1 

## NO. 12

- 20

- 00171

- CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

EVANJELINA LUNA
, A PPELLANT

V.

BETTY J. PHELPS
, APPELLEE §

§

§ APPEAL FROM THE 215TH

JUDICIAL DISTRICT COURT

HARRIS COUNTY, TEXAS

MEMORANDUM OPINION PER CURIAM

T his appeal is being di smissed for fa i lure t o comply with a re qui rement of the appe llate

rules, a cou rt order, or a notice from the clerk requiring a response or other action within a
specified time

. 1 See T EX

. R. A PP

. P. 42.3(c).

A party who i s not excused by statute or the appellate rules from paying costs must pay

- -

at the time an item i s presented for filing

-- w hatever fees ar e required by s t a tute or Texas
Supreme Court order. T EX

. R. A PP

. P. 5 ; see T EX

. R. A PP

. P. 20.1 . An appellate court m ay

enforce Ru l e 5 by any order that is ju st. T EX

. R. A PP

. P. 5

. A fter givi n g t en days ’ notice , a n appellate cou rt may dismiss an appeal because the appellant failed to comply wit h a requiremen t

o f the appellate rules, a court order, or a notice from the clerk requiring a response or other
action within a speci fied ti me. T EX

. R. A PP

. P. 42.3(c).
Before this appeal was transferred to t his Court, the First Court of Appeals notified
Appellant, Evanjelina Luna

, that the filing fee was due. On July 30, 2020, the First Court sent a
past due court fee notice. On Ja nuary 1 9 , 2021

, the C lerk of this Court notified Appellan t that
the filing fee in t h is appeal is due and th at the appeal would be subject to dismissal if the fee was
not paid on or before January 2 9

. The date for remi tti ng the fi lin g fee p assed, and Appell a nt ha s

1 Pursuant to a docket equalization order issued by the Supreme Court of T exas on Jul y 30, 2020 , this appeal has been transf erred to t his Court from the First Court of Appeals in H oust on , T exas.2 not responded to this Court ’ s notice, paid the f iling fee

, or otherwise s hown that s he is excu sed
from paying the fee

. 2
Because Appellant failed, after notice, to comply with Rule 5, the ap peal is dismissed

. 3

Se e T EX

. R. A PP

. P. 42.3(c)

. All pending motion s are over ruled as moo t

. Opinion delivered F ebruary 10, 2021.
Panel consi sted of Worthen, C.J., Hoyle, J., and Neeley, J.

2 Appellant filed a p a uper ’s oath in the trial court but the clerk ’s record does not reflect an indigency ruli ng

. Even so , a party gra nted indigency statu s in the trial court, must, t o establish the right to proceed without payment of

costs
, communicate to the appellate court clerk in writing that the party is presumed indigent

. See T EX

. R. A PP

. P. 20.1 (b) (2) . T he applicability of the presumption should be stated in the notice of a ppeal and in the d ocketing

statement. Id

. Here, Appellant ’ s notice of appeal mention s nothing regarding indigenc y and she has not timely filed a docketing statement

. Nor did Appellant file a statement of in ability to afford payment of court costs with t his
Court. See T EX

. R. A PP

. P. 20.1 ( c ) (wh en no statement is fi led in the trial court)

.

3 We also note that Appellant ’s brief was d ue on Se ptember 14, 2020 . She did not file a brief and did not file a motio n for extension of time to file a brief until January 29, 2021 . She states in her motion that the fai l ure to file her brief is d ue to confusi on over the appeal being transferred to this Court. The record contains notice , dated August 7, 2020, from the Fi rst Cou rt advising the parties, including Appellant ’s counsel, of the transfer order

.3 

## COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

FEBRUARY 10 , 2021

NO. 12

- 20

- 0017 1

- CV

EVANJELI NA LUNA , Appellant
V.
BETTY J. PHELPS , A ppellee

Ap peal from the 215th District Court

of Harris County, Texas (Tr.Ct.No. 2016

- 19574 )

THIS CAUSE came to be heard on the appe llate r ecor d; and the same being
considered, it is the opinion of this Court that this app eal should be dismiss ed.

It is therefore ORD ERED, ADJUDGED and DECREED by this Court that
this appeal be, and the sam e is, her e by dismissed ; and that this decision be certif ied to the cou rt

below for observance.

By per curiam opinion

. Panel consist ed of Wor then, C.J., Hoyle, J. and Neeley, J.