ACCEPTED
03-15-00107-CV
4404588
THIRD COURT OF APPEALS
AUSTIN, TEXAS
3/6/2015 2:57:19 PM
JEFFREY D. KYLE
CLERK
NO. 03-15-00107-CV
__________________________________________________________________
FILED IN
IN THE THIRD COURT OF APPEALS 3rd COURT OF APPEALS AUSTIN, TEXAS
AUSTIN, TEXAS
3/6/2015 2:57:19 PM
__________________________________________________________________
JEFFREY D. KYLE
Clerk
SUZANNA ECKCHUM
Appellant,
v.
THE STATE OF TEXAS FOR THE PROTECTION OF HAL KETCHUM Appellee.
__________________________________________________________________
ON APPEAL FROM THE COUNTY COURT AT LAW NO. 2 OF COMAL COUNTY CAUSE NO. C2014-1690C
__________________________________________________________________
APPELLANT’S MOTION TO CHALLENGE TRIAL COURT ORDER SUSTAINING CONTEST TO APPELLANT’S AFFIDAVIT OF INDIGENCY
__________________________________________________________________
Mysha Lubke BAKER BOTTS L.L.P. State Bar No. 24083423 98 San Jacinto Blvd., Suite 1500 Austin, TX 78701 (512) 322-2500 (512) 322-2501 (fax) mysha.lubke@bakerbotts.com
ATTORNEY FOR APPELLANT
Active 18038052.1 1
TO THE HONORABLE THIRD COURT OF APPEALS:
Appellant Suzanna Eckchum1 respectfully requests that this Court
deny Court Reporter Dana Dance’s Contest to the Affidavit of Indigency Filed by
Suzanna Eckchum pursuant to Rule 20.1(j) of the Texas Rules of Appellate
Procedure. The trial court erred in sustaining the court reporter’s contest to
Appellant’s affidavit of indigence for two reasons. First, Appellant’s completed
and verified affidavit shows that she is unemployed, disabled, and receives public
benefits, which is all sufficient to prove indigence. Second, Appellant had no
notice of the hearing on the contest and thus had no opportunity to offer testimony
about the contents of her affidavit as proof of indigence. For these reasons,
Appellant respectfully requests that this Court grant Appellant’s motion to
challenge, deny the court reporter’s contest, and order court reporter Dana Dance
to prepare the reporter’s record for appeal at no cost to the indigent appellant.
Appellant has requested that the trial court reconsider its order sustaining the
contest.
1 Respondent respectfully notes that the style of the case in the trial court order listed her name incorrectly, and the name should be listed as Suzanna Eckchum.
Active 18038052.1 2
BACKGROUND FACTS AND PROCEDURE
After a hearing on January 16, 2015, the trial court entered a Stalking
Protective Order against Appellant on January 22, 2015. I CR 18-21. Proceeding
pro se2, Appellant timely filed her first Notice of Appeal on February 12, 2015.3
Id. at 24. On that same date, Appellant filed an “Affidavit of Indigency,” in which
she swore that she receives government entitlements, has been unemployed since
2010, has no property of any value, and cannot pay costs. Id. at 22-23. This is the
affidavit that Court Reporter Dana Dance timely contested on February 23, 2015.
The trial court set and held a hearing on the contest on February 25, 2015 at 1:30
p.m. C.R. Supp. I. Notice for this hearing was sent by counsel for Court Reporter
Dana Dance by certified mail, postmarked February 23, 2015. Id. Delivery of the
notice was not attempted until February 25, 2015 4—after the hearing. Ex. A.
2 Appellant had trial counsel, but represented herself after trial and before engaging appellate counsel on February 26, 2015 after qualifying for pro bono appellate representation, without contingent fee, by a volunteer attorney through the Third Court of Appeals Pro Bono Program. Counsel has not agreed to pay or advance any costs. 3 Appellant filed multiple documents entitled “Notice of Appeal,” but each appears to be different. The Notice of Appeal filed on February 17, 2015 also included a request for a court transcript. I CR 25. And the Notice of Appeal filed on February 19, 2015 also included a request for a new trial. Id. at 26. 4 Appellant received the letter sent via First Class Mail as well as the notice of a Certified mailing on the evening of February 26, 2015. However, accepting that the U.S. postal service attempted to deliver at least the certified letter on February 25, 2015, Appellant refers to that date as the date of receipt.
