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COURT OF APPEALS FOR THE

FIRST DISTRICT OF TEXAS AT HOUSTON

ORDER

Appellate case name: Keith Porter v. Patricia Porter

Appellate case number: 01-14-00766-CV

Trial court case number: 2013-47027

Trial court: 308th Judicial District Court of Harris County

On January 8, 2015, this Court’s Order on Motion granted in part appellant Keith 

Porter’s second motion for extension of time to file brief and pay fees because, among 

other things, appellant’s counsel stated that the trial court had set a January 22, 2015 

hearing on her motion to set aside the November 12, 2014 order sustaining the contest to 

appellant’s affidavit of indigence. In that Order, this Court stated that “if appellant fails 

to file evidence of indigence or the filing fee by January 28, 2015, the Court may dismiss 

this appeal without further notice.” Instead, on January 26, 2015, the court reporter filed 

an information sheet stating that at the indigence hearing, rescheduled for that day, the 

trial court again denied appellant’s motion, declaring again that he was not indigent. The 

reporter also repeated that she had still not been paid for the reporter’s record for the 

underlying appeal.

On January 30, 2015, the trial court clerk issued a second letter of assignment to 

this Court from the above-mentioned trial court cause number, containing a notice of 

appeal primarily from the trial court’s January 26, 2015 order sustaining the contest to 

appellant’s affidavit of indigence. This second notice of appeal was filed by appellant in 

the trial court on January 28, 2015. Furthermore, on February 4, 2015, appellant’s 

counsel filed a document entitled, “Keith Porter Proof of Indigence,” in response to this 

Court’s January 8th Order. In that response, appellant’s counsel repeated her contention

that, despite what the trial court found, appellant was indigent and could not afford to pay 

for all of his appellate costs, and requests that this Court either waive all of his appellate 

costs or alternatively permit appellant to proceed without the reporter’s record and also 

requests an extension of time to file his appellate brief.
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Under Texas Rule of Appellate Procedure 20.1(j)(1), amended effective on March 

1, 2012, a party claiming indigence may seek review of a trial court order sustaining a 

contest to his affidavit of indigence by filing a motion challenging the order in the 

appellate court, not a notice of appeal. See TEX. R. APP. P. 20.1(j)(1). Here, appellant’s 

counsel filed a notice of appeal in which she specifically states that appellant “now gives 

his Notice of Appeal from all Order[s] . . . on January 26, 2015, Judgment And Order 

Sustaining Contest To Pauper’s Oath, any other order that shows up after the fact . . . and 

the Novemb[e]r 12, 2014 Order Signed To Sustain Contest (Temporary Order) to the 1st

Texas Court of Appeal.” Thus, appellant did not file a motion challenging the order in 

this Court and, more importantly, filed his notice of appeal in the trial court, not with this 

Court as required to give this Court prompt notice. See TEX. R. APP. P. 20.1(j)(1).

Under Texas Rule of Appellate Procedure 20.1(j)(4), a motion challenging a trial 

court’s order sustaining a contest to an affidavit of indigence is granted by operation of 

law unless the appellate court denies the motion within 10 days after it is filed. TEX. R.

APP. P. 20.1(j)(4). Because appellant’s notice of appeal was filed as a notice and in the 

trial court, the letter of assignment filing provided no notice to this Court of the need to 

consider and rule on a motion challenging the trial court’s order within 10 days of the

filing of such a motion. Consequently, consideration of such an improperly-filed notice, 

which comes to the appellate court’s attention through a letter of assignment issued by 

the trial court clerk, would encourage appellants to improperly file their Rule 20.1(j) 

motions in an effort to have their motions be granted by operation of law. Accordingly, 

this Court will not construe appellant’s “Notice of Appeal” as a motion challenging the 

trial court’s January 26, 2015 order sustaining the trial clerk’s contest to appellant’s 

affidavit of indigence pursuant to Texas Rule of Appellate Procedure 20.1(j).

Because appellant has not established indigence, it is ORDERED that appellant 

pay the appellate filing fee to this Court within 14 days of the date of this order, or the 

appeal will be dismissed. See TEX. R. APP. P. 5 (requiring payment of fees in civil cases 

unless indigent), 42.3 (allowing involuntary dismissal of case).

Although the trial clerk filed an information sheet on November 3, 2014, stating 

that the clerk’s record was filed in error because it was not paid for, the clerk’s record

was filed on October 31, 2014. Because appellant indicates that he alternatively wants to 

proceed without the reporter’s record, if appellant pays the filing fee by the above 

deadline, the Clerk of this Court will set the briefing schedule and this Court will 

consider and decide only those issues or points that do not require a reporter’s record for 

a decision. See TEX. R. APP. P. 37.3(c).

It is so ORDERED.

Judge’s signature: /s/ Evelyn V. Keyes

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Date: February 12, 2015