Abdnor v. Ovard
Decision Date | 20 July 1983 |
Docket Number | No. 705-82,705-82 |
Citation | 653 S.W.2d 793 |
Parties | John Howard ABDNOR, Appellant, v. John OVARD, Judge, 265th District Court, Appellee. |
Court | Texas Court of Criminal Appeals |
Ronald L. Goranson, Dallas, Oscar H. Mauzy, Grand Prairie, for appellant.
Hal E. Turley, Staff Atty., Dallas County Criminal Dist. Courts, Dallas, Robert Huttash, State's Atty. and Alfred Walker, Asst. State's Atty., Austin, for the State.
Before the court en banc.
OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
We granted appellant's petition in order to review the published opinion of the Dallas Court of Appeals denying his application for a writ of mandamus to compel the trial court to order that he be furnished with a transcription of the court reporter's notes (statement of facts) without cost. Abdnor v. Ovard, 635 S.W.2d 864 (Tex.App.--Dallas 1982).
The court of appeals, relying on Tex.Const.Art. 5, § 6 and Article 1823, V.A.C.S. (1964) held that, because notice of appeal had been filed, it had jurisdiction to entertain an application for mandamus in this case, in order to protect its appellate jurisdiction. Abdnor v. Ovard, supra, at 867.
In its treatment of the merits of appellant's mandamus application the court erred in applying an indigency test of its own creation, a standard which is in conflict with this Court's pronouncements and which both of the opposing parties urge us to reject. The court of appeals applied a "firm standard" drawn from its opinion in Ex parte Hennig, 559 S.W.2d 401 (Tex.Civ.App.--Dallas 1977, no writ), in which the relator sought habeas corpus relief from confinement resulting from his being held in contempt for disobedience of a child support order. In that case and in this one the court of appeals required proof of each of the following:
The facts are set out in the opinion of the court of appeals. The testimony at the indigency hearing showed that the transcript would cost $24,500, that appellant's father had been appointed guardian of his estate, and that appellant was forty one years old.
A determination whether an appellant is entitled to a free transcription must be made on a case by case basis; no rigid standard exists. Conrad v. State, 537 S.W.2d 755 (Tex.Cr.App.1976). See also Ex parte Combs, 545 S.W.2d 171 (Tex.Cr.App.1977) and Roberson v. State, 538 S.W.2d 788 (Tex.Cr.App.1976). In Conrad, at 757, the Court also emphasized the following:
In the present case the court of appeals noted "the absence of a firm standard from either the statute or prior cases" but expressed confidence that its own test was consistent with this Court's opinion in Castillo v. State, 595 S.W.2d 552 (Tex.Cr.App.1980). However, in Castillo, at 554, and the cases cited therein, we have clearly stated...
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