in the Interest of M.F.S., M.F.S. and A.F.S.

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-18-00156-CV ____________________

IN THE INTEREST OF M.F.S., M.F.S. AND A.F.S. _______________________________________________________ ______________

On Appeal from the 418th District Court Montgomery County, Texas Trial Cause No. 17-03-03917-CV ________________________________________________________ _____________

ORDER

Appellants challenge the trial court’s order granting the court reporter’s

contest to appellants’ statements of inability to afford payment of costs. See Tex. R.

Civ. P. 145(g). The declarations that were admitted into evidence at the hearing

reveal no non-exempt assets. Appellants’ combined income is $1,400 per month and

their combined expenses are $1,250 per month. They receive no need-based public

benefits. They owe $50,000 in attorney’s fees and appellate counsel is representing

appellants pro bono. The trial court found that appellants failed to meet their burden

to prove their inability to pay costs. See Tex. R. Civ. P. 145(f)(5).

1 We review the trial court’s order for abuse of discretion and will affirm the

order unless the record reflects that the trial court acted in an arbitrary and

unreasonable manner or without reference to any guiding rules or principles. See In

re A.L.V.Z., 352 S.W.3d 568, 570 (Tex. App.—Dallas 2011, no pet.); White v.

Bayless, 40 S.W.3d 574, 576 (Tex. App.—San Antonio 2001, pet. denied). The

central inquiry under rule 145 “is not merely whether a person can pay costs, but

whether the person can afford to pay costs” and still pay for “basic essentials, like

housing or food.” See Tex. R. Civ. P. 145, cmt.

The record shows appellants’ monthly income exceeds their living expenses

and there is no evidence in the record regarding the estimated cost for the reporter’s

record. Without knowing the reporter’s fee, we are unable to determine what effect

payment of that fee would have on appellants’ ability to meet their basic needs

considering the $150 they have left each month after paying their living expenses.

See In re J.S., No. 05-17-00341-CV, 2017 WL 455406, at *2 (Tex. App.—Dallas

Apr. 29, 2017, no pet.) (mem. op.). Based on the record before us, we hold that the

trial court did not abuse its discretion by sustaining the court reporter’s challenge to

the appellants’ statements of inability to pay costs. We affirm the trial court’s order.

ORDER ENTERED July 25, 2018.

Before McKeithen, C.J., Kreger and Horton, JJ.