FREDRICK DWAYNE DYER v. TEXAS BOARD OF PARDONS AND PAROLES (2010)

MEMORANDUM OPINION

The trial court signed an order sustaining the district clerk's contest to Fredrick Dyer's affidavit of indigency.   On appeal, Dyer requests that we reverse the trial court's order and allow him to proceed as indigent in the trial court.   We dismiss the appeal for want of jurisdiction because the trial court's order sustaining the contest to Dyer's affidavit of indigency is neither final nor appealable.

Background

On July 24, 2008, Dyer, acting pro se, petitioned for expunction of an arrest record pursuant to Chapter 55 of the Texas Code of Criminal Procedure.   See Tex.Code Crim. Proc. Ann. art. 55.01 (Vernon Supp.2009).   Dyer also filed a declaration of his inability to pay court costs and requested to proceed as indigent in the trial court.   The district clerk contested Dyer's declaration, and the trial court signed an order sustaining the contest on October 3, 2008.   The trial court's order stated:

IT IS FURTHER ORDERED that the District Clerk of Harris County shall not proceed to process any further actions or settings on this case unless and until the Affiant Frederick [sic] Dwayne Dyer pays in full all filing fees in the amount of $246.00 plus any and all costs incurred in the process of this case․  In the event, the District Clerk of Harris County does not receive payment for all fees and costs on or before November 15, 2008, this case shall be dismissed without prejudice.

Dyer filed a notice of appeal with the trial court on October 20, 2008, along with an additional declaration of his inability to pay appellate costs and fees.   The district clerk contested this declaration as well, contending that Dyer's affidavit did not comply with the requirements of Texas Rule of Appellate Procedure 20.1.   See Tex.R.App. P. 20.1.   The trial court sustained this contest on November 7, 2008.   Dyer eventually paid the appellate court costs and fees.

Discussion

Dyer appeals the trial court's order sustaining the district clerk's contest to his affidavit of indigency in the trial court proceeding.   He contends that his affidavit complies with the requirements of Rule 20.1, and thus the trial court's order denies him access to the courts and equal protection.¹  The general rule, with a few exceptions, is that an appellant can only appeal from a final judgment.  Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex.2001).   A judgment is final for the purposes of appeal if it disposes of all parties and all claims, except as necessary to carry out the decree.   Id. An appellant may appeal an interlocutory order only if authorized by statute.  Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 352 (Tex.2001).   An order sustaining a contest to an affidavit of indigency is an interlocutory order not included in the list of orders made appealable by statute.   See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a) (Vernon 2008).   Since there is no final judgment in this case and no statutory authorization, we lack subject-matter jurisdiction over this interlocutory appeal of the trial court's order sustaining the district clerk's contest to Dyer's affidavit of indigency.   See Aguilar v. Tex. La Fiesta Auto Sales LLC, No. 01-08-00653-CV, 2009 Tex. App, LEXIS 3883, at *3-4 (Tex.App.-Houston [1st Dist.] June 4, 2009, no pet.);  Gonzales v. Flores, No. 14-08-00991-CV, 2009 Tex.App. LEXIS 3790, at *1-2 (Tex.App.-Houston [14th Dist.] Feb. 26, 2009, no pet.).

On November 23, 2009, we issued an order informing Dyer of our intent to dismiss this appeal for want of jurisdiction unless within thirty days he files a response demonstrating that we have jurisdiction over this appeal.   See Tex.R.App. P. 42.3(a).   Dyer has filed no response.

Conclusion

The trial court's order sustaining the district clerk's contest to Dyer's affidavit of indigency is an interlocutory order that is neither final nor appealable.   We therefore dismiss his appeal for want of jurisdiction.

FOOTNOTES

FN1. Dyer mistakenly argues that the relevant rule with which his affidavit of indigency for the trial court proceeding must comply is Rule 20.1 of the Texas Rules of Appellate Procedure.   This is the applicable rule for his affidavit of indigency on appeal.  Rule 145 of the Texas Rules of Civil Procedure governs the requirements for an affidavit of indigency in the trial court.   See Tex.R. Civ. P. 145..  FN1. Dyer mistakenly argues that the relevant rule with which his affidavit of indigency for the trial court proceeding must comply is Rule 20.1 of the Texas Rules of Appellate Procedure.   This is the applicable rule for his affidavit of indigency on appeal.  Rule 145 of the Texas Rules of Civil Procedure governs the requirements for an affidavit of indigency in the trial court.   See Tex.R. Civ. P. 145.

Jane Bland Justice