Summary
The Texas Court of Appeals, Third District, abated the appeal to allow the trial court to address Cliff Burke’s affidavit of indigence. The court directed the trial court to handle any contest under Texas Rule of Appellate Procedure 20.1 and to forward relevant documents and findings concerning indigency to the appellate court.
Topics
Practice areas
Questions Presented
- Whether the appeal should be dismissed because Burke failed to pay the appellate filing fee and clerk's-record fee and failed to timely file an affidavit of indigence.
- What procedure the court should follow after Burke filed an affidavit of indigence in the court of appeals.
Holdings
- An appellant must be given an opportunity to cure defects before an appeal is dismissed for noncompliance.
- The appeal should be abated so that the trial court could process any contest to Burke's affidavit of indigence and transmit the relevant documents and findings to the court of appeals.
Key quotations
“An appellant must be given time to cure any defects before the appeal may be dismissed for noncompliance.” ((1))
Factual background
Cliff Burke, proceeding pro se, was incarcerated in the Arizona Department of Corrections. He had not paid the appellate filing fee or made arrangements to pay for the clerk's record, and he filed an affidavit of indigence in the court of appeals rather than in the trial court with or before his notice of appeal.
Procedural history
Burke, appearing pro se and incarcerated in Arizona, filed an appeal but had not paid the $175 filing fee or arranged payment for the clerk's record, and had not filed a docketing statement. He filed an affidavit of indigence in the court of appeals after the deadline for filing it in the trial court. The court withdrew its March 21, 2008 opinion, substituted this memorandum opinion, abated the appeal, and directed the trial court to process the affidavit and transmit the relevant record and findings.
Remand instructions
The court forwarded Burke's affidavit of indigence to the trial court. Any contest had to be filed in the trial court within 15 days. If a contest was filed, the trial court was ordered to proceed under Texas Rule of Appellate Procedure 20.1(i) and to forward all documents relevant to Burke's indigency claim, together with findings of fact and conclusions of law, to the court of appeals within 30 days.