MIKKILINENI v. CITY OF HOUSTON (1999)

ORDER

The Court today entertained appellant's motion to extend the time to file his affidavit of indigence.   tex.R.App.P. 20.1(c)(3).   We DENY appellant's motion.

On August 31, 1998, the trial court entered summary judgment against appellant and Talasila, a dissolved partnership.   Appellant timely filed his notice of appeal on September 18, 1998.1  tex.R.App.P. 25.1, 26.1.   On October 19, 1998, appellant's motion for leave to proceed in forma pauperis was filed in this Court, which appellant alleges was mailed on October 14, 1998.²  See tex.R.App.P. 9.2(b)(1) (stating that a document received within ten days after the filing deadline may be considered timely filed).

Under rule 20.1(a) of the Texas Rules of Appellate Procedure, a party may proceed without advance payment of costs if the party files an affidavit of indigence in compliance with the rules.   tex.R.App.P. 20.1(a).   Rule 20.1(c)(1) provides that the affidavit of indigence must be filed in the trial court with or before the notice of appeal.   Rule 20.1(c)(3) provides that this Court may extend the time to file the affidavit if, within 15 days after the date the notice of appeal is filed, the party files a motion to extend time.   See tex.R.App.P. 20.1(c)(3);  Holt v. F.F. Enters., 990 S.W.2d 756 (Tex.App.-Amarillo 1998, pet. denied);  see also tex.R.App.P. 10.5(b).

Appellant's motion to proceed in forma pauperis was not filed with or before his notice of appeal as required by rule 20.1(c)(1).   Appellant's motion was filed 26 days, using the date appellant claims to have mailed the motion, after the notice of appeal was filed.

As appellant's motion to proceed in forma pauperis was filed after both the deadline to file the motion and the deadline to file an extension, his motion does not comply with rule 20.1.   Thus, appellant's motion was not timely filed.   Accordingly, we DENY the motion to proceed in forma pauperis.

The clerk's record will be due 45 days from the date of this order, pending payment by appellant.   Because this is an appeal from a summary judgment, we assume there is no reporter's record.   Appellant's brief will be due 30 days after the filing of the clerk's record.   See tex.R.App.P. 38.6.

Appellees' motion to dismiss the appeal for want of prosecution remains pending in this Court.   All other pending motions are overruled.   If 45 days pass and payment for the record has not been made and appellant has not made arrangements for payment, appellant's appeal will be subject to dismissal under tex.R.App.P. 37.3(b).

It is so ORDERED.

FOOTNOTES

FN1. The notice of appeal does not include Talasila, a dissolved partnership..  FN1. The notice of appeal does not include Talasila, a dissolved partnership.

2.   We will assume for purposes of this order that appellant did mail the motion to proceed in forma pauperis on October 14, 1998, although there is no evidence in the record to support appellant's assertion.

PER CURIAM.