James Johnson v. Municipal Court of the City of Sunrise Beach

• Court: Court of Appeals of Texas
• Decided: July 30, 2025
• Docket: 03-25-00322-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-25-00322-CV

James Johnson, Appellant

v.

Municipal Court of the City of Sunrise Beach, Appellee

FROM THE COUNTY COURT OF LLANO COUNTY NO. 03143, THE HONORABLE RON CUNNINGHAM, JUDGE PRESIDING

ORDER AND MEMORANDUM OPINION

PER CURIAM

James Johnson, a/k/a James Prescott Carter Johnson, appeals an “Order on

Motion To Set Aside Default Judgment and Motion For New Trial” finding that he is not

indigent. We will abate the appeal and remand this case to the county court.

In the underlying case the county court sat as an appellate court, reviewing a

determination that Johnson’s pet, which bit two people within two months, is a dangerous dog.

The case was referred to the county court after Johnson’s first attorney, his mother, was jailed for

contempt and moved to recuse the municipal court judge. Johnson filed in the county court a

“Statement of Inability to Afford Payment of Court Costs or an Appeal Bond,” reporting that his

monthly income from Veteran’s Administration disability payments is $3,300. His reported

assets include a house and a 2002 GMC 1500 truck. No evidence was attached to his Statement. The county court sent the parties notice of a hearing in the transferred case, but

Johnson and his attorney failed to appear. The county court signed a final order stating that

Johnson and his attorney were given more than 21 days’ notice of the hearing, that neither

appeared, and that the dangerous-dog determination was affirmed. Johnson filed a “Motion to

Set Aside Default Judgment and Motion for New Trial,” alleging that his attorney was unaware

of the hearing and never opened the notice of hearing sent to her by e-service.1 The county court

sent the parties notice of another hearing, which Johnson and his attorney attended, and signed

the “Order on Motion to Set Aside Default Judgment and Motion for New Trial” appealed here.

The order denied the motions; affirmed the dangerous-dog determination; set a $10,000 appeal

bond; and recited the county court’s findings, including that

• Defendant James Johnson appears solvent and well-supported by family with sufficient assets and resources to pursue an appeal without relying on funds from Llano County to do so;

• Defendant James Johnson has ample family resources to finance and perfect an appeal, including equity in his home and family support; and

• Defendant James Johnson failed to pay a jury fee to the Llano County Clerk.

Johnson’s second attorney supplemented the motion to set aside the default

judgment and motion for new trial with an affidavit from Johnson’s first attorney stating that she

offered to pay the City’s attorney’s fees and expenses incurred in obtaining the default judgment.

The county court declined to consider that untimely motion.2 Johnson then filed in this Court a

“Motion Challenging Trial Court’s TRCP 145 Finding Regarding Payment of Costs.” See Tex.

1 See Tex. R. Civ. P. 21a(b)(3) (stating that “[e]lectronic service is complete on transmission of the document to the serving party’s electronic filing service provider”). 2 See id. R. 329b(b) (allowing filing of amended motions for new trial before trial court overrules any of movant’s preceding motions). 2 R. Civ. P. 145(e)(2) (providing in relevant part that “[t]he court on its own may require the

declarant to prove the inability to afford costs when evidence comes before the court that the

declarant may be able to afford costs”), (g) (allowing declarant to challenge trial court’s order

issued under Rule 145).

Under Texas Rule of Civil Procedure 145, a party is exempt from paying court

costs if the party files a statement of inability to afford payment of court costs unless certain

procedural requirements have been met. Id. R. 145(f). First, “[t]he declarant must not be

required to pay costs without an oral evidentiary hearing” and must be given notice of the

hearing. Id. R. 145(f)(1). Additionally, any “order requiring the declarant to pay costs must be

supported by detailed findings that the declarant can afford to pay costs.” Id. R. 145(f)(2).

Further, any “order requiring the declarant to pay costs must state in conspicuous type: ‘You may

challenge this order by filing a motion in the court of appeals within 10 days after the date this

order is signed. See Texas Rule of Civil Procedure 145.’” Id. R. 145(f)(4).

Here, Johnson filed a “Statement of Inability to Afford Payment of Court Costs or

an Appeal Bond” as contemplated by Rule 145. See id. R. 145(b). But the record indicates that

the county court did not conduct an evidentiary hearing on the Statement, provide notice of a

hearing on the Statement before issuing the order setting the appeal bond, or issue an order with

an admonishment informing Johnson of his right to appeal the order and specifying the appellate-

filing deadline. See id. R. 145(f).

Thus, we abate this appeal and remand this case to the county court for the

requisite evidentiary hearing determining whether Johnson is unable to pay. See id.; Wilson v.

Ditech Fin., LLC, No. 03-21-00100-CV, 2021 WL 2385430, at *1 (Tex. App.—Austin June 11,

2021, no pet.) (per curiam) (mem. op.) (following similar procedure). The county court must

3 give the parties at least ten days’ notice of the hearing. After the hearing, the county court is

directed to enter an order stating one of the following: (1) that Johnson is required pay all the

court costs and the appeal bond, (2) that Johnson is required to pay the part of the court costs and

appeal bond that he can afford to pay, or (3) that Johnson is not required to pay court costs or the

appeal bond. If the county court orders Johnson to pay all or some of the court costs and the

appeal bond, the county court is further directed to include in its order detailed findings

supporting its ruling and the Rule 145(f)(4) admonishment. A reporter’s record of the hearing

shall be prepared and filed in the record of this appeal, and the county court shall prepare

a supplemental clerk’s record containing its order. The reporter’s record and supplemental

clerk’s record must be filed by September 2, 2025. The appeal will be reinstated when the

records are filed.

It is so ordered on July 30, 2025.

Before Chief Justice Byrne, Justices Crump and Ellis

Abated and Remanded

Filed: July 30, 2025