Smith v. McCorkle
Cases that cite this one
37 later published cases cite this decision. The 25 that cite it most often are listed here.
- Enbridge Pipelines (East Texas) L.P. v. Saratoga Timber Co., Ltd., Batson Corridor, L.P., and Timbervest Partners Texas, L.P. (Tex. App. 2015)
- Arcade Joseph Comeaux Jr. v. Tdcj-Id (Tex. App. 2013)
- Robert O. Ezirike v. Eucharia Ezirike (Tex. App. 2007)
- In re Taylor (Tex. App. 2000)
- Alinea Family Hospice Care LLC D/B/A Alinea Family Hospice Care, Donna Junkersfeld and Karla Gamble v. Peggy Goldsmith, Individually and on Behalf of the Estate of Ruth N. Massey (Tex. App. 2015)
- Geary H. Lee v. Elizabeth Deanne Holoubek, F/K/A Elizabeth Deanne Lee (Tex. App. 2015)
- L. Diane Wells v. Joe McCurry (Tex. App. 2008)
- In re Bill Heard Chevrolet, Ltd. (Tex. App. 2006)
- In re Sosa (Tex. App. 1998)
- Verburgt v. Dorner (Tex. App. 1996)
- Gutierrez v. Johnson (Tex. App. 1996)
- Wylie Cavin and Lillian Cavin v. Kristin Abbott and William Abbott (Texas Court of Appeals, 3rd District (Austin) 2023)
- Giddy Holdings, Inc. v. Alpha Five Construction, Harley Winters, and Cris W. Craft (Texas Court of Appeals, 3rd District (Austin) 2023)
- Wilfred Warren Sheppard v. Tiffany Shellman and the Attorney General of Texas (Tex. App. 2021)
- Richard Witt Duncan v. Prewett Rentals Series 2 752 Military, LLC Tami Jan, Ward Galbreath, Sumit Kapoor, Rachel Kapoor, Nakul Jeirath, Tasha Jeirath, Mark L. Reis, Janis R. Reis, Charles A. Bess, Jr., Dancee D. Bess, Christopher Bellshaw, Catherine Bellshaw, Santos S. Salinas, and Debra Salinas (Tex. App. 2021)
- Luther W. Cobb v. Joseph Stephen Campbell (Tex. App. 2020)
- Juan Cota, Jr. v. State (Tex. App. 2016)
- in the Interest of P.S. and C.S., Children (Tex. App. 2016)
- in Re Gabriela Basurto Martinez (Tex. App. 2015)
- Mary Helen Williams-White v. Henry M. White (Tex. App. 2014)
- Brian A. Smale v. John Stanley Smale (Tex. App. 2013)
- Coastal Resources, LTD v. Los Lazos Construction and Lease Service, LLC and Coyote Paving & Construction, Inc. (Tex. App. 2013)
- Joshua Lee Parnell v. Jacqueline Lois Parnell (Tex. App. 2010)
- Joshua Lee Parnell v. Jacqueline Lois Parnell (Tex. App. 2010)
- Hutchinson v. Hutchinson (Tex. App. 2009)
This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.
Opinion
On Petition for Whit of Mandamus
Rodney Wayne Smith, an inmate in the Texas Department of Corrections, filed suit in Harris County against administrators of the Harris County Hospital District. The trial court granted the defendants’ motion for summary judgment, and Smith filed a timely notice of appeal and affidavit of inability to pay costs. The Harris County District Clerk contested Smith’s request to proceed in for-ma pauperis, alleging that Smith was not too poor to pay costs and that Smith had “failed to file an Affidavit as required by Rule 49(3)” of the Texas Rules of Appellate Procedure. 1 After giving notice to Smith, the trial court held a hearing and orally sustained the contest to Smith’s affidavit. No written order was entered in the record, although the docket entries reflect that Smith’s motion was “denied as presented.” After unsuccessfully seeking mandamus in the Court of Appeals, Smith requested mandamus in this Court.
In the absence of a written order sustaining a contest, the allegations of the affidavit are taken to be true. See Tex. R.App.P. 40(a)(3); Ranier v. Brown, 623 S.W.2d 682, 685 (Tex.App.—Houston [1st Dist.] 1981 orig. proceeding). A docket entry does not constitute a written order. See McCormack v. Guillot, 597 S.W.2d 345, 346 (Tex. 1980). Taken as true, the allegations in Smith’s affidavit conclusively demonstrate his inability to pay.
We note that the contest challenges Smith’s failure to submit a sworn affidavit. However, section 132.001 of the Texas Civil Practice and Remedies Code permits inmates to file unsworn declarations that follow a prescribed form. A declaration that substantially complies with the statute is a proper substitute for an affidavit of inability to pay. See Thomas v. Pankey, 837 S.W.2d 826, 830 (Tex.App.—Tyler 1992, no writ). Smith’s *693 declaration complied in every respect with section 132.001.
Mandamus is the appropriate remedy when a contest to an affidavit of inability to pay is improperly sustained. Allred v. Lowry, 597 S.W.2d 353, 354 n. 2 (Tex. 1980). Pursuant to Texas Rule of Appellate Procedure 122, a majority of this Court, without hearing oral argument, directs that the trial court enter an order overruling the contest to Smith’s affidavit of inability to pay costs. The writ will issue only if the trial court fails to comply.
. There is no Rule 49(3) in the Texas Rules of Appellate Procedure. We assume that the clerk meant Rule 40(a)(3), which governs affidavits of inability to pay.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.