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Texas: Late Affidavit of Indigence Satisfies Fee Payment Requirement; Case Dismissed on Remand
On May 26, 2006 the Supreme Court of Texas held that a state court of appeals erred when it dismissed a prisoner's appeal after he filed an affidavit of indigence in response to the court's instructing him to pay filing fees.
Lawrence Higgins, a Texas state prisoner, appealed the dismissal of a civil suit without paying the filing fee or filing an affidavit of indigence as required by Texas Rule of Appellate Procedure 5 and 20.1(c)(1). After four months, the court of appeals instructed Higgins to pay the $125 filing fee within ten days or face dismissal of his appeal.
Nine days later Higgins filed an affidavit of indigence.
The court of appeals nonetheless dismissed the appeal because the affidavit was untimely and had not been accompanied by a motion for an extension of time. Alternatively, the court of appeals held that Higgins' appeal had to be dismissed because his affidavit was conclusory and did not contain all of the required information. Higgins filed a petition for review in the Texas Supreme Court.
The Texas Supreme Court held that, even though Higgins' affidavit of indigence was untimely, it could not justify dismissal of the appeal because, under Texas Rule of Appellate Procedure 44.3, appeals may only be dismissed for defects of form or irregular appellate procedures after the appellant is given a reasonable time to correct the defect. "Because an affidavit of indigence discharged the filing-fee requirement unless a contest to it is sustained, see TEX.APP.P. 20.1, Higgins corrected the defect within the allotted time."
The Texas Supreme Court also held that the appeal should not have been dismissed because the affidavit of indigence was conclusory and failed to contain all of the required information without the court of appeals having first given Higgins an opportunity to correct the defect. The Court noted that nothing in the affidavit indicated that Higgins could pay appellate costs and "common sense tells us that one in his circumstances had no means of obtaining an arm's length bona fide loan."
Therefore, the dismissal of the appeal by the court of appeals was reversed and the case was remanded for further proceedings. See: Higgins v. Randall County Sheriff's Office, 193 S.W.3d 898 (Tex. 2006).
On remand, the court of appeals directed Higgins to reasonably explain why his affidavit of indigence was untimely, and instructed him to file another affidavit of indigence. Higgins filed a reply and another affidavit stating he received no "monies from anywhere," had "no money at this time," and expected no "money in the immediate future." The appeals court noted that Higgins had not sent a recent trust fund account statement, nor had he indicated whether he was married and had assets available from a spouse, or owned real or personal property or had other assets.
The court of appeals found that Higgins had again failed to comply with the court's directive regarding his indigent status and again dismissed his appeal due to noncompliance with the rules of appellate procedure. See: Higgins v. Randall County Sheriff's Office, Tex.App.-Amarillo, Case No. 07-05-0004-CV (unpublished); 2006 WL 2418823.
Lawrence Higgins, a Texas state prisoner, appealed the dismissal of a civil suit without paying the filing fee or filing an affidavit of indigence as required by Texas Rule of Appellate Procedure 5 and 20.1(c)(1). After four months, the court of appeals instructed Higgins to pay the $125 filing fee within ten days or face dismissal of his appeal.
Nine days later Higgins filed an affidavit of indigence.
The court of appeals nonetheless dismissed the appeal because the affidavit was untimely and had not been accompanied by a motion for an extension of time. Alternatively, the court of appeals held that Higgins' appeal had to be dismissed because his affidavit was conclusory and did not contain all of the required information. Higgins filed a petition for review in the Texas Supreme Court.
The Texas Supreme Court held that, even though Higgins' affidavit of indigence was untimely, it could not justify dismissal of the appeal because, under Texas Rule of Appellate Procedure 44.3, appeals may only be dismissed for defects of form or irregular appellate procedures after the appellant is given a reasonable time to correct the defect. "Because an affidavit of indigence discharged the filing-fee requirement unless a contest to it is sustained, see TEX.APP.P. 20.1, Higgins corrected the defect within the allotted time."
The Texas Supreme Court also held that the appeal should not have been dismissed because the affidavit of indigence was conclusory and failed to contain all of the required information without the court of appeals having first given Higgins an opportunity to correct the defect. The Court noted that nothing in the affidavit indicated that Higgins could pay appellate costs and "common sense tells us that one in his circumstances had no means of obtaining an arm's length bona fide loan."
Therefore, the dismissal of the appeal by the court of appeals was reversed and the case was remanded for further proceedings. See: Higgins v. Randall County Sheriff's Office, 193 S.W.3d 898 (Tex. 2006).
On remand, the court of appeals directed Higgins to reasonably explain why his affidavit of indigence was untimely, and instructed him to file another affidavit of indigence. Higgins filed a reply and another affidavit stating he received no "monies from anywhere," had "no money at this time," and expected no "money in the immediate future." The appeals court noted that Higgins had not sent a recent trust fund account statement, nor had he indicated whether he was married and had assets available from a spouse, or owned real or personal property or had other assets.
The court of appeals found that Higgins had again failed to comply with the court's directive regarding his indigent status and again dismissed his appeal due to noncompliance with the rules of appellate procedure. See: Higgins v. Randall County Sheriff's Office, Tex.App.-Amarillo, Case No. 07-05-0004-CV (unpublished); 2006 WL 2418823.
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Related legal cases
Higgins v. Randall County Sheriff's Office
| Year | 2006 |
|---|---|
| Cite | 193 S.W.3d 898 (Tex. 2006) |
| Level | State Supreme Court |
| Injunction Status | N/A |
Higgins v. Randall County Sheriff's Office
| Year | 2006 |
|---|---|
| Cite | Tex.App.-Amarillo, Case No. 07-05-0004-CV |
| Level | State Court of Appeals |
| Injunction Status | N/A |