Morris v. Aguilar

• Court: Supreme Court of Texas
• Citation: 369 S.W.3d 168,55 Tex. Sup. Ct. J. 847
• Docket Number: No. 10–0831.,10–0831.
• Parties: Diana L. MORRIS a/k/a Diana Aguilar, Petitioner, v. Juan AGUILAR and Margarita Aguilar, Respondents.
• Decision Date: 08 June 2012

369 S.W.3d 168
55 Tex. Sup. Ct. J. 847

Diana L. MORRIS a/k/a Diana Aguilar, Petitioner,
v.
Juan AGUILAR and Margarita Aguilar, Respondents.

No. 10–0831.

Supreme Court of Texas.

June 8, 2012.

[369 S.W.3d 169]

Graham Baker, Ray, Valdez McChristian & Jeans, P.C., San Antonio, Richard Clark Harrist, Cooper & Sully, PC., Dallas, William Ambrose Biggs, Attorney at Law, Judith Anne Gres Deberry, State Bar of Texas, Austin, for Diana L. Morris.

Margo Ahern Fox, Fox & Associates, PLLC, Round Rock, Elizabeth M. Bruman, Law Office of Elizabeth Bruman, P.C., Shelly W. Durham, Law Office of Shelly W. Durham, Houston, for Juan Aguilar.

PER CURIAM.

In this appeal we determine whether a challenge to a litigant's claim of indigence can be asserted after the 10–day deadline set forth in Texas Rule of Appellate Procedure 20.1. After a custody dispute in the trial court, a mother and her husband filed an affidavit of indigence to allow them to appeal without advance payment of costs. Twenty-four days after the deadline for contesting the affidavit of indigence, the

[369 S.W.3d 170]

court reporter filed a contest. After a hearing, the trial court ruled that the mother and her husband were not indigent. The court of appeals affirmed. We hold that the Rules of Appellate Procedure do not allow the untimely challenge and reverse and remand to the court of appeals to consider the merits of the appeal.

The underlying lawsuit affects the custody of two of Petitioner Diana L. Morris's daughters, ages 15 and 9. The trial court appointed Morris's parents, respondents Juan and Margarita Aguilar, sole joint managing conservators of the older daughter and granted them visitation rights to the younger daughter. Morris is married to the father of the younger daughter. The court appointed Diana Morris and Phillip Perez possessory conservators of the older daughter, and the Morrises joint managing conservators of the younger daughter.

An attorney represented Morris and her husband in the trial court. After the court issued its final order, the Morrises timely filed an affidavit of indigence and a notice of appeal. The court reporter filed a contest to the affidavit 24 days after the 10–day deadline.¹ In the contest, the reporter stated that she had first received Morris's affidavit two days earlier. After a hearing, at which Morris was represented by her pro bono counsel, the trial court sustained the contest. Morris appealed that ruling, and the court of appeals affirmed. 366 S.W.3d 208, 209.

Texas Rule of Appellate Procedure 20.1(f) states:

Unless a contest is timely filed, no hearing will be conducted, the affidavit's allegations will be deemed true, and the party will be allowed to proceed without advance payment of costs.

TEX. R. APP. P. 20.1(f). The court of appeals concluded that because Morris did not object in the trial court to the late filing of the reporter's contest, “thus giving the court the opportunity to consider and correct any timeliness-related errors, [Morris] has not preserved any error related to the untimely contest.” 366 S.W.3d at 210. However, a trial court cannot cure the late filing of a contest; the rule mandates that the appeal without advance payment of costs be allowed, as we have previously held. In re C.H.C. 331 S.W.3d 426, 429 (Tex.2011) (per curiam) ²; see also Higgins v. Randall Cnty. Sheriff's Office, 193 S.W.3d 898, 899 (Tex.2006) (per curiam). Furthermore, the error in refusing to allow the appeal to proceed was not the trial court's, which should have had no control of the matter here, but was the court of appeals'.³

[369 S.W.3d 171]

Rule 20.1(f) is mandatory to protect the indigent appellant and uphold the principle that “[c]ourts should be open to all, including those who cannot afford the costs of admission.” In re C.H.C., 331 S.W.3d at 429;accord Higgins v. Randall Cnty. Sheriff's Office (“Higgins II”), 257 S.W.3d 684, 686 (Tex.2008). Although Morris was represented in the trial court pro bono, many indigent parties are pro se. To require a pro se party to object to a late-filed contest to an affidavit of indigence in order to preserve error—something the party is not likely to know to do—is to eviscerate the protection Rule 20.1(f) is intended to afford.

The Aguilars argue that Rule 20.1(e)'s 10–day deadline for filing a contest can be extended by the trial court under Texas Rule of Civil Procedure 5 and Texas...