Rafael Gurrusqueita Vega, D/B/A Restaurante Y Taqueria Altamirano v. Harris County

COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS AT HOUSTON ORDER

Appellate case name: Rafael Gurrusqueita Vega d/b/a Restaurante y Taqueria Altamirano v.

Harris County, on behalf of itself and the Harris County Department of Education, the Port of Houston Authority of Harris County, the Harris County Flood Control District, and the Harris County Hospital District; City of Houston; Houston Independent School District; and Houston Community College System

Appellate case number: 01-11-00834-CV Trial court case number: 2010-59315 Trial court: 270th District Court of Harris County

On September 23, 2011, appellant, Rafael Gurrusqueita Vega d/b/a Restaurante y Taqueria Altamirano, filed an affidavit of indigence in the trial court in the above-referenced appeal. See TEX. R. APP. P. 20.1(a). On September 27, 2011, the district clerk timely filed a contest to the affidavit.1 See TEX. R. APP. P. 20.1(e). Therefore, the trial court was required to either conduct a hearing or sign an order extending the time to conduct the hearing by October 7, 2011. See TEX. R. APP. P. 20.1(i)(2). Further, to properly sustain the contest, the trial court was required to sign an order sustaining the contest within the prescribed period for the hearing. See TEX. R. APP. P. 20.1(i)(4). The clerk’s record does not reflect that the trial court signed an order extending the period for the hearing or ruled on the contest by October 7, 2011. See id. Instead, the record reflects that the trial court signed an order sustaining the contest on November 1, 2011—twenty-five days after the deadline had expired. See TEX. R. APP. P. 20.1(i)(2). Appellant, in a document styled “Defendant’s Notice of Appeal,” challenged the trial court’s ruling on the contest to his affidavit of indigence on November 18, 2011. Because the order sustaining the contest was signed after the 10 days had expired, the trial court was without authority to sustain the contest and abused its discretion by signing the order. See Ramirez v. Packer, 807 S.W.2d 728, 729 (Tex. 1991); In re VanDeWater, 966 S.W.2d 730, 734 (Tex. App.—San Antonio 1998, no pet.). Accordingly, the allegations in the affidavit are deemed true, and appellant is entitled to proceed without advance payment of costs. TEX. R. APP. P. 20.1(i)(4).

The Clerk of this Court is ORDERED to make an entry in this Court’s records that appellant is indigent and is allowed to proceed on appeal without advance payment of costs.

It is further ORDERED that the District Clerk file with this Court, within 30 days of the date of this order and at no cost to appellant, a clerk’s record containing the items specified in Texas Rule of Appellate Procedure 34.5(a). See TEX. R. APP. P. 20.1(k).

It is further ORDERED that the Court Reporter file with this Court, within 30 days of the date of this order and at no cost to appellant, the reporter’s record. See id.

Appellant’s brief is ORDERED filed with this Court within 30 days after the later of the date the clerk’s record is filed or the date the reporter’s record is filed. See TEX. R. APP. P. 38.6(a). Appellee’s brief, if any, must be filed within 30 days after the date the appellant’s brief is filed. See TEX. R. APP. P. 38.6(b).

Judge’s signature: /s/ Justice Jim Sharp

 Acting individually  Acting for the Court Date: July 19, 2012

Jackson v. Tex. Bd. of Pardons & Paroles, 178 S.W.3d 272, 277 (Tex. App.—Houston [1st Dist.] 2005, no pet.); Nabelek v. Garrett, 94 S.W.3d 648, 649 (Tex. App.—Houston [14th Dist.] 2002, order, pet. dism’d w.o.j.).