Opinion

Lizzie J. Lovall v. the University of Houston, the College of Liberal Arts and Social Sciences, the Board of Regents, John Antel and Jay Gogue

Court
Texas Court of Appeals, 1st District (Houston)
Filed
Mar 27, 2009
Status
Published
Cited by
0 cases

The opinion

Opinion issued March 27, 2009

In The

Court of Appeals

For The

First District of Texas

NO. 01-06-00775-CV

LIZZIE LOVALL, Appellant

V.

THE UNIVERSITY OF HOUSTON, THE COLLEGE OF LIBERAL ARTS

AND SOCIAL SCIENCES, THE BOARD OF REGENTS, JOHN ANTEL

AND JAY GOGUE, Appellees

On Appeal from the 334th District Court

Harris County, Texas

Trial Court Cause No. 2006-29290

MEMORANDUM OPINION Appellant, Lizzie Lovall, has neither established indigence, nor paid all the

required fees. See Tex. R. App. P. 5 (requiring payment of fees in civil cases unless

indigent), 20.1 (listing requirements for establishing indigence); see also Tex. Gov't

Code Ann. §§ 51.207 (Vernon 2005), 51.208 (Vernon Supp. 2008); 51.941(a)

(Vernon 2005), 101.041 (Vernon Supp. 2008) (listing fees in court of appeals); Fees

Civ. Cases B(1), (3) (listing fees in court of appeals).

The trial court sustained the district clerk's contest to her affidavit of indigence.

See Tex. R. App. P. 20.1(a)(2) (if appellant's affidavit of indigence is contested, trial

court may sustain the contest by written order). Appellant then filed in this Court her

"First Amended Motion for Review of Trial Court's Order Sustaining District Clerk's

Contest to Affidavit of Inability." This Court requested the trial court record relative

to indigence. We then considered the record, appellant's motion, and appellee's

response brief. Lovall v. The University of Houston , (Tex. App.--Houston [1st Dist.]

January 27, 2009, order).

In her motion, Lovall, in three issues, had contended that the trial court erred

in not making findings of fact and conclusions of law in support of its order

sustaining the district clerk's contest, concluding that Lovall had not "sufficiently

proved her indigence," and "granting more relief than that requested." We note first

that the trial court was not required to enter findings of fact and conclusions of law.

Lovall had the burden of proof to establish the allegations in her indigency affidavit.

Tex. R. App. P. 20.1(g). However, as conceded in her motion, Lovall did not present

any evidence in support of her allegations. Rather she relied upon her affidavit

exclusively, which the district clerk challenged as insufficient to establish indigency.

Accordingly, fact findings would not be helpful to this Court and, thus, not

appropriate. Second, in its order sustaining the district clerk's contest, the trial court

held that Lovall had "not established that she is unable to pay the costs of appeal."

Although Lovall claimed that evidence of her food stamps, social security income,

and Medicaid benefits "established prima facie proof of indigence," her affidavit of

indigence did not comply with Rule 20.1. See Tex. R. App. P. 20.1(a)(1), (b).

Importantly, for example, although Lovall stated in her affidavit that she owns

property "claimed as homestead," she provided the trial court with no "complete

information" about this real property. See Tex. R. App. P. 20.1(a), (b) (requiring that

affidavit "contain complete information about . . . real and personal property the party

owns"). Finally, although Lovall complained that the trial court erred in "granting

more relief than that requested," the district clerk challenged Lovall's claim of

indigence by contesting her affidavit, and the trial court entered an order sustaining

the clerk's contest.

Accordingly, we affirmed the trial court's order sustaining the district clerk's

contest to appellant's affidavit of indigence, and we ordered appellant to pay the

appellate filing fee within 30 days of the date of the order on pain of dismissal of her

appeal. Id .; see also Arroyo , 988 S.W.2d at 739 ("The court of appeals should also

defer the payment of fees under Rule 5 until it determines whether payment is due.").

Thirty days from the date of the order have passed, but appellant has not paid the

$125 filing fee.

Appellant has filed an "Amended Motion for Court to Issue its Opinion Giving

Rise to Its January 27, 2009 Order," "Amended Motion for Extension of Time to File

Motion For Rehearing," and "Amended Motion to Pay Fees Ordered on January 27,

2009." We deny these and any other pending motions.

We dismiss the appeal for nonpayment of all required fees.

PER CURIAM

Panel consists of Justices Jennings, Keyes, and Higley.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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