Reversed and Rendered and Memorandum Opinion filed April 23, 2013.

In The

Fourteenth Court of Appeals

NO. 14-12-00308-CV

HELEN MAYFIELD, Appellant

V.

HARRIS COUNTY, Appellee

On Appeal from the 129th District Court

Harris County, Texas

Trial Court Cause No. 2011-26254

M E M O R A N D U M O P I N I O N

This is an appeal from the trial court’s order signed March 19, 2012, 

sustaining the Harris County District Clerk’s contest to appellant Helen Mayfield’s 

affidavit of indigence. See Tex. R. App. P. 20.1. Appellant has perfected a separate 

appeal from a summary judgment signed December 12, 2011, which is currently 

abated, pending the resolution of appellant’s claim of indigence. See Helen 

Mayfield v. The Eagle Newspaper, Holly Huffman, Matthew Watkins and John P. 

Barnwell, CEO of the Evening Post Publishing Co., No 14-12-00034-CV.
2

Appellant filed an affidavit in the court below, attesting to her inability to 

pay costs of the appeal. 1The Harris County District Clerk filed a timely contest to 

the affidavit and a motion to extend time to conduct a hearing on the contest. The 

trial court granted the extension and sustained the District Clerk’s contest. 

Appellant filed a timely notice of appeal from the order sustaining the contest. 

Because appellant has appealed the final judgment, she is entitled to 

challenge the denial of her indigent status for the appeal, and we may order the

record necessary for a review of the trial court’s ruling without the advance 

payment of costs. See In re Arroyo, 988 S.W.2d 737, 738-39 (Tex. 1998). 

Accordingly, we ordered a partial record related to the indigence appeal. The 

record and the parties’ briefs on the issue of indigence have now been filed.

Texas Rule of Appellate Procedure 20.1 governs the procedure to be 

followed when a party seeks to appeal without the advance payment of costs. See

Tex. R. App. P. 20.1. Rule 20.1(i)(1) provides that when an affidavit is filed in the 

trial court and a contest is filed, as in this case, “the trial court must set a hearing 

and notify the parties and the appropriate court reporter of the setting.” See Tex. R. 

App. P. 20.1(i)(1). The hearing must be conducted, or an order signed extending 

the time to conduct the hearing, within 10 days after the contest was filed. Tex. R. 

App. P. 20.1(i)(2)(A). “The time for conducting a hearing on the contest must not 

be extended for more than 20 days from the date the order is signed.” Tex. R. App. 

 

1 Appellant asserts in her brief that she filed an affidavit of indigence “with her Notice of 

Appeal,” which was filed January 10, 2012. According to the record before this court, the 

affidavit of indigence was filed February 13, 2012. Even though the appellate rules contemplate 

that an affidavit of indigence will be filed at the same time as a notice of appeal, the Texas 

Supreme Court has confirmed that because the affidavit’s filing is not jurisdictional, an affidavit 

that is filed later is effective. See Higgins v. Randall Cnty. Sheriff’s Office, 193 S.W.3d 898, 899-

900 (Tex. 2006). Appellant’s affidavit was filed before the March 1, 2012, effective date of 

recent changes to Texas Rule of Appellate Procedure 20.1, which governs claims of indigence in 

the appellate courts. See Misc. Docket No. 12–9030 (Tex. Feb. 13, 2012), 75 Tex. B.J. 228. 

Accordingly, we have applied the former rule to this appeal.
3

P. 20.1(i)(3). “Unless—within the period set for the hearing—the trial court signs 

an order sustaining the contest, the affidavit’s allegations will be deemed true, and 

the party will be allowed to proceed without advance payment of costs.” Tex. R. 

App. P. 20.1(i)(4).

We review a trial court’s ruling on a contest to an affidavit of indigence for 

abuse of discretion. Basaldua v. Hadden, 298 S.W.3d 238, 241 (Tex. App.—San 

Antonio 2009, no pet.). A trial court abuses its discretion when it acts in an 

arbitrary or unreasonable manner without reference to any guiding rules or 

principles. Jelinek v. Casas, 328 S.W.3d 526, 539 (Tex. 2010). A trial court has no 

discretion in determining what the law is or applying the law to the facts. In re 

Kuntz, 124 S.W.3d 179, 181 (Tex. 2003).

In appellant’s second issue, which is dispositive of this appeal, she asserts 

that the trial court’s order sustaining the District Clerk’s contest was untimely 

because the time for a hearing was improperly extended. She contends that the trial 

court abused its discretion by sustaining the contest to her affidavit when the order 

granting an extension of time to conduct a hearing on the contest was not signed 

within the time permitted by the governing rules. The affidavit was filed February 

13, 2012, and the contest was filed February 21, 2012. Therefore, the trial court 

was required to sign an order on or before March 2, 2012, 10 days after the contest 

was filed. See Tex. R. App. P. 20.1(i)(2)(A). Instead, on March 19, 2012, the trial 

court signed two orders: one granting an extension of time until March 5, 2012, to 

conduct the hearing; and a second order sustaining the contest. These orders are 

untimely. 

First, the trial court’s orders were signed more than 10 days after the contest 

was filed. See In re G.C., 22 S.W.3d 932, 932-33 (Tex. 2000) (holding trial court 

must sign an order within 10 days after the contest is filed either sustaining the 
4

contest or extending the time for a hearing); see also Tex. R. App. P. 20.1(i)(2). In 

addition, the order sustaining the contest is untimely because it was signed after the 

extended date set out in the order granting the extension. See Montalvo v. JP 

Morgan Chase Bank, NA, 375 S.W.3d 553, 554-55 (Tex. App.—Houston [14th 

Dist.] 2012, no pet.) (holding trial court abuses its discretion in signing an order 

sustaining a contest beyond the time set for the hearing). Even though the time 

period may be extended for up to 20 days, if the trial court sets an earlier time in its 

extension order, the court must sign an order sustaining the contest by the earlier 

date, or the affidavit’s allegations will be taken as true. Id. at 554.

Unless the trial court signs an order sustaining the contest or extending the 

time for a hearing within 10 days after the contest was filed, Rule 20.1 requires the 

allegations in the affidavit to be deemed true and authorizes the appellant to 

proceed with an appeal without prepayment of costs. In re G.C., 22 S.W.3d at 932-

33 (citing Tex. R. App. P. 20.1(i)(4)). Therefore, we conclude the trial court

abused its discretion in sustaining the contest to appellant’s affidavit of indigence

because the trial court’s order was untimely. We sustain appellant’s second issue.

We reverse the trial court’s order signed March 19, 2012, and order that 

appellant is entitled to proceed on appeal from the summary judgment signed 

December 12, 2011, without the advance payment of costs.2

PER CURIAM

Panel consists of Justices Boyce, Jamison and Busby.

 

2

 By separate order issued in the main appeal docketed under number 14-12-00034-CV, the 

court orders the appeal reinstated and the filing of the complete record without the advance 

payment of costs.