Motion Granted and Order filed June 15, 2015 

In The

Fourteenth Court of Appeals

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NO. 14-14-01019-CV

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NEWELL M. EVANS, Appellant

V.

THEODORE P. FULLER, Appellee

On Appeal from the 240th District Court

Fort Bend County, Texas

Trial Court Cause No. 11-DCV-187877

ORDER

Appellant has filed a motion challenging the trial court’s order sustaining a 

contest to appellant’s affidavit of indigence.

This is an appeal from a judgment signed December 22, 2014. The notice of 

appeal was filed January 29, 2015. On June 10, 2014, more than six months before 

the judgment was signed, appellant filed a premature notice of appeal in the trial 

court. He also filed a document entitled “Unsworn Declaration of Inability to Pay 

any part of Cost of Court, provide Appeal Bond or give Security for Cost of 
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Court.” The record does not reflect that any document concerning indigence was 

filed between December 22, 2014, the date the judgment was signed, and January 

29, 2015, the date appellant filed his notice of appeal from that signed judgment.

On February 2, 2015, appellant filed, in this court, an “unsworn declaration 

of indigence,” by which he asked to proceed without advance payment of costs. 

See Tex. R. App. P. 20.1(a)(2). On February 9, 2015, court reporter Elizabeth 

Wittu filed, in the trial court, a contest to appellant’s affidavit of inability to pay 

costs. See Tex. R. App. P. 20.1(e). A hearing was scheduled on the contest for 

February 18, 2015. According to the trial court’s docket sheet, appellant did not 

appear that day, and counsel for appellee passed the hearing until the following 

day. The docket sheet reflects no party or lawyer appeared for the hearing on 

February 19. On February 24, 2015, associate judge Pedro Ruiz made a notation in 

the docket sheet that he had taken judicial notice of the file, and appellant’s 

“request for relief” was denied in camera. 

This court sent a letter to the district court on April 7, 2015, in which we 

wrote in relevant part:

On February 2, 2015, appellant filed in this court an affidavit of 

indigence. The affidavit, which was filed in this court in error, is 

being sent to the trial court clerk as an attachment to this notice. See

Tex. R. App. P. 20.1(c)(1). This court is unaware of whether an 

affidavit of indigence was filed in the trial court. The trial court clerk 

is instructed to note the date the affidavit is received in the trial court, 

but to file the affidavit effective as of the date the affidavit was filed 

in this court. If an affidavit has also been filed in the trial court, the 

court is instructed to proceed as usual with the affidavit in the trial 

court and notify this court of its ruling.

Following our letter, a hearing on appellant’s affidavit of indigence was 

scheduled for April 28, 2015. The docket sheet indicates the hearing was reset for 

May 7, 2015. On May 13, 2015, the associate judge again made an entry on the 
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docket sheet that the court was unable to find appellant indigent. 

Appellant filed a motion in this court on June 3, 2015, challenging the trial 

court’s order sustaining the contest to indigence.1 On June 4, 2015, we ordered the 

district clerk to file a supplemental clerk’s record with the trial court’s order

sustaining the contest to indigence, or, if no such order exists, a certified statement 

to that effect. On June 8, an affidavit of Lisa Tucker, an appeal clerk of the Fort 

Bend County District Clerk’s Office, was filed in this court. The affidavit states: 

“As of today’s date there is only a docket sheet entry dated 5/13/15 stating that the 

Application for Indigency [sic] was denied.”

We first consider whether appellant timely filed his affidavit of indigence. 

An affidavit of indigence must be filed in the trial court with or before the notice of 

appeal. Tex. R. App. P. 20.1(c)(1). Appellant filed two affidavits: one on June 10, 

2014, contemporaneously with his premature notice of appeal, and a second on 

February 2, 2015, four days after his notice of appeal following the trial court’s 

judgment. An appellate court may extend the time to file an affidavit of indigence 

if party moves for an extension within 15 days after the deadline for filing the 

affidavit. Tex. R. App. P. 20.1(c)(3). Appellant did not file a motion for extension 

to file his affidavit of indigence. However, a court of appeals may treat actions 

taken before an appealable order is signed as relating to an appeal of that order and 

give them effect as if they had been taken after the order was signed. Tex. R. App. 

P. 27.2. Therefore, we will treat appellant’s June 10, 2014 affidavit as having been 

filed on January 29, 2015, the day appellant filed his notice of appeal.

Any contest to the affidavit of indigence must be filed no later than 10 days 

after the affidavit was filed. The trial court must conduct a hearing on the contest 

 

1 Appellant says he did not receive notice of the trial court’s ruling until May 26, 2015. He contends that his motion, 

filed eight days after he received notice, is timely. Tex. R. App. P. 20.1(j)(2). 
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within 10 days after the contest is filed, unless the court has granted an extension 

of time of no more than 20 days for the hearing. Tex. R. App. P. 20.1(i)(2), (3). 

Unless the trial court signs an order sustaining the contest within the time period 

set for the hearing, the allegations in the affidavit will be deemed true and the party 

will be allowed to proceed without the advance payment of costs. Tex. R. App. P. 

20.1(i)(4). The trial court clerk must then prepare the appellate record without 

prepayment. Tex. R. App. P. 20.1(j).

Wittu’s contest was timely filed. See Tex. R. App. P. 20.1(e)(1). A hearing 

was timely held, even though appellant did not appear. See Tex. R. App. P. 

20.1(i)(2)(a). However, no order sustaining the contest to appellant’s claim of 

indigence was signed within the required time period. A docket entry cannot be 

substituted for a written order when that order is required to be made within a 

certain amount of time. See Walker v. Harrison, 597 S.W.2d 913, 915-16 (Tex. 

1980) (orig. proceeding). Accordingly, appellant is deemed INDIGENT for 

purposes of appeal.

Therefore, we order the Fort Bend County District Clerk to prepare and file 

a supplemental clerk’s record containing the required contents listed in Texas Rule 

of Appellate Procedure 34.5(a) that were not included in the records already filed. 

If any required items are not part of the case file, the supplemental clerk’s record 

shall contain a certified statement that the omitted item is not part of the file. The 

supplemental clerk’s record shall be due within 30 days of the date of this order.

PER CURIAM

Panel consists of Justices Boyce, McCally, and Donovan.