Active 18038052.1 3
ARGUMENT AND AUTHORITIES
The trial court abused its discretion in granting the contest as the
evidence before the court proved Appellant’s indigence. The trial court also failed
to give Appellant due process in entering an order sustaining Court Reporter Dana
Dance’s Contest to the Affidavit of Indigency filed by Suzanna Eckchum without
notice of the hearing and without permitting Appellant the opportunity to be heard.
I. The Trial Court Record As A Whole Shows Appellant Is Indigent and Unable to Pay Costs Even without Appellant’s appearance at the hearing on the contest,
evidence of Appellant’s indigence was properly before the trial court under Rule
20.1. “The purpose of Rule 20.1 is to permit parties to proceed without paying
filing fees if they are unable to do so, and we have long interpreted the Rules of
Appellate Procedure liberally in favor of preserving appellate rights.” Higgins v.
Randall County Sheriff's Office, 257 S.W.3d 684, 688 (Tex. 2008) “The test for
determining indigence is straightforward: Does the record as a whole show by a
preponderance of the evidence that the applicant would be unable to pay the costs,
or a part thereof, or give security therefor, if he really wanted to and made a good-
faith effort to do so?” Id. at 686. Moreover, “[t]he fact that any individual is
dependent upon the charity of the public afforded through the various welfare
programs is, by itself, prima facie evidence that the person is financially unable to
Active 18038052.1 4 pay the court costs or give security therefor.” Griffin Indus., Inc. v. Honorable
Thirteenth Court of Appeals, 934 S.W.2d 349, 351 (Tex. 1996) (quoting Goffney v.
Lowry, 554 S.W.2d 157, 159-60 (Tex. 1977). 5
Yet the court reporter did not contest the accuracy or contents of the
affidavit showing prima facie evidence of Appellant’s indigence. The court
reporter did not contest the indigent Appellant’s dependence on public welfare
programs such as SNAP food benefits listed in her affidavit or that her expenses
exceeded income sourced solely from government benefits. C.R. Supp. I. She
only contested the completeness of Appellant’s affidavit specifically with regards
to her income, personal property, and cash. See id. But an indigent appellant is
not required to attach any documents to the affidavit or address every factor in
Rule 20.1(b) because “[s]atisfaction of the indigence rules should be liberally
construed in favor of the right to appellate review.” Moreno v. Perez, 363 S.W.3d
725, 743 (Tex. App.—Houston [1st Dist.] 2011, no pet.); see also In re C.H.C.,
331 S.W.3d 426, 430 (Tex. 2011) (taking as true the allegations in an affidavit of
indigence although the indigent appellant did not attach any documents to her
affidavit or address every factor in Rule 20.1(b), but did swear that she had a
negative cash flow and no investments or cash to help pay for a record).
5 The Texas Supreme Court has declined to rule on whether this standard is applicable in appellate courts under Tex. R. App. P. 20.1 as it is in trial courts under Tex. R. Civ. P. 145. In re C.H.C., 331 S.W.3d 426, 430 n.7 (Tex. 2011). Active 18038052.1 5
Moreover, Appellant’s affidavit was complete and indicated that she
would not be able to afford the costs of appeal. As to personal property and cash,
Appellant left blank the lines for financial assets, other property, and real estate
because she has none of these items. Evidence before the trial court showed that
Appellant rents an RV situated on a local ranch. She owns no property, so it
follows that she would have nothing to report for real estate and the like, and those
lines would be blank. Similarly, as to income, Appellant left blank the boxes that
did not apply to her. She has been unemployed since 2010, so it follows that she
would not have anything to provide in the spaces for “wages,” “job title,”
“employer,” “2nd job,” and the like. She provided the amount of income she
receives from government benefits, and her affidavit was complete and complied
with Rule 20.1. To suggest otherwise is to hold that an indigent Appellant must
pay costs of appeal if she fails to mark each available space with a “0” or
strikethrough. Such an elevation of form over substance is something the Texas
Supreme Court has admonished is particularly inappropriate when assessing
indigence. Higgins, 257 S.W.3d at 688–89. Thus, this Court should deny the court
reporter’s contest because the trial court abused its discretion in sustaining the
contest.
