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Texas Pro Se Litigant Entitled to Notice of Hearing
Texas Pro Se Litigant Entitled
to Notice of Hearing
A Texas court of appeals has held that a pro se litigant who files an affidavit of indigence, when seeking to appeal an adverse ruling in a civil case in forma pauperis, is entitled to notice of a hearing on the court clerk's challenge to the affidavit.
Timothy A. Aguilar, a Texas state prisoner, filed a civil suit pro se and in forma pauperis. The district court dismissed the suit for want of prosecution. Aguilar then filed a notice of appeal, an affidavit of indigence, and an Inmate Trust Fund statement. The Harris County Clerk filed a contest of the pauper's affidavit. The district court sustained the challenge to the affidavit, noting that Aguilar "failed to appear" for the challenge hearing. Aguilar then filed an application for a writ of mandamus with the court of appeals complaining that he could not appeal because the district court had denied him the right to appeal as an indigent,
The court of appeals noted that the record did not show that Aguilar had ever been notified of the challenge hearing. Furthermore, the district court's notation that Aguilar had "failed to appear" showed that it was not mindful of the fact that Aguilar was a state prisoner and could not appear in the absence of a bench warrant. Therefore, it granted the petition for a writ of mandamus and instructed the district court to conduct a hearing on Aguilar's affidavit of inability to pay costs and provide him an opportunity to be heard. Readers should note that, although this important ruling for Texas prisoners was dated June 2, 1997, it was not published until April 2, 2002. See: Aguilar v. Stone, 68 S.W.3d 1 (Tex.App.-Houston [1st Dist.] 1997).
to Notice of Hearing
A Texas court of appeals has held that a pro se litigant who files an affidavit of indigence, when seeking to appeal an adverse ruling in a civil case in forma pauperis, is entitled to notice of a hearing on the court clerk's challenge to the affidavit.
Timothy A. Aguilar, a Texas state prisoner, filed a civil suit pro se and in forma pauperis. The district court dismissed the suit for want of prosecution. Aguilar then filed a notice of appeal, an affidavit of indigence, and an Inmate Trust Fund statement. The Harris County Clerk filed a contest of the pauper's affidavit. The district court sustained the challenge to the affidavit, noting that Aguilar "failed to appear" for the challenge hearing. Aguilar then filed an application for a writ of mandamus with the court of appeals complaining that he could not appeal because the district court had denied him the right to appeal as an indigent,
The court of appeals noted that the record did not show that Aguilar had ever been notified of the challenge hearing. Furthermore, the district court's notation that Aguilar had "failed to appear" showed that it was not mindful of the fact that Aguilar was a state prisoner and could not appear in the absence of a bench warrant. Therefore, it granted the petition for a writ of mandamus and instructed the district court to conduct a hearing on Aguilar's affidavit of inability to pay costs and provide him an opportunity to be heard. Readers should note that, although this important ruling for Texas prisoners was dated June 2, 1997, it was not published until April 2, 2002. See: Aguilar v. Stone, 68 S.W.3d 1 (Tex.App.-Houston [1st Dist.] 1997).
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Related legal case
Aguilar v. Stone
| Year | 1997 |
|---|---|
| Cite | 68 S.W.3d 1 (Tex.App. - Houston 1st Dist 1997) |
| Level | State Court of Appeals |
TIMOTHY A. AGUILAR, Relator v. HONORABLE KATHLEEN STONE, Respondent
NO. 01-96-01283-CV
COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON
68 S.W.3d 1; 1997 Tex. App.
June 2, 1997, Opinion delivered
June 2, 1997, Opinion filed
NOTICE: [**1] PURSUANT TO THE TEXAS RULES OF APPELLATE PROCEDURE, UNPUBLISHED OPINIONS SHALL NOT BE CITED AS AUTHORITY BY COUNSEL OR BY A COURT.
DISPOSITION: Relator's petition for writ of mandamus granted.
JUDGES: Panel consists of Chief Justice Schneider, and Justices Mirabal and O'Connor.
OPINION:
Original Proceeding on Petition for Writ of Mandamus
OPINION
[*1] Timothy Aguilar, the relator, is a pro se inmate of the Texas Department of Criminal Justice. He seeks relief from the disposition of a contest to his affidavit to appeal as an indigent. Relator makes a number of complaints, but the gist of his application for writ of mandamus is that he cannot appeal by writ of error to this Court because the trial court has denied him the right to appeal as an indigent. The Supreme Court directs us to seek the substance of a pro se complaint by reviewing it with liberality and patience. Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 595, 30 L. Ed. 2d 652 (1972); Johnson v. McAdams, 781 S.W.2d 451, 452 (Tex. [*2] App.--Houston [1st Dist.] 1989, orig. proceeding).
