VanDeWater, In re
| Decision Date | 25 March 1998 |
| Docket Number | No. 04-97-00560-CV,04-97-00560-CV |
| Citation | 966 S.W.2d 730 |
| Parties | In re Lillian Marie VanDeWATER. 1 |
| Court | Texas Court of Appeals |
Lillian Marie VanDeWater, San Antonio, pro se.
Maureen McNiece, Frank R. Rivas & Associates, San Antonio, Stephen A. Katz, Jo Chris G. Lopez, Shaddox, Compere, Walraven & Good, P.C., San Antonio, for Appellee.
Before LPEZ, STONE and DUNCAN, JJ.
This requires us to determine whether a trial court's ruling on the frivolity of an appeal must be made within the same time limits as its ruling on the indigency of an appellant. The relator, Lillian Marie VanDeWater, timely perfected an appeal by filing an affidavit of inability to pay costs. The real parties in interest, Concepcion Solis and JoAnne Creed, timely contested the affidavit and alleged the appeal was frivolous. The trial court overruled the contest, but it nonetheless denied VanDeWater a free statement of facts under the authority of Section 13.003 of the Civil Practice and Remedies Code, regarding frivolous appeals. VanDeWater contends the trial court erred by failing to rule on the frivolity of her appeal within the time limits prescribed by Rule 40(a)(3)(E) of the Texas Rules of Appellate Procedure. 2 We agree.
VanDeWater sued Concepcion Solis for injuries sustained by VanDeWater's son in a car accident. The jury returned a take-nothing verdict in Solis's favor, and the trial court rendered judgment on the verdict on March 6, 1997. On June 3, VanDeWater timely filed an affidavit of inability to pay costs on appeal and formally requested preparation of the statement of facts. The court reporter, JoAnne Creed, timely filed a contest to the affidavit of indigency on June 6; and, on June 10, Solis timely filed a contest in which she also alleged the appeal was frivolous. On June 23, more than ten days after the first contest was filed, the trial court signed an order overruling the contest to the affidavit of indigency but denying VanDeWater a free copy of the statement of facts.
Mandamus issues only to correct a clear abuse of discretion or a violation of a duty imposed by law when there is no other adequate remedy at law. Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992). A party has no adequate remedy at law when an underlying appeal would be meaningless. See, e.g., National Union Fire Ins. Co. v. Ninth Court of Appeals, 864 S.W.2d 58, 61 (Tex.1993). An abuse of discretion occurs when the trial court acts without reference to any guiding rules or principles or acts in an arbitrary or unreasonable manner. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985). While we defer to the trial court's decision on factual issues, we review legal issues de novo. See Pony Express Courier Corp. v. Morris, 921 S.W.2d 817, 820 (Tex.App.--San Antonio 1996, no writ) (citing Walker, 827 S.W.2d at 839-40). The real parties in interest agree this proceeding involves a question of law.
In the absence of a statement of facts, appellate review is generally limited to fundamental error. See Krasniqi v. Dallas County Child Protective Servs., 809 S.W.2d 927, 933 (Tex.App.--Dallas 1991, writ denied); Stine v. Koga, 790 S.W.2d 412, 413 (). Thus, without a statement of facts, VanDeWater's appeal is a "useless exercise." See National Union Fire Ins., 864 S.W.2d at 61 & n. 8; see also Bryant v. Dutton, 934 S.W.2d 713, 714 (Tex.App.--Houston [1st Dist.] 1996, orig. proceeding). We therefore conclude she has no adequate remedy at law.
In construing Section 13.003 of the Civil Practice and Remedies Code, we follow the guidelines of the Code Construction Act. See TEX. CIV. PRAC. & REM.CODE ANN. § 1.002 (Vernon Supp.1988) (). We must therefore presume the statute is constitutional and effective in its entirety; the Legislature intended a just, reasonable, and feasible result; and the public interest prevails over private interests. TEX. GOV'T CODE ANN. § 311.021 (Vernon 1988). In construing a statute, whether or not ambiguous on its face, we may consider the legislation's objectives and consequences as well as circumstances surrounding enactment. Id. § 311.023.
Because rules of procedure have the same force and effect as statutes, we apply similar rules of construction. Burrhus v. M & S Supply, Inc., 933 S.W.2d 635, 640 (Tex.App.--San Antonio 1996, writ denied); see also TEX. GOV'T CODE ANN. § 22.003(b) (Vernon 1988) (). For example, if a rule of procedure and a statute address the same subject matter and have the same general purpose, they are considered in pari materia and should be harmonized with each other. Click v. Tyra, 867 S.W.2d 406, 407-08 (Tex.App.--Houston [14th Dist.] 1993, orig. proceeding); see also The Cadle Co. v. Butler, 951 S.W.2d 901, 907 (Tex.App.--Corpus Christi 1997, n.w.h.); TEX. GOV'T CODE ANN. § 312.005 (Vernon 1988). Statutes are considered in pari materia even if they fail to reference each other or were passed at different times. Wintermann v. McDonald, 129 Tex. 275, 102 S.W.2d 167, 171 (1937); Reed v. State Dept. of Licensing & Regulation, 820 S.W.2d 1, 2 (Tex.App.--Austin 1991, no writ).
