IN THE

TENTH COURT OF APPEALS

No. 10-12-00177-CV

JOSEPH "JOEY" GLEN DAUBEN,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 40th District Court

Ellis County, Texas

Trial Court No. 84294

MEMORANDUM OPINION

In this matter, appellant, Joseph “Joey” G. Dauben, challenges the trial court’s 

final judgment ordering the forfeiture of the domain name, elliscountyobserver.com, 

which was owned and operated by Dauben. After filing his notice of appeal, Dauben 

filed an affidavit of indigence, requesting that he be allowed to proceed with this appeal 

free of costs. See, e.g., Dauben v. State, No. 10-12-00177-CV, 2012 Tex. App. LEXIS 5256, 

at *1 (Tex. App.—Waco June 22, 2012, order). The State of Texas filed a contest to 

Dauben’s affidavit of indigence, arguing that Dauben “is not indigent as defined by the 
Dauben v. State Page 2

appellate courts.” See id. We abated this appeal and referred “the matter to the trial 

court with instructions to hear evidence and grant appropriate relief with regard to 

appellant’s affidavit . . . and the State’s contest to appellant’s affidavit.” Id. at *2. 

After a hearing at which Dauben and several others testified, the trial court 

sustained the State’s contest to Dauben’s affidavit of indigence, ostensibly concluding 

that Dauben is not indigent. Dauben subsequently appealed the trial court’s resolution 

of the State’s contest to his affidavit of indigence. By an order per curiam issued on 

August 9, 2012, we reinstated this matter and affirmed the trial court’s order sustaining 

the State’s contest to Dauben’s affidavit of indigence. Further, in that order, we 

informed Dauben that the clerk’s and reporter’s records in the underlying appeal had 

not been filed because Dauben had not arranged for the payment of these records. We 

also informed Dauben that he had not paid this Court’s $175 filing fee for this appeal. 

Moreover, we notified Dauben that the underlying appeal is subject to dismissal if he 

failed to pay, or make arrangements to pay, for the clerk’s and reporter’s records and 

this Court’s filing fees within twenty-one days of the date of the order. More than 

twenty-one days have passed since we issued our August 9, 2012 order per curiam, and 

Dauben has neither paid nor made arrangements to pay for the clerk’s and reporter’s 

records or this Court’s filing fees. In addition, Dauben has not informed this Court of 

any actions he has taken to pay for the records and this Court’s filing fees. Accordingly, 

this appeal is dismissed for want of prosecution. See TEX. R. APP. P. 37.3(b), 42.3(b).

Absent a specific exemption, the Clerk of the Court must collect filing fees at the 

time a document is presented for filing. See id. at R. 12.1(b); Appendix to TEX. R. APP. P., 
Dauben v. State Page 3

Order Regarding Fees (Amended Aug. 28, 2007, eff. Sept. 1, 2007); see also id. at R. 5; 

10TH TEX. APP. (WACO) LOC. R. 5; TEX. GOV’T CODE ANN. §§ 51.207(b), 51.208, 51.941(a) 

(West 2005 & Supp. 2011). Under these circumstances, we suspend the rule and order 

the Clerk to write off all unpaid filing fees in this case. TEX. R. APP. P. 2. The write-off 

of the fees from the accounts receivable of the Court in no way eliminates or reduces the 

fees owed. See, e.g., Davis v. Cogdell, No. 10-12-00023-CV, 2012 Tex. App. LEXIS 2519, at 

*2 (Tex. App.—Waco Mar. 28, 2012, no pet.) (mem. op.).

AL SCOGGINS

Justice

Before Chief Justice Gray,

Justice Davis, and

Justice Scoggins

Appeal dismissed

Opinion delivered and filed September 20, 2012

[CV06]