In this аppeal we determine whether a challenge to a litigant’s claim of indigence can be asserted after the 10-day deadline set forth in Texas Rule of Appellate Procedurе 20.1. After a custody dispute in the trial court, a mother and her husband filed an affidavit of indigence to allow them to appeal without advance payment of costs. Twenty-four days after the dеadline for contesting the affidavit of indigence, the
The underlying lawsuit affects the custody of two of Petitioner Diana L. Morris’s daughters, ages 15 and 9. The trial court appointed Morris’s parents, respondents Juan and Margaritа Aguilar, sole joint managing conservators of the older daughter and granted them visitation rights to the younger daughter. Morris is married to the father of the younger daughter. The court appointed Diana Morris and Phillip Perez possessory conservators of the older daughter, and the Morrises joint managing conservators of the younger daughter.
An attorney represented Morris and her husband in the trial court. After the court issued its final order, the Morrises timely filed an affidavit of indigence and a notice of appeal. The court reporter filed a contest to the affidavit 24 days after the 10-day deadline.
Texas Rule of Appellate Procedure 20.1(f) states:
Unless a contest is timely filed, no hearing will be conducted, the affidavit’s allegations will be deemed true, and the party will be allowed to proceed without advance payment of costs.
TEX. R. APP. P. 20.1(f). The court of appeals concluded that because Morris did not object in the trial court to the late filing of the reporter’s contest, “thus giving the court the opportunity to consider and correct any timeliness-related errors, [Morris] has not preserved any еrror related to the untimely contest.”
The Aguilars argue that Rule 20.1(e)’s 10-day deadline for filing a contest can be extended by the trial court under Texas Rule of Civil Procedure 5 and Texas Rule of Appellate Procedure 2, and should be extended when a court reporter has no actual notice of the filing of an affidavit of indigence within the time to contest it.
When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specifiеd time, the court for cause shown may, at any time in its discretion^] ... upon motion permit the act to be done after the expiration of the specified period where good causе is shown for the failure to act.
Tex.R. Civ. P. 5 (emphasis added). By its own terms, Rule 5 only applies to deadlines in the Rules of Civil Procedure. Id. The Rules of Appellate Procedure prescribe the deаdline for contesting an affidavit of indigence. Tex.R.App. P. 20.1(e) (establishing 10-day deadline to contest an affidavit of indigence). Texas Rule of Appellate Procedure 2 states in pertinent part:
On a party’s motion or on its own initiative an appellate court may — to expedite a decision or for other good cause — suspend a rule’s operation in a partiсular case and order a different procedure....
Tex.R.App. P. 2. Although this rule authorizes an appellate court to suspend the deadline for contesting an affidavit of indigence, the rulе requires good cause. Lack of actual notice in this context to a court reporter of the filing of an affidavit of indigence is not good cause in light of Rule 20.1.
Former Texas Rule of Appellate Procedure 40(a)(3)(B) provided:
The appellant or his attorney shall give notice of the filing of the affidavit [of indigence] ... to the court reporter of the court where the case was tried within two days after the filing; otherwise, he shall not be entitled to prosecute the appeal without paying the costs or giving security therefor.
Former Tex.R.App. P. 40(a)(3)(B), 49 Tex. B.J. 565 (1986) (reрealed 1997). See Jones v. Stayman,
*172 If the affidavit of indigence is filed with the trial court clerk , the clerk must promptly send a copy of the affidavit to the appropriate court reporter.
Tex.R.App. P. 20.1(d)(1). The change was made because it is much easier for notice to be given to a court reporter by the clerk (with whom the reporter has a working relationship) than by an indigent party (who is likely to be pro se and unfamiliar with the courthouse). The clerk’s failure to comply with the rule is not grounds for denying an indigent appellant the benefit of Rules 20.1(e)(f). See Burgess v. Feghhi,
Texas Rule of Appellate Procedure 20.1(f) requires that when there is no timely contest to an affidavit of indigence, a party must be allowed to proceed on appeal without advance payment of costs. Tex.R.App. P. 20.1(f); Higgins II,
Because no contest was timely filed, Morris is entitled to proceed on appeal without advance payment of costs. Accordingly, without hearing oral argument, Tex.R.App. P. 59.1, we grant Morris’s petition for review, reverse the judgment of the court of appeals, and remand this proceeding to the court of appeals to consider the merits of the Morrises’ appeal without advance payment of costs.
Notes
. See Tex.R.App. P. 20.1(e) (“The clerk, the cоurt reporter, the court recorder, or any parly may challenge an affidavit ... by filing ... a contest ... within 10 days after the date when the affidavit was filed if the affidavit was filed in the trial court.’’).
. We held in In re C.H.C. that an appellant is entitled to proceed without advance payment of costs if there is no challenge to her affidavit of indigence.
.One purpose of preserving еrror by raising the issue in the trial court is to promote judicial efficiency by allowing the trial court the opportunity to correct its error. In re C.O.S.,
. Construction of statutes and rules are questions of law, which we review de novo. See In re Christus Spohn Hosp. Kleberg,
. The court of appeals concluded that the trial court did not err in finding that Morris was not indigent because she and her husband "included in their bills several non-necessities,” namely, the truck Morris's husband used in his work, which was the couple's only vehicle, and "items that they find useful but that are not truly necessities, largely those related to [Morris's] husband’s deafness.”