In the Interest of B.R.G.
In the Interest of B.R.G.
Opinion of the Court
OPINION ON ORDER ABATING APPEAL AND REMANDING CASE FOR DETERMINATION OF STATUS OF RECORDER’S RECORD
Robin Geer, an incarcerated person, appeals pro se the trial court’s order finding him liable for child support for his child,
FACTS
On June 25, 1999, the Texas Attorney General filed a petition to establish the parent-child relationship between B.R.G. and Robin Lynn Geer. The petition sought testing to determine parentage, an order appointing conservators, an order concerning the child’s surname, and an order for medical support and child support. On July 9, 1999, the clerk received and filed a letter from Robin L. Geer stating that he was incarcerated in the Texas Department of Criminal Justice, and asking for a continuance until his expected release date of May 2000. On December 80, 1999, Geer filed an application for a writ of habeas corpus ad testificandum for a hearing set for January 12, 2000 in the Midland County courthouse.
On December 30,1999, Geer filed a “Notice to the Court” stipulating that he was father to the child, but also stating that:
Applicant in this cause and action is currently incarcerated in the Texas Department of Criminal Justice — Institutional Division, LeBlanc Unit, 3695 FM 3514, Beaumont, Texas. The Applicant is indigent in every legal sense, and has no legal right or ability to earn monies in which to contribute to the need of his child.
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As a result of this Applicant’s indigency and the legislative mandate of the Texas Department of Criminal Justice — Institutional Division that the offenders not be allowed to earn monies to contribute to their support or the support of their children in any way, there is simply no way this Applicant can legally contribute to the support of his child.
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Applicant absolutely has no NET MONTHLY INCOME, NO NET RESOURCES, NO SELF EMPLOYMENT INCOME, NO DEEMED INCOME POSSIBLE, NO WAGE AND SALARY PRESUMPTION POSSIBLE, AND ABSOLUTELY NO LEGAL MEANS IN WHICH TO GENERATE OR EARN ANY INCOME WHATSOEVER.
The trial court nevertheless set a hearing on the merits for February 16, 2000, appointed Angela Lea Sharp the child’s temporary managing conservator, and set support in the amount of $155 per month. Geer, by pleading, objected to this pretrial order and again stated that he had no net monthly income, no net resources, no self-employment income, no deemed income possible, no wage and salary presumption possible, and “ABSOLUTELY NO LEGAL MEANS IN WHICH TO GENERATE OR EARN ANY INCOME WHATSOEVER.” On February 14, 2000, he again requested a writ of habeas corpus ad testificandum.
The hearing went forward on February 16, 2000 before IV-D Master Honorable Matthew Blair. The mother Angela Lea Sharp appeared in person pro se, the father Robin Lynn Geer did not appear, the petitioner Attorney General of Texas was represented, and a record of the proceedings was made by audio recording. The court found that Robin Lynn Geer was the child’s father, and made various orders on child support (which was lowered to $124 per month), conservatorship, and visitation.
Geer filed his notice of appeal to this court, accompanied by an affidavit of indi-gency, swearing under penalty of perjury that he had “no net monthly income, no net resources, no self employment income, no deemed income possibilities, no wage and salary presumption possible, and absolutely no legal means in which to generate or earn any income possible.” The record
The district clerk of Midland County filed her record in this court on June 12, 2000. No reporter’s record complying with the requirements of Tex.R.App. P. 34.6(a)(2) has been filed, although this court has been sent a cassette under cover letter of the IV-D Master’s legal assistant. Geer and the Attorney General have filed briefs on the merits in this appeal.
No contest to affidavit of indigency
Initially, we must address the status of the record in this appeal, as the absence of a certified recorder’s record may well determine the outcome of Geer’s complaints. The first issue before us is whether Geer is entitled to proceed on appeal as an indigent person.
The rules of appellate procedure are clear that when a party files an affidavit of indigency, unless a timely contest to the affidavit is made, the affidavit’s allegations shall be deemed true and the party will be allowed to proceed without advance payment of costs.
No recorder’s record
Both Geer’s complaints on appeal-— that the trial court erred in ordering him to pay child support while incarcerated, and that the trial court erred in refusing him a writ of habeas corpus ad testifican-dum—are reviewed by this court under an abuse of discretion standard.
It is true that Geer apparently did not make a request for preparation of a recorder’s record when he filed his notice of
It has come to this Court’s attention that no Reporter’s Record has been filed in this appeal.
After review of the record, we find that the trial court orders dated January 12, 2000 and February 16, 2000, as contained in the Clerk’s Record timely filed in this cause, indicate the proceedings were electronically recorded. Further review of the record shows that Appellant did not request a Reporter’s Record be prepared, did not request the court recorder to file the record in this Court, nor included an appendix in his brief containing a transcription of the record or the relevant portions thereof.
Accordingly, if Appellant wishes this appeal to be considered with a Reporter’s Record, he must make arrangements to have the Reporter’s Record prepared and filed with this Court on or before December 29, 2000. If we do not receive a timely response by such date, we will consider and decide only those issues or points that do not require a Reporter’s Record for a decision. (Emphasis added).
On December 28, 2000, this court received correspondence from the office of Matthew Blair, the IV-D Master who presided over this case below. The letter references the trial court number for this case, and reads in full:
To the Honorable Court: -
Enclosed is a copy of the tape recording of the above case on February 16, 2000 as requested.
Thank you.
Sincerely,
Latricia Morris, CLA
Certified Legal Assistant
cc: Robin Lynn Geer (Emphasis added).
Accompanying the letter was a microcas-sette recording.
CONCLUSION
This court concludes we cannot determine the merits of this appeal without clarification on the status of the recorder’s record. We therefore abate the appeal and remand the case for proceedings consistent with this opinion. The trial court shall forward its determinations and orders on this matter to the District Clerk
. Tex.R.App. P. 20.1(f); see In re VanDeWater, 966 S.W.2d 730, 732-33 (Tex.App.—San Antonio 1998, no pet.) (mandamusing court reporter to prepare free statement of facts under former appellate rule).
. In the matter of C.M.G., 883 S.W.2d 411, 413 (Tex.App.—Austin 1994, no writ).
. Tex.R.App. P. 20.1(f); Rios v. Calhoon, 889 S.W.2d 257, 258-59 (Tex. 1994).
. Rios, 889 S.W.2d at 258.
. Hollifield v. Hollifield, 925 S.W.2d 153, 155 (Tex.App.—Austin 1996, no writ) (child support); Nance v. Nance, 904 S.W.2d 890, 892 (Tex.App.—Corpus Christi 1995, no writ) (ha-beas corpus ad testificandum).
. See In re Marriage of Spiegel, 6 S.W.3d 643, 646 (Tex.App.—Amarillo 1999, no pet.) ("the reporter’s record is so pivotal to our review that its absence obligates us to presume that the missing evidence actually supported the trial court's ruling").
. Even were it otherwise complete under the appellate rules, the recording sent to the court is unintelligible. It is recorded at a speed far faster than real time, and witness testimony is almost inaudible. We do not reach any conclusions concerning these problems, however, as the record cannot be considered in the manner in which it was filed.
. Tex.R.App. P. 34.6(a)(2).
Reference
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- In the Interest of B.R.G., a Child.
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