Zachariah Dorsett v. Archstone Memorial Heights

• Court: Court of Appeals of Texas
• Decided: June 28, 2012
• Docket: 01-10-00848-CV
• Status: Published

Opinion

Order issued June 28, 2012.

In The Court of Appeals For The First District of Texas

NO. 01-10-00848-CV ____________

ZACHARIAH DORSETT, Appellant

V.

ARCHSTONE MEMORIAL HEIGHTS, Appellee

On Appeal from County Civil Court at Law No. 1 Harris County, Texas Trial Court Cause No. 961349

MEMORANDUM ORDER

Appellee, Archstone Memorial Heights, brought a forcible entry and detainer

suit against appellant, Zachariah Dorsett. Judgment was rendered in favor of

appellee. Appellant appealed and filed an affidavit of inability to pay the costs of appeal. The trial court sustained the contest to appellant’s affidavit. Appellant

challenges the trial court’s order sustaining the contest.

We affirm.

Standard of Review and Governing Legal Principles

Texas Civil Practice and Remedies Code section 13.003 sets out the statutory

requirements that must be met for an appellant to obtain a free record on appeal.

TEX. CIV. PRAC. & REM. CODE ANN. § 13.003(a) (West 2002). Section 13.003

states, in pertinent part, that a trial court clerk and court reporter shall provide a

record for appeal without cost only if:

(1) an affidavit of inability to pay the cost of the appeal has been filed under the Texas Rules of Appellate Procedure; and (2) the trial judge finds: (A) the appeal is not frivolous; and (B) the statement of facts and the clerk’s transcript is needed to decide the issue presented by the appeal.

Id. Thus, to obtain a free record on appeal, an appellant must both file an affidavit

of indigence under the Rules of Appellate Procedure and request certain findings

from the trial court.

Affidavits of indigence are governed by Rule of Appellate Procedure 20.1.

TEX. R. APP. P. 20.1. Rule 20.1 allows a party to proceed on appeal without

2 advance payment of costs 1 if (1) the party files an affidavit of indigence in

compliance with the rule, (2) the indigence claim is either not contestable, is not

contested, or, if contested, the contest is not sustained by written order, and (3) the

party timely files a notice of appeal. See id. 20.1(a)(2).

Generally, the appellant must file the affidavit of indigence in the trial court

“with or before the notice of appeal.” Id. 20.1(c)(1). The affidavit must identify the

party filing the affidavit, state the amount of costs the party can pay, if any, and

present complete information about the party’s financial condition. See id. 20.1(b).

The trial court clerk, court reporter, or any interested party may file a contest

to the affidavit of indigence, but must do so within 10 days after the date the

affidavit is filed. Id. 20.1(e). Within 10 days after a contest is filed, the trial court

must either conduct a hearing or sign an order extending the time for the hearing no

more than 20 days from the date of the order. Id. 20.1(i)(2), (3).

At the hearing on the contest, the appellant bears the burden to prove his

indigence by a preponderance of the evidence. Higgins v. Randall Cnty. Sheriff’s

Office, 257 S.W.3d 684, 686 (Tex. 2008); see TEX. R. APP. P. 20.1(g); Arevalo v.

Millan, 983 S.W.2d 803, 804 (Tex. App.—Houston [1st Dist.] 1998, no pet.). The

party contesting the affidavit then has the burden to offer evidence to rebut what

1 Rule 20.1(n) defines “costs” as the filing fee and the charges for preparing the appellate record. TEX. R. APP. P. 20.1(n). 3 was established. See Griffin Indus., Inc. v. Hon. Thirteenth Court of Appeals, 934

S.W.2d 349, 352 (Tex. 1996). The test for determining indigence is as follows:

“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?” In re

C.H.C., 331 S.W.3d 426, 429 (Tex. 2011).

