order to file a brief demonstrating why the trial court erred in signing the June 12, 2009 order sustaining a contest to appellant's affidavit of indigence. Appellee, Texas Department of Criminal Justice, shall file a response brief, if any, to appellant's brief on indigency within 75 days of the date of this order.