Opinion
No. 10-03-215-CV
Opinion delivered and filed December 31, 2003.
From the 82nd District Court, Falls County, Texas.
Dismissed.
Thomas B. Sehon and Kathryn J. Gilliam, Attorney for Appellee.
Before Chief Justice GRAY, Justice VANCE, and Judge ALLEN (Sitting by Assignment).
George Allen, Judge of the 54th District Court of McLennan County, sitting by assignment of the Chief Justice of the Texas Supreme Court pursuant to section 74.003(h) of the Government Code. See TEX. GOV'T CODE ANN. § 74.003(h) (Vernon Supp. 2004).
MEMORANDUM OPINION
Lee Roger Simpson, acting pro se, drafted an original petition seeking an injunction and an affidavit of inability to pay costs. He presented both documents to the district clerk of Falls County, who refused to file them. A handwritten notation appears at the end of the affidavit: "Denied [Judge] Robert Stem 7-8-03." Simpson appeals the denial of his affidavit.
Rule 145 sets forth procedures to be followed when a party seeks to proceed without paying court costs or posting security for them. TEX. R. CIV. P. 145. The clerk is to file the petition and the affidavit and issue citation. Id. 145(1). Once citation has been served, the defendant may contest the affidavit. Id. If the court determines that the party is able to pay, it will issue an order explaining its findings and ordering the party to pay the costs. Id. The party may not take any further steps in the lawsuit until he has paid the costs.
In this case, because the clerk refused to file the petition and the affidavit, a lawsuit was never commenced. See id. 22. The judge's premature "denial" of the affidavit confused the situation: we now have before us a notice of appeal that was never filed in the trial court, as well as an unfiled petition and affidavit. In fact, the trial court had no jurisdiction to deny the affidavit because no suit was filed invoking its jurisdiction. The "denial" is therefore void. Billings v. Concordias Heritage Ass'n, 960 S.W.2d 688, 690 n. 4 (Tex. App.-El Paso 1997, pet. denied) ("Judicial action without jurisdiction is void."). Accordingly, we have no jurisdiction because there is no final order from which Simpson can appeal.
We note that Justice O'Connor's concurring opinion in In re Bernard, 993 S.W.2d 453, 454-55 (Tex. App.-Houston [1st Dist.] 1999, no pet.), addressed a situation much like this.
We dismiss this appeal for want of jurisdiction.