TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-07-00718-CV

Cliff Burke, Appellant

v.

Dana Sharp, Appellee

FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 395TH JUDICIAL DISTRICT

NO. 03-1101-F395, HONORABLE MICHAEL JERGINS, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

Our opinion issued on March 21, 2008, is hereby withdrawn and the following is substituted in lieu thereof. ⁽¹⁾

Appellant Cliff Burke, appearing pro se, is currently incarcerated in the Arizona Department of Corrections. Burke has not made arrangements to pay for the clerk's record, which was due on December 27, 2007, nor has he paid the $175.00 fee for filing a notice of appeal. In addition, Burke has not yet filed a docketing statement as required by Texas Rule of Appellate Procedure 32.1.

On March 10, 2008, Burke filed an affidavit of indigence in this Court. See Tex. R. App. P. 20.1. An affidavit of indigence must be filed in the trial court with or before the notice of appeal. Id. An appellant must be given time to cure any defects before the appeal may be dismissed for noncompliance. See Higgins v. Randall County Sheriff's Office, 193 S.W.3d 898, 899 (Tex. 2006). As a result, we abate this cause and forward Burke's affidavit of indigency to the trial court. Any contest to the affidavit must be filed in the trial court within 15 days of the date of this order. In the event that a contest is filed, the trial court is ordered to proceed as required by Texas Rule of Appellate Procedure 20.1(i). See also Tex. Civ. Prac. & Rem. Code Ann. § 13.003 (West 2002). The trial court is further ordered to forward a record of all documents relevant to Burke's indigency claim and the trial court's findings of fact and conclusions of law to this Court within 30 days of the date of this order.

__________________________________________

Diane Henson, Justice

Before Justices Patterson, Puryear and Henson

Abated

Filed: April 10, 2008

1. Based on the limited information provided by the pro se appellant in his notice of appeal, this cause number was originally styled Cliff Burke v. Texas Department of Family & Protective Services. The style has since been corrected to accurately reflect the parties to this appeal.