C OURT OF A PPEALS FOR THE
F IRST D ISTRICT OF T EXAS AT H OUSTON

O RDER

Appellate case name: Larry Stanley and Terri Stanley v. John McClanahan

Appellate case number: 01

- 13

- 00 982

- CV

Tria l court case number: D

- 13

- 5,197

Trial court: County Court of Colorado County , Texas

On November 1, 2013 , appellant s
, Larry Stanley and Terri Stanley , filed an affidavit of indigence in th e trial c ourt in the above

- referenced matter. See T EX

. R. A PP

. P. 20.1(a)(2 )

. On December 19, 2013 , the district clerk notified the Court that no contest to the affidavit of indigence was filed. Accordingly, on December 27, 2013, we issued an order declaring appellants indigent and entitled to proceed without advance payment of costs. See T EX

. R. A PP

. P. 20.1(f) , (n)

.

O n January 2, 2014, court reporter Wendy L. Kirby, filed a “Contest to the Affidavit of Larry and/or Terri Stanley and Contest to the Preparation of the Reporter’s Record at no Cost to Larry and/or Terri Stanley” with this Court. Ms. Kirby’s contest is DEN IED as untimely.

Texas Rule of Appellate Procedure 20.1(e) provides that if an affidavit of indigence is filed “[t]he clerk, the court reporter, the court recorder, or any party may challenge an

affidavit

. . . by filing

— in the court in which the affidavi t was filed

— a contest to the affidavit.”

T EX

. R. A PP

. P. 20.1(e). Further, the Rule s t ates that the contest must be filed “within 10 days

after the date when the affidavit was filed if the affidavit was filed in the trial court.” Id. Appellants’ affidavit of indigence was filed in the trial court on November 1, 2013. Ms. Kirby did not file her contest until January 2, 2014. Thus, the contest was untimely. See id. ; see also Morris v. Aguilar , 369 S.W.3d 168 (Tex. 2012) (determining that challenge to litigant’s claim of indigen ce cannot be asserted after 10

– day deadline set forth in Texas Rule of Appellate Procedure 20.1). Lack of notice of the filing of an affidavit of indigence cannot be used to excuse an untimely challenge. See Morris , 369 S.W.3d at 171

.

The Texas Rules of Appellate Procedure state that “[u]nless a contest is timely

filed

. . . the affidavit’s allegations will be deemed true, and the party will be allowed to proceed without advance payment of costs.” T EX

. R. A PP

. P. 20.1(f); see also Morris , 369 S.W.3d at 170 n.2 (“ [W]e likewise hold that an appellant is entitled to proceed without advance payment ofcosts if there is no timely challenge to [the] affidavit of indigence.”). Thus, as stated in our

Decem ber 27, 2013 order, appellants are entitled to proceed with their appeal without advance payment of costs.

Accordingly, it is ORDERED that the Court Reporter(s ) file with this Court, within 1 0 days of the date of this order and at no cost to appellant, th e reporter’s record. See T EX

. R. A PP

. P. 20.1(k), 35.1, 35.3(c).

A ppellant ’ s brief is ORDERED filed with this Court within 30 days of the date the reporter’s record is filed

. 1 See T EX

. R. A PP

. P. 38.6(a). Appellee’s brief, if any, must be filed

within 3 0 days after the date appellant’s brief is filed

. See T EX

. R. A PP

. P. 38.6( b ).

It is so ORDERED.

Judge’s signature: /s/ Laura C. Higley

 Acting individually  Acting for the Court

Date: January 14, 2014

1 The clerk’ s record was filed on November 14 , 201 3.