IN THE

TENTH COURT OF APPEALS

No. 10-07-00094-CV

Van Lee Brewer,

                                                                      Appellant

 v.

Jason Simental, TOWNSEND, D.

DUKE, J. TAYLOR, L. LEWIS, R.

LOSACK, J.D. SEIGLE AND C. DAVIS

                                                                      Appellees

From the 278^th District Court

Walker County, Texas

Trial Court No. 23325

          The problems with the majority’s order are numerous and pervasive.  To reach the result, they must go outside the record that is properly before us and rely upon a proceeding and attachments thereto filed with the Texas Supreme Court.  The documents that are properly in this proceeding clearly indicate that there was a contest to the affidavit of indigence.  If the affidavit of indigence was filed in the trial court, the determination of indigence is to be made in the trial court, not this Court.  If the affidavit of indigence has not been filed in the trial court, because of the district clerk’s refusal to accept what it may believe is a non-compliant affidavit, the remedy for that is not by a direct appeal but rather would be a mandamus of the district clerk filed with the district court.  Finally, if the affidavit has been filed with the appellate court clerk, there is no indication in this file that the appellate court clerk has complied with the requirements of Rule 20.1(d)(2).  Tex. R. App. P. 20.1(d)(2).

          There are other problems, but it is pointless for me to attempt to obtain a correct ruling and I will simply step out of the way of the train.  I dissent.

                                                          TOM GRAY

                                                          Chief Justice

Dissenting opinion delivered and filed May 23, 2007