On July 10, 1995, the trial court dismissed relator's case pending in the trial court for want of prosecution. In [**2] August, 1995, he filed with the District Clerk of Harris County a notice of appeal, an affidavit of indigence, and an inmate trust fund statement. On December 30, 1995, relator filed a writ of error under TEX. R. APP. P. 45 to challenge the July 10 order of dismissal. On January 8, 1996, the District Clerk received and filed relator's affidavit of inability to pay costs. On January 18, 1996, the Harris County clerk filed a contest of the relator's pauper's affidavit. That day, the trial court signed an order extending to February 2, 1996, the time to hear the affidavit of inability to pay costs.
The Texas Rules of Appellate Procedure provide that the clerk shall give the parties notice of the setting of the contest for hearing. TEX. R. APP. P. 40(a)(3)(C). The supplemental transcript provided to us by the District Clerk's office does not show that relator was given notice of the February 2, 1996 hearing on the District Clerk's contest. Further, the docket sheet reflects that the District Clerk's contest was sustained when "plaintiff failed to appear." It is apparent the trial court was not mindful of the fact that relator was incarcerated and unable to personally appear in the [**3] absence of a bench warrant. Relator was entitled to a hearing. TEX. R. APP. P. 40(a)(3)(C).
Accordingly, we grant relator's petition for writ of mandamus. We trust the trial court will conduct another hearing on relator's affidavit of inability to pay costs and provide relator an opportunity to be heard in accordance with the applicable local rules of Harris County. The writ of mandamus will issue only in the event it does not do so.
It is so ORDERED.
PER CURIAM
Panel consists of Chief Justice Schneider, and Justices Mirabal and O'Connor.
Opinion delivered June 2, 1997
NO. 01-96-01283-CV
COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON
68 S.W.3d 1; 1997 Tex. App.
June 2, 1997, Opinion delivered
June 2, 1997, Opinion filed
NOTICE: [**1] PURSUANT TO THE TEXAS RULES OF APPELLATE PROCEDURE, UNPUBLISHED OPINIONS SHALL NOT BE CITED AS AUTHORITY BY COUNSEL OR BY A COURT.
DISPOSITION: Relator's petition for writ of mandamus granted.
JUDGES: Panel consists of Chief Justice Schneider, and Justices Mirabal and O'Connor.
OPINION:
Original Proceeding on Petition for Writ of Mandamus
OPINION
[*1] Timothy Aguilar, the relator, is a pro se inmate of the Texas Department of Criminal Justice. He seeks relief from the disposition of a contest to his affidavit to appeal as an indigent. Relator makes a number of complaints, but the gist of his application for writ of mandamus is that he cannot appeal by writ of error to this Court because the trial court has denied him the right to appeal as an indigent. The Supreme Court directs us to seek the substance of a pro se complaint by reviewing it with liberality and patience. Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 595, 30 L. Ed. 2d 652 (1972); Johnson v. McAdams, 781 S.W.2d 451, 452 (Tex. [*2] App.--Houston [1st Dist.] 1989, orig. proceeding).
On July 10, 1995, the trial court dismissed relator's case pending in the trial court for want of prosecution. In [**2] August, 1995, he filed with the District Clerk of Harris County a notice of appeal, an affidavit of indigence, and an inmate trust fund statement. On December 30, 1995, relator filed a writ of error under TEX. R. APP. P. 45 to challenge the July 10 order of dismissal. On January 8, 1996, the District Clerk received and filed relator's affidavit of inability to pay costs. On January 18, 1996, the Harris County clerk filed a contest of the relator's pauper's affidavit. That day, the trial court signed an order extending to February 2, 1996, the time to hear the affidavit of inability to pay costs.
The Texas Rules of Appellate Procedure provide that the clerk shall give the parties notice of the setting of the contest for hearing. TEX. R. APP. P. 40(a)(3)(C). The supplemental transcript provided to us by the District Clerk's office does not show that relator was given notice of the February 2, 1996 hearing on the District Clerk's contest. Further, the docket sheet reflects that the District Clerk's contest was sustained when "plaintiff failed to appear." It is apparent the trial court was not mindful of the fact that relator was incarcerated and unable to personally appear in the [**3] absence of a bench warrant. Relator was entitled to a hearing. TEX. R. APP. P. 40(a)(3)(C).
Accordingly, we grant relator's petition for writ of mandamus. We trust the trial court will conduct another hearing on relator's affidavit of inability to pay costs and provide relator an opportunity to be heard in accordance with the applicable local rules of Harris County. The writ of mandamus will issue only in the event it does not do so.
It is so ORDERED.
PER CURIAM
Panel consists of Chief Justice Schneider, and Justices Mirabal and O'Connor.
Opinion delivered June 2, 1997