IN THE SUPREME COURT OF TEXAS
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No. 06-0382
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Michael David =
Springer,=20
Petitioner,
v.
Lisa Fergason Springer, Respondent
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On Petition for Review from =
the
Court of Appeals for the Tenth =
District of=20
Texas
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PER =
CURIAM
=20
Michael Springer=92s wife filed for divorce while he was =
incarcerated and=20
Springer sought to appeal the resulting judgment dividing marital =
property.=20
Springer timely filed a notice of appeal, but did not pay the filing fee =
or file=20
an affidavit of indigence =93with or before=94 the notice as Texas Rule =
of Appellate=20
Procedure 20.1(c)(1) requires. One month =
after filing=20
his notice of appeal, Springer filed an affidavit of indigence. Two =
months=20
later, the court of appeals notified Springer that his=20
filing fee was past due and his case would be dismissed if the fee was =
not paid=20
within ten days. Springer did not pay the fee. The court of appeals =
dismissed=20
Springer=92s appeal for failure to pay the fee or file an affidavit of =
indigence=20
=93with or before=94 the notice of appeal. We hold that the court of =
appeals erred=20
in dismissing Springer=92s appeal.
=20
We recently decided two cases similar to the one presented. In =
Higgins=20
v. Randall County Sheriff=92s Office, the court of appeals dismissed =
an=20
inmate=92s appeal for failure to file an affidavit of indigence =93with =
or before=94=20
the notice of appeal, although the affidavit was filed within the ten =
days the=20
court of appeals=92 order allowed to correct the error by paying the =
fee. 193 S.W.3d 898, 899-900 (Tex. 2006). Similarly, in =
Hood v.=20
Wal-Mart Stores, Inc., the court of appeals dismissed an appeal when =
the=20
appellant filed an affidavit of indigence not =93with or before=94 the =
notice of=20
appeal but within the ten-day period for paying the filing fee. 216 S.W.3d 829, 830 (Tex. 2007). We reversed those =
dismissals, noting that the affidavit of indigence is no longer a =
jurisdictional=20
requirement and holding that Rule 44.3 prohibits dismissal for formal =
defects or=20
irregularities in appellate procedure without first allowing the =
appellant a=20
reasonable time to correct the error. Id. at 830; =
Higgins,=20
193 S.W.3d at 899-900. Thus, failure to file =
an=20
affidavit of indigence =93with or before=94 a notice of appeal will not =
support=20
dismissal unless the appellant is given a reasonable time to correct the =
defect=20
and fails to do so.
=20
In this case, Springer=92s notice of appeal was initially =
defective because=20
it was unaccompanied by the filing fee or an affidavit of indigence as =
required=20
by Rule 20.1(c)(1). However, Springer =
corrected the=20
defect by filing his affidavit of indigence shortly thereafter; it was =
not even=20
necessary for the court of appeals to permit him additional reasonable =
time to=20
correct the defect. Accordingly, without hearing argument, we grant the =
petition=20
for review, reverse the court of appeals=92 judgment, and remand to that =
court for=20
further proceedings consistent with this opinion. See Tex. R. App. P. 59.1.
Opinion =
Delivered:=20
November 2, 2007