C.M.G., Matter of

• Decision Date: 31 August 1994
• Docket Number: No. 3-94-303-CV,3-94-303-CV
• Parties: In the Matter of C.M.G.
• Court: Texas Court of Appeals

Page 411

883 S.W.2d 411

In the Matter of C.M.G.

No. 3-94-303-CV.

Court of Appeals of Texas,

Austin.

Aug. 31, 1994.

Pamela Jackson Sigman, Juvenile Public Defender, Austin, for appellant.

Ronald Earle, Dist. Atty., Julie H. Kocurek, Asst. Dist. Atty., Austin, for appellee.

Before POWERS, ABOUSSIE and JONES, JJ.

ORDER

Appellant C.M.G., a juvenile, perfected appeal by filing an affidavit of inability to pay costs of appeal. Tex.R.App.P. 40(a)(3)(A); Tex.Fam.Code Ann. § 56.01(a) (West Supp.1994) (requirements governing appeal to court of appeals from an order of the juvenile court are as in civil cases generally); Brenan v. Court of Civil Appeals, Fourteenth Dist., 444 S.W.2d 290, 292 (Tex.1968) (minors must post an appeal bond, or a pauper's affidavit in lieu thereof, in addition to notice of appeal). Pursuant to Texas Rule of Appellate Procedure 56(a), the Clerk referred the matter of whether the appeal had been properly perfected to the Court. The issue we must decide is whether C.M.G. failed to provide the required notice of filing the affidavit to the court reporter and so is not entitled to prosecute his appeal without payment of costs. Tex.R.App.P. 40(a)(3)(B) (appellant or his attorney shall give notice of filing of affidavit to opposing party or his attorney and to court reporter of court where case was tried within two days after filing; otherwise, he shall not be entitled to prosecute appeal without paying costs or giving security therefor).

In response to the Clerk's request for any documents showing that appellant gave timely notice to the court reporter, a first supplemental transcript was tendered to the Clerk of this Court on July 27, 1994. Additionally, in a letter dated July 29, 1994, C.M.G.'s counsel, the juvenile public defender, stated:

At least 90% of the juvenile cases are tape recorded. There is no official court reporter present or in charge of this. This specific case was tape recorded. The following practice has developed in juvenile court: after filing the notice of appeal and affidavit, the appellant has to call around to different court reporters and find one who will take the tape and transcribe it before the thirty day deadline for the filing of the Statement of Facts. Our office then files a Motion for Transcript to have Travis County pay the court reporter who agrees to transcribe the tape. I filed a Motion for Transcript on May 16, 1994 ... and the Order for the transcription of testimony was granted on June 5, 1994.... Travis County has paid or will be paying Betty Haygood, the court reporter who agreed to prepare the statement of facts.

I am not sure how to give a court reporter notice of the Affidavit of Inability when there was not an official court reporter present or in charge of the hearing.

The "practice" described in the juvenile public defender's letter does not excuse C.M.G. from complying with the Texas Rules of Appellate Procedure. An appellant has until the day he perfects appeal to make a timely written request to the court reporter for a statement of facts. Tex.R.App.P. 53. Thus, in order to timely request a statement of facts, an appellant must make a written request to the court reporter no later than the date on which he files his affidavit of inability. The appellant must give notice of the filing of the affidavit to the court reporter of the court where the case was tried within two days after its filing. Tex.R.App.P. 40(a)(3)(B). When a court reporter other than the official court reporter transcribes the statement of facts, this "transcribing" reporter is also entitled to notice. See Tex.R.App.P. 40(a)(3)(C). It appears that if the juvenile public defender locates a transcribing court reporter no later than the day the affidavit of inability is filed, rather than waiting until after it is filed, she could comply with Rule 40(a)(3)(B)'s notice requirement. Accordingly, nothing prevented C.M.G. from complying with Rule 40(a)(3)(B)'s notice requirement.

The notice requirement in Rule 40(a)(3)(B) is intended to allow the court reporter and appellee the opportunity to file a timely written contest. Watson v. Hart, 871 S.W.2d 914, 918 (Tex.App.--Austin 1994, orig. proceeding). Indigency provisions, like other appellate rules, have long been liberally construed in favor of a right of appeal. If the notice sufficiently fulfills the purpose of the rule, the notice requirement is met. Jones v. Stayman, 747 S.W.2d 369, 370 (Tex.1987). But see Fellowship Missionary Baptist Church v. Sigel, 749 S.W.2d 186, 188 (Tex.App.--Dallas 1988, no writ) (Jones ) should not be read so broadly as to exonerate an appellant's burden to comply with applicable rules of procedure so long as no harm results).

On May 12, 1994, C.M.G. filed his affidavit of inability and a written request for the preparation of the statement of facts. C.M.G.'s counsel, the juvenile public defender, signed the written request. A juvenile public defender is appointed to represent a juvenile only if he is indigent. See Tex.Code Crim.Proc.Ann. art. 26.044(f) (West 1989). The only way C.M.G. could perfect an appeal as an indigent is by filing an affidavit of inability. See Tex.Fam.Code Ann. § 56.01(a) (West Supp.1994); Tex.R.App.P. 40(a)(1), (a)(3)(A). The question we must decide is whether C.M.G.'s request for a statement of facts signed by the juvenile public defender put the court reporter on notice that C.M.G. was proceeding as an indigent and, thus, that he perfected his appeal by filing an affidavit of inability.

The request was filed with the district clerk. It is directed "TO THE CLERK AND THE COURT REPORTER OF SAID COURT." The certificate of service attached to the request recites that it was served on the District Attorney of the Travis County Juvenile Court but does not recite service to the official court...