Unless, within the period set for the hearing, the trial court signs an order

sustaining the contest, 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(i)(4). When, as in this case, the trial court sustains the contest to the

appellant’s affidavit, the appellant may obtain the record pertaining to the trial

court’s ruling and may challenge that ruling as part of his appeal. See In re Arroyo,

988 S.W.2d 737, 738–39 (Tex. 1998).

We review the trial court’s order under an abuse of discretion standard.

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

The trial court abuses its discretion if it acts without reference to any guiding rules

or principles or in an arbitrary or unreasonable manner. Id. Rule 20.1 is to be

interpreted “liberally in favor of preserving appellate rights.” See Higgins, 257

S.W.3d at 686.

4 Analysis

Appellant challenges the trial court’s order sustaining a contest to his

affidavit of indigence and ordering that he pay the costs of his appeal.

Insofar as appellant challenges the trial court’s order with respect to the costs

of the appellate record, by failing to request or obtain the findings required by Civil

Practice and Remedies Code section 13.003, appellant has failed to meet the

statutory requirements for receiving a free record and has failed to preserve any

error upon which we could reverse the trial court’s order. See TEX. CIV. PRAC. &

REM. CODE ANN. § 13.003(a)(2); TEX. R. APP. P. 33.1; Schlapper v. Forest, 272

S.W.3d 676, 678 (Tex. App.—Austin 2008, pet. denied).

We consider appellant’s challenge insofar as it relates to the trial court’s

order that he pay the filing fee for his appeal. 2

The clerk’s record on appellant’s indigence claim reflects that appellant

timely filed an affidavit of indigence with his notice of appeal on September 29,

2010. See TEX. R. APP. P. 20.1(a)(2)(A), (c)(1). In his affidavit, appellant

addresses some of the factors required by Rule of Appellate Procedure 20.1(b). Id.

20.1(b). Appellant states, among other things, that he is unemployed and has no

source of income, has no spouse or dependents, owns no property, and has $25.00

cash and $75.00 in a bank account. Id. 20.1(b)(1)–(6). Appellant states that he was 2 See id. 5 not represented by an attorney in the trial court and that no attorney has agreed to

pay or advance his court costs. Id. 20.1(b)(10), (11). Appellant does not state the

nature or amount of his debts or monthly expenses, instead simply stating that “I

have transportation, housing, food, and other expenses that are greater than my

monthly income,” and does not state whether he could obtain a loan for court costs.3

Id. 20.1(b)(7)–(9).

The county clerk timely filed a contest to appellant’s affidavit, demanding

proof that appellant is indigent. 4 See TEX. R. APP. P. 20.1(e). On October 13, 2010,

the trial court timely sustained the county clerk’s contest. See id. 20.1(i)(4).

At the hearing on the contest, appellant testified that he has been unemployed

since July 2010; had been seeking full-time employment for about eight months

prior to that; that he is not receiving unemployment benefits; that he has no money

in his bank account, no assets, and no dependents; that he has monthly expenses of

3 There is a second affidavit of indigence in the clerk’s record, also signed by appellant on September 29, 2010, that contains recitations regarding various expenses. The second affidavit is not file-stamped. However, appellant testified to the amounts contained in the second affidavit of indigence at the hearing on October 12, 2010, and the record demonstrates that this information was considered by the trial court. 4 The record reflects that the court reporter and appellee may also have filed contests to appellant’s affidavit of indigence in the underlying trial court cause. These contests are not contained in the special clerk’s record on indigence, and may have been lost or destroyed. See TEX. R. APP. P. 34.5(e). However, because the record reflects that the existence of these documents would not affect our indigence determination in this matter, in the interest of conserving judicial resources and promoting judicial efficiency, we will not abate this case for a determination from the trial court regarding whether these documents have been lost or destroyed. 6 $870—$350 for rent paid to his grandfather, $200 for food and groceries, $150 for

transportation, $50 for hygiene items, $80 for books and entertainment, and $40 for

clothing; and that he has no ability to obtain a loan. Appellant testified that he has

not paid the $350 rent to his grandfather since July 2010, although he continues to

live with his grandfather. Appellant