Under Rule 40, an appellant perfects a civil appeal by posting a cost bond or its equivalent, such as the affidavit of indigency described in Rule 40(a)(3). The rule specifically limits the time for ruling on a contest to the affidavit:
If no contest is filed in the allotted time [within ten days of receiving notice of the affidavit], the allegations of the affidavit shall be taken as true. If a contest is filed, the court shall hear the same within ten days after its filing unless the court extends the time for hearing and determining the contest by a signed written order made within the ten day period. The court shall not extend the time for more than twenty additional days after the date of the order of extension. If no ruling is made on the contest within the ten day period or within the period of time as extended by the court, the allegations of the affidavit shall be taken as true.
TEX.R.APP. P. 40(a)(3)(E) (emphasis added); see also Ramirez v. Packer, 807 S.W.2d 728, 729 (Tex.1991) ().
Rule 40 works in conjunction with Rule 53(j)(1), which describes when a free statement of facts is available in a civil case:
In any case where the appellant has filed the affidavit required by Rule 40 to appeal his case without bond, and no contest is filed, or any contest is overruled, the court or judge upon application of appellant shall order the official reporter to prepare a statement of facts, and to deliver it to appellant, but the court reporter shall receive no pay for same.
TEX.R.APP. P. 53(j)(1) (emphasis added); see also TEX.R.APP. P. 13(k) (). 3
In 1993, the Legislature limited access to a free statement of facts by enacting Section 13.003 of the Civil Practice and Remedies Code:
(a) A court reporter shall provide without cost a transcript of the statement of facts for appealing a judgment from the court only if:
(1) an affidavit of inability to pay the cost of the appeal has been filed under the Texas Rules of Appellate procedure; and
(2) the trial judge finds:
(A) the appeal is not frivolous; and
(B) the statement of facts is needed to decide the issue presented by the appeal.
(b) In determining whether an appeal is frivolous, a judge may consider whether the appellant has presented a substantial question for appellate review.
Act of May 28, 1993, 73rd Leg., R.S., ch. 861, § 1, 1993 Tex. Gen. Laws 3374, 3374 (effective Sept. 1, 1993) (emphasis added), amended by Act of May 15, 1997, 75th Leg., R.S., ch. 467, § 1, 1997 Tex. Gen. Laws 1789, 1789 (effective Sept. 1, 1997) . 4
Although Rule 40 and Section 13.003 do not reference each other and were not created at the same time, they both address an appellant's indigent status and an appellant's right to a free statement of facts. Additionally, they were both designed to decrease the public costs of an indigent's appeal. See Warminski v. Dear, 608 S.W.2d 621, 623 (Tex.Crim.App.1980); Debate on Tex. S.B. 820, Senate Comm. on Jurisprudence, 73rd Leg., R.S. (April 20, 1993); Debate on Tex. S.B. 820, House Comm. on Judicial Affairs, 73rd Leg., R.S. (May 24 & 26, 1993). Because the rule and the statute share a common subject and purpose, they should be construed together.
If the rule and the statute were not harmonized, Rule 40 would require the trial court to order a free statement of facts, regardless of the provisions of Section 13.003. See TEX.R.APP. P. 53(j)(1), 13(k). Conversely, if the provisions were not in pari materia, Section 13.003 would leave the trial court without any time lines for ruling within a period generally outside its plenary power. 5 Thus, when read together, the two provisions create the guiding rules and principles necessary for the trial court to properly exercise its discretion under either the rule or the statute.
In this case, VanDeWater's affidavit of indigency was timely contested on June 6. See TEX.R.APP. P. 40(a)(3)(C); Ramirez, 807 S.W.2d at 729. The trial court had ten days, until June 16, to continue its ruling or to decide whether VanDeWater was indigent and her appeal frivolous. See TEX.R.APP. P. 40(a)(3)(E). The trial court did not act until June 23. By not acting within the time permitted by Rule 40, the trial court abused its discretion. Cf. Watson v. Hart, 871 S.W.2d 914, 920 (Tex.App.--Austin 1994, no writ) ( order void because trial court ruled on indigency outside the time limits of Rule 40).
Because VanDeWater has shown an...
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