Active 18038052.1 6
II. The Hearing on Contest was Held with No Notice to Appellant Appellant had no notice of any hearing on the court reporter’s contest
to her affidavit of indigence. After a contest to an affidavit is filed, “the trial court
must set a hearing and notify the parties and the appropriate court reporter of the
setting.” Tex. R. App. 20.1(i)(1) (emphasis added); Kastner v. Texas Bd. of Law
Examiners, 03-10-00355-CV, 2011 WL 3659146, at *1 (Tex. App.—Austin Aug.
18, 2011, no pet.) (“[T]he trial court must provide notice and set a hearing to
determine whether the party is indigent.”). While it is true that a rebuttable
presumption exists that if notice is properly addressed and mailed, that it was
received by the addressee, In re M.A.H., 98 S.W.3d 745, 748 (Tex. App.—Waco
2003, no pet.), Appellant did not receive notice of this hearing on the contest until
after the contest occurred.
The notices sent regarding the contest prove that they were not sent in
time to provide the indigent Appellant with actual notice of the hearing and rebut
any presumption otherwise. Appellant received two mailings from counsel for
Dana Dance both containing identical correspondence: a cover letter dated
February 20, 2015 enclosing (1) the contest, (2) a motion to inspect Appellant’s
home and tax returns going back eight years, and (3) a motion to set with notice of
the setting. C.R. Supp. I; Ex. A. The Notice of Setting was signed by the Civil
District Court Coordinator on February 23, 2015 setting a hearing for two days
Active 18038052.1 7 later on February 25, 2015. Id. Although the cover letter attaching the contest,
motions, and notice was dated February 20, 2015, it contains the date and time of
the hearing—a setting that was not obtained until February 23, 2015. Thus, the
cover letter, contest, motions, and notice could not have been sent at any time
before February 23, 2015. This is so despite counsel for Dana Dance’s
certifications on each motion that the motions were served on Appellant on
February 20, 2015. That cannot be so especially considering that the postmarked
date on each envelope received by Appellant was not stamped until the following
Monday, February 23, 2015. Ex. A. Further, the envelope of the certified mailing
shows that the postal service did not attempt delivery until February 25, 2015—the
day that the hearing was set. Id. Thus, Appellant had no notice of a hearing on the
contest.
It is well established that procedural due process requires notice and a
hearing. City of Houston v. Fore, 412 S.W.2d 35, 37 (Tex. 1967). Yet, the lack of
notice of a hearing as to this contest in preparation for an appeal has resulted in the
possibility of excluding Appellant from the courts, when “[c]ourts should be open
to all, including those who cannot afford the costs of admission.” In re C.H.C.,
331 S.W.3d at 429. For these reasons, the Court should deny the contest to the
affidavit of indigence and order Court Reporter Dana Dance to prepare the
reporter’s record. Appellant has provided additional evidence to support her
Active 18038052.1 8
“Affidavit of Indigency” which she was not permitted to provide to the trial court
in the attached affidavit and exhibits.
CONCLUSION
For the above reasons, Appellant respectfully requests to be allowed
to proceed with her appeal without payment of costs, including requiring that the
court reporter prepare the appellate record without payment.
Respectfully submitted,
By: _/s/ Mysha Lubke
Mysha Lubke State Bar No. 24083423 mysha.lubke@bakerbotts.com BAKER BOTTS L.L.P. 98 San Jacinto Blvd., Suite 1500 Austin, TX 78701 Telephone: (512) 322-2500 Facsimile: (512) 322-2501
ATTORNEY FOR APPELLANT SUZANNA ECKCHUM
Active 18038052.1 9
CERTIFICATE OF CONFERENCE
I hereby certify that counsel for Appellant Suzanna Eckchum conferred with Josh Presley, Counsel for the State of Texas for the Protection of Hal Ketchum on March 5, 2015 and determined that the State of Texas opposes this motion at this time.
/ s / Mysha Lubke Mysha Lubke
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing has been served by fax on this 5th day of March, 2015:
Counsel for the State of Texas for the Protection of Hal Ketchum: The Honorable Jennifer A. Tharp Comal County Criminal District Attorney 150 North Seguin, Suite 370 New Braunfels, Texas 78130 fax: 830-608-2008
Counsel for Court Reporter Dana Dance:
James S. Bettersworth The Bettersworth Law Firm 110 W. Faust Street New Braunfels, Texas 78130 fax: 830-626-1414
/ s / Mysha Lubke Mysha Lubke
Active 18038052.1 10
NO. 03-15-00107-CV
IN THE THIRD COURT OF APPEALS AUSTIN, TEXAS
SUZANNA ECKCHUM
Appellant,
v.
THE STATE OF TEXAS FOR THE PROTECTION OF HAL KETCHUM Appellee.
ON APPEAL FROM THE COUNTY COURT AT LA WNO. 2 OF COMAL COUNTY CAUSE NO. C2014-1690C
STATE OF TEXAS § §
COUNTY OF TRAVIS §
1. My name is Suzanna Eckchum, and I am the Appellant in this case. I am over 18 years of age, of sound mind, and capable of making this affidavit. The facts stated in this affidavit are within my personal knowledge and are true and correct.
2. I received first-class mail addressed from the Bettersworth Law Firm on February 26, 2015. On that same date, I received a notice of a certified mailing being held at the post office for pick-up. Exhibit A to this affidavit is a true and correct copy of the envelopes I received on that date.
3. My only source of income is government assistance. I receive Social Security benefits due to a disability. I also receive SNAP benefits to cover the costs of food monthly. Exhibit B is documentation from the Texas Health and Human Services Commission regarding my Medicare, SNAP Food Benefits, and Social Security benefits. Exhibit C is my 2014 Form SSA-1099 Social Security Benefit Statement.
4. I receive these government benefits via a debit card provided by the government which also allows me to charge expenses on the same card.
5. Because my income is provided on a debit card not tied to a bank account, I do not use any bank accounts. I keep a bank account open, but have no funds on deposit.
Active 18060973. I 6. In addition to government assistance for income, I rely on government assistance for healthcare expenses. I receive both Medicare and Medicaid. Exhibit D to this affidavit is a true and correct copy of my Medicaid card.
7. I am receiving pro bono legal assistance with my appeal and my appellate attorney has not agreed to advance costs of appeal. There is no contingent fee.
8. I am unemployed, but have pursued work as a photojournalist for decades. I am also a radio host at a non-profit radio station which is an unpaid position. I am a singer-songwriter, but due to my disability-multiple sclerosis-I have not been able to earn any money from my music since before 2010.
9. I own a 1993 Honda Accord LX that I purchased in 2008 for $1,5 00. It is in poor condition, and I cannot afford to repair it. Because it is my only source of transportation to doctors appointments and in seeking employment, I cannot sell it. There is very limited and umeliable public transportation in Wimberley, Texas that cannot transport me to my doctor's appointments in Northwest Austin, Texas.
I 0. I own no other property of any value and live in a rented motor home.
11. I owe tens of thousands of dollars of debf and cannot obtain a loan for court costs.
12. Because I am unemployed, rely on government assistance, am indebted, poor, and struggling, I cannot afford the costs of appeal, including the cost of a court reporter's record.
I verify that the statements made in this affidavit are true and correct.
~~ fiant -A
ccic:A~
BEFORE me, Melissa V. De Pagter, Notary Public, on this day personally appeared Suzanna Eckchum, known to me through personal knowledge to be the person whose name is subscribed to the foregoing instrument .
SUBSCRIBED AND SWORN TO BEFORE ME, on March 6, 2015.
NOTARY PUBLIC, STATE OF TEXAS
Me1, ~.sl\ v· w f~.f.-4,, Printed Name
My commission Expires: t)/ ~ </ }o(l Active 18060973. I 2
EXHIBIT A
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Il11II11l 11111!'! I! Ii! I!l •'11 •i llj1l1l11•'l"'··11' '"1111 lilll·' Suzanna [.ckchum PO Box 476 'Nirr~berley TX 78676-0476
7013 3020 0002 0978 9193
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EXHIBIT B
Form TF0001 August2014
HHSC - MIDLAND PO BOX 14900 MIDLAND TX 79711-4900 M\TEXAS k...,.. .• · Health and Human -..,( Services Commi:>sion
Date: 02/11/2015 Need help?
Case Number:
Call 2-1-1 or 1-877-541-7905 If you have a hearing or speech disability, call 7-1-1 or any relay service.
All numbers are free to call.
SUZANNE ECKCHUM PO BOX476 WIMBERLEY TX 78676-0476
Notice about your case: Medicare Savin Who is in a Medicare Savings Program Name EOG Number and Benefit Date 12/01 /2014 -
Suzanne Eckchum C-QMB Ongoing
Factswe have a b OU t vour case:
Money coming into your home (income)
Monthly amount
Where the money before taxes Month Person who gets the money Type of money comes from (gross)
March 2015 Suzanne Eckchum Unearned Income RSDI $ 766.00
SNAP F.ood Benefits EOG number: 604200638
Who gets SNAP Food Benefits Name Date Monthly Amount
Suzanne Eckchum 03/01 /2015 - 02/29/2016 $ 194.00
2221
Page 1 of 3
Form TF0001 August2014
Fact swe have a bOU t vour case:
Money coming into your home (income)
Monthly amount
Where the money before taxes Month Person who gets the money Type of money comes from (gross)
March 2015 Suzanne Eckchum Unearned Income RSDI $ 766.00
Costs that lower your income (deductions)
Month Type of cost Cost Deduction
March 2015 Shelter $ 938.00 $ 632.50
Page 2 of 3 2222
EXHIBIT C
1993-261-00
LIFTTO OPEN CU1263424-11A61263800 ,
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2014"- ShoWs the fut.al am.omit
FORM SSA-1099 - SOCIAL SECURITY BENEFIT STATEMENT 1\Il10UilL ill DOX '±.
201 4 • PART OF YOUR SOCIAL SECURITY BENEFITS SHOWN IN BOX 5 MAY BE TAXABLE INCOME.
•SEE THE REVERSE FOR MORE INFORMATION.
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SUZANNE ECKCHUM .
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1--~~~~~~~~~~~~~....--~~~~~~~~~~~~---l,....----------------.-------------- ~ Box 3. Benefits Paid in 2014 Box 4. Benefits Repaid to SSA in 2014 ii:
$9,!f'47.60 NONE ~ "'
DESCRIPTION OF AMOUNT IN BOX 3 DESCRIPTION OF AMOUNT IN BOX 4 Paid by check or direct deposit $9,572.10 NONE Medicare Part B premiums deducted from your benefits $419.60 Total Additions $9,991.70 Subtract Non-taxable payments $944.10 Benefits for 2014 $9,047.60
Box 6. Voluntary Federal Income Tax Withheld
NONE
Box 7. Address
SUZANNE ECKCHUM POBOX476 WIMBERLEY TX 78676-0476
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Box 8. Claim Number (Use this number if you need to contact SSA.) t ~ § "'"
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EXHIBIT D ~Your Te.ma Benefits ..r Health and Human Sesvica Commbsion QM8
M11dicaid ID Card
M•mb..-Name: SUZANNA ECKCHUM ' Mo<n1>or10 1 n1d .101:
. _ I0<(8GUOJ Olllo =<I sont: 610258 11123/12 RllalN: 610084 1WCNt DRTXPROO RxGRP: MEDICAID