Opinion

Fredrick Dwayne Dyer v. Texas Board of Pardons and Paroles

Court
Texas Court of Appeals, 1st District (Houston)
Filed
Jan 14, 2010
Status
Published
Cited by
0 cases
Authority
More cited than 35.3%

The opinion

Opinion issued January 14, 2010

In The

Court of Appeals

For The

First District of Texas

NO. 01-08-00884-CV

FREDRICK DWAYNE DYER, Appellant

V.

TEXAS BOARD OF PARDONS AND PAROLES, Appellee

On Appeal from the 190th District Court

Harris County, Texas

Trial Court Cause No. 2008-45006

MEMORANDUM OPINION

The

trial court signed an order sustaining the district clerk’s contest to Fredrick

Dyer’s affidavit of indigency. On

appeal, Dyer requests that we reverse the trial court’s order and allow him to

proceed as indigent in the trial court.

We dismiss the appeal for want of jurisdiction because the trial court’s

order sustaining the contest to Dyer’s affidavit of indigency is neither final

nor appealable.

Background

On July 24, 2008, Dyer, acting pro

se, petitioned for expunction of an arrest record pursuant to Chapter 55 of the

Texas Code of Criminal Procedure. See Tex.

Code Crim. Proc. Ann. art.

55.01 (Vernon Supp. 2009). Dyer also filed a declaration of his

inability to pay court costs and requested to proceed as indigent in the trial

court. The district clerk contested

Dyer’s declaration, and the trial court signed an order sustaining the contest

on October 3, 2008. The trial court’s

order stated:

IT IS FURTHER ORDERED that the District Clerk of

Harris County shall not proceed to process any further actions or settings on

this case unless and until the Affiant Frederick [sic] Dwayne Dyer pays in full

all filing fees in the amount of $246.00 plus any and all costs incurred in the

process of this case. . . . In the event, the District

Clerk of Harris County does not receive payment for all fees and costs on or

before November 15, 2008, this case shall be dismissed without prejudice.

Dyer filed a notice of appeal with

the trial court on October 20, 2008, along with an additional declaration of his

inability to pay appellate costs and fees.

The district clerk contested this declaration as well, contending that

Dyer’s affidavit did not comply with the requirements of Texas Rule of Appellate

Procedure 20.1. See Tex. R. App. P.

20.1. The trial court sustained this

contest on November 7, 2008. Dyer

eventually paid the appellate court costs and fees.

Discussion

Dyer appeals the trial court’s order

sustaining the district clerk’s contest to his affidavit of indigency in the

trial court proceeding. He contends that

his affidavit complies with the requirements of Rule 20.1, and thus the trial

court’s order denies him access to the courts and equal protection. [1] The general rule, with a few exceptions, is

that an appellant can only appeal from a final judgment. Lehmann v. Har-Con Corp. , 39 S.W.3d 191, 195 (Tex. 2001). A judgment is final for the purposes of

appeal if it disposes of all parties and all claims, except as necessary to

carry out the decree. Id.

An appellant may appeal an interlocutory order only if authorized by

statute. Bally Total Fitness Corp. v. Jackson , 53

S.W.3d 352, 352 (Tex. 2001). An

order sustaining a contest to an affidavit of indigency is an interlocutory

order not included in the list of orders made appealable by statute. See

Tex. Civ. Prac. & Rem. Code Ann.

§ 51.014(a) (Vernon 2008). Since

there is no final judgment in this case and no statutory authorization, we lack

subject-matter jurisdiction over this interlocutory appeal of the trial court’s

order sustaining the district clerk’s contest to Dyer’s affidavit of

indigency. See Aguilar v. Tex. La Fiesta Auto Sales LLC , No. 01-08-00653-CV,

2009 Tex. App, LEXIS 3883, at *3–4 (Tex. App.—Houston [1st Dist.] June 4, 2009, no pet.); Gonzales

v. Flores , No. 14-08-00991-CV, 2009 Tex. App. LEXIS 3790 , at *1–2 (Tex.

App.—Houston [14th Dist.] Feb. 26, 2009, no pet.).

On

November 23, 2009, we issued an order informing Dyer of our intent to dismiss

this appeal for want of jurisdiction unless within thirty days he files a response

demonstrating that we have jurisdiction over this appeal. See

Tex. R. App. P. 42.3(a). Dyer has filed no response.

Conclusion

The trial court’s order sustaining

the district clerk’s contest to Dyer’s affidavit of indigency is an

interlocutory order that is neither final nor appealable. We therefore dismiss his appeal for want of

jurisdiction.

Jane Bland

Justice

Panel consists of Chief Justice

Radack and Justices Bland and Massengale.

[1] Dyer mistakenly argues that the relevant rule with

which his affidavit of indigency for the trial court proceeding must comply is

Rule 20.1 of the Texas Rules of Appellate Procedure. This is the applicable rule for his affidavit

of indigency on appeal. Rule 145 of the

Texas Rules of Civil Procedure governs the requirements for an affidavit of

indigency in the trial court. See Tex.

R. Civ. P. 145.

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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