Helvetia Asset Recovery 

Fourth Court of Appeals

San Antonio, Texas

June 27, 2014

No. 04-14-00319-CV

Burton KAHN,

Appellant

v.

HELVETIA ASSET RECOVERY INC.,

Appellee

From the 407th Judicial District Court, Bexar County, Texas

Trial Court No. 2013-CI-18355

Honorable Martha B. Tanner, Judge Presiding

ORDER

Pro se appellant Burton Kahn filed a notice of appeal on May 1, 2014. After the district 

clerk notified this court that Appellant has not paid for the record, on June 20, 2014, we ordered 

Appellant to provide written proof to this court that Appellant has paid for the record or 

Appellant is entitled to appeal without paying for the clerk’s record. On June 25, 2014, 

Appellant filed an affidavit of inability to pay costs.

A party who cannot pay the costs of an appeal must file an affidavit of indigence “in the 

trial court with or before the notice of appeal.” TEX. R. APP. P. 20.1(c)(1) (emphasis added). 

The clerk’s record has not yet been filed in this case. However, even if Appellant filed an 

affidavit of indigence with the trial court before it issued its final judgment, “[a] prior filing of an 

affidavit of indigence in the trial court pursuant to Texas Rule of Civil Procedure 145 does not 

meet the requirements of this rule, which requires a separate affidavit and proof of current 

indigence.” See id. 

Appellant’s affidavit was due in the trial court on May 1, 2014, the date the notice of 

appeal was filed. See id. R. 20.1(c)(1), (3). However, an untimely, uncontested affidavit of 

indigence can be “adequate to fulfill the fundamental purpose of Rule 20.1.” See Higgins v. 

Randall County Sheriff’s Office, 257 S.W.3d 684, 688 (Tex. 2008). 

This appeal is ABATED, and the trial court clerk, court reporter, or any party can file a 

contest to the affidavit in the trial court in accordance with Rule 20.1(e) within TEN DAYS
from the date of this order. See TEX. R. APP. P. 20.1(e) (requiring persons to file any contest to 

the affidavit “in the court in which the affidavit was filed”). If a contest is timely filed, the trial 

court is ORDERED to proceed in accordance with Rule 20.1(i). See id. R. 20.1(i). 

If no contest is filed or if a contest is overruled, the trial court is ORDERED to determine 

whether or not the appeal is frivolous in accordance with section 13.003 of the Texas Civil 

Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. § 13.003 (West 2002). 

The trial court clerk is ORDERED to file a supplemental clerk’s record containing all 

filings and orders relating to the affidavit of indigence no later than (1) TWENTY DAYS from 

the date of this order if no timely contest is filed, or (2) FORTY-FIVE DAYS from the date of 

this order if a timely contest to the affidavit is filed. In the event a contest is filed, the court 

reporter responsible for transcribing the record of the hearing on the contest is ORDERED to file 

a reporter’s record from the hearing no later than FORTY-FIVE DAYS from the date of this 

order.

The clerk of this court is DIRECTED to send a copy of this order and a copy of the 

affidavit to the parties, the trial court clerk, the court reporter, and the trial court judge. See TEX.

R. APP. P. 20.1(d)(2). 

All other appellate deadlines are SUSPENDED pending further order of this court.

_________________________________

Patricia O. Alvarez, Justice

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said 

court on this 27th day of June, 2014.

___________________________________

Keith E. Hottle

Clerk of Court