By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
Failure of court to enter written order
sustaining indigency contest results in free appeal transcript for appellant
(99-4-12)
On November 9, 1998, in an opinion the
publication of which was delayed for almost a year, the Dallas Court of Appeals
held that when the juvenile court orally sustained a challenge to the appellate
transcript indigency affidavit of appellant but failed, contrary to the
requirement of the Rules, to enter a written order within 10 days, the effect of
that omission was to overrule the challenge. Therefore, appellant is entitled to
a free transcript. Further, appellate review of such a trial court decision is
now by appeal rather than writ of mandamus.
99-4-12. B.J.M. v. State, 997 S.W.2d 626 (Tex.App.—Dallas 11/9/98)[Texas
Juvenile Law 322 (4th Edition 1996)].
Facts: B.J.M. wishes to appeal the trial court's order adjudicating him a child
engaged in delinquent conduct and committing him to the Texas Youth Commission.
On April 29, 1998, he timely filed a notice of appeal to invoke this Court's
jurisdiction. On the same date, his guardian ad litem timely filed an affidavit,
signed personally by her, asserting that B.J.M. was indigent and therefore
entitled to a free appellate record. [FN1] On the same day, the district clerk
filed a contest to the affidavit. The trial court conducted a hearing and
announced that it would sustain the contest, but no formal, written order
sustaining the contest was signed until May 29, 1998. Nor was there any order
extending the time beyond the ten-day limit for ruling on the contest. See
Tex.R.App. P. 20.1(i).
FN1. These documents were filed by this Court in cause number 05-98-00841- CV.
That cause was abated on September 4, 1998 pending the outcome of B.J.M.'s
petition for writ of mandamus filed in cause number 05-98-01343- CV.
B.J.M. filed a petition for writ of mandamus. In the petition, he argued that he
was entitled to a complete record for his appeal, without prepaying costs,
because: (1) the order sustaining the contest to the affidavit was untimely; (2)
his guardian ad litem had the legal authority to sign an affidavit on his
behalf; and (3) in any case, he filed an affidavit that he personally signed
within the original time limit for perfecting the appeal.
Held: Mandamus denied; proceedings converted to appeal; transcript ordered.
Opinion Text: Traditionally, mandamus in the court of appeals has been the
proper remedy to challenge a trial court's sustaining a contest to an affidavit
of inability to pay costs. See Allred v. Lowry, 597 S.W.2d 353, 354 n. 2
(Tex.1980). On October 15, 1998, however, and while this proceeding was pending
in this Court, the Texas Supreme Court held that mandamus would no longer lie
under such circumstances, because there was an adequate remedy on appeal under
the new Texas Rules of Appellate Procedure. See In re Arroyo, 988 S.W.2d 737,
passim (1998) (per curiam). Accordingly, to the extent that B.J.M. has filed a
petition for writ of mandamus to obtain the relief he requests, we deny the
petition.
We do not end there, however. As the supreme court explained the new procedure,
The court of appeals can and should, on motion or its own initiative, require
the clerk and the court reporter under Rules 34.5(c)(1) and 34.6(d),
respectively, to prepare and file the portions of the record necessary to review
an order sustaining a contest to an affidavit of indigence. This has been the
practice for obtaining the relevant record for mandamus review of such orders.
Arroyo, 988 S.W.2d at 739. The appendix to B.J.M.'s petition contains a
sufficient record to permit our review. Were we simply to deny B.J.M.'s petition
without more, we would compel B.J.M. to go to the effort, expense, and delay of
refiling the petition as a prerecord motion in the appeal. Such a refiling would
serve no useful purpose. The law does not require one to do a vain and useless
thing. See Mackey v. Lucey Prods. Corp., 150 Tex. 188, 239 S.W.2d 607, 608
(Tex.1951); Gilley v. Anthony, 404 S.W.2d 60, 64 (Tex.Civ.App.--Dallas 1966, no
writ). Therefore, in the interest of judicial economy and to avoid the futility
of B.J.M.'s refiling the same record we already have before us, we will treat
his petition for writ of mandamus as a prerecord motion in the appeal that B.J.M.
has already perfected, cause no. 05-98-00841-CV, styled B.J.M. v. The State of
Texas.
We now turn to the merits of B.J.M.'s complaint. It is undisputed that B.J.M.
filed his original affidavit of indigency on April 29, 1998, and that the trial
court did not rule upon the contest until May 29, 1998, without any signed order
extending the time to hear the contest. The order sustaining the contest was
therefore untimely. See Tex.R.App. P. 20.1(i)(2), (3). That the trial court
orally sustained the contest during a hearing on May 7, 1998, is of no effect;
an oral ruling on an affidavit of indigency is not sufficient to comply with the
requirements of the rules. Grossnickle v. Turner, 903 S.W.2d 362, 364 (Tex.App.--Texarkana
1995, orig. proceeding). Therefore, B.J.M. will be allowed to proceed without
advance payment of costs. See Tex.R.App. P. 20.1(i)(4). In light of our
disposition of B.J.M.'s first issue, it is not necessary to reach the remaining
issues.
We grant B.J.M. the relief he requests, and we direct the trial court to ensure
that the district clerk and the court reporter file a complete record, for
purposes of B.J.M.'s appeal on the merits in cause number 05-98-00841-CV.
Because the record is already long overdue and because B.J.M.'s liberty interest
is at stake, we direct the trial court to ensure that the record is filed with
the Clerk of this Court within thirty days of the date of this opinion.