Challenging an Order on a Contest to an Affidavit of Indigency
Must an appellant who seeks to appeal a trial court's order sustaining a challenge to the appellant's affidavit of indigency file a separate notice of appeal? Answer: It depends on which court of appeals the appeal is in.
The San Antonio Court of Appeals has held that it is not necessary for an appellant to file a separate notice of appeal. However, in Basaldua v. Hadden, the court noted that its holding is at odds with the Corpus Christi Court of Appeals, the Texarkana Court of Appeals, and the Waco Court of Appeals--all of which require the filing of a separate notice of appeal. The San Antonio Court of Appeals joins Amarillo in concluding that no separate notice of appeal is required. This conflict in appellate decisions seems ripe for resolution by the Texas Supreme Court.
Although the court of appeals allowed Mr. Basaldua to challenge the order sustaining the challenge to his affidavit of indigency, the court upheld the trial court's order. Noting that it appeared Mr. Basaldua had the capacity to make more income, the court held that the trial court had not abused its discretion in sustaining the contest to the affidavit of indigence. The court's opinion may be found at this link.
