TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-02-00719-CV

Frank Evans, Appellant

v.

Austin Independent School District, Appellee

FROM PROBATE COURT NO. 1 OF TRAVIS COUNTY

NO. 2300, HONORABLE GUY S. HERMAN, JUDGE PRESIDING

O R D E R

PER CURIAM

Appellant Frank Evans filed a motion to pay partial costs for the reporter's record and clerk's record, and for the appointment of an attorney ad litem. However, Evans failed to file his affidavit of indigence in the trial court with or before he filed his notice of appeal. See Tex. R. App. P. 20.1(c)(1). Nor did he file the motion within fifteen days, along with a motion for an extension of time. See id. 20.1(c)(3). Therefore, we must overrule his motion to pay partial costs for the appellate record.

As for the motion for an attorney ad litem, the appointment of an attorney ad litem is within the power of the trial court, not the appellate court. See Tex. Prob. Code Ann. § 53(b), (c) (West Supp. 2003) (attorney ad litem shall be appointed to represent interests of unknown heirs); see also Tex. R. Civ. P. 244 (appointment of attorney ad litem required when service of citation made by publication). Therefore, we overrule Evans's motion for the appointment of an attorney ad litem.

It is ordered January 31, 2003.

Before Chief Justice Law, Justices B. A. Smith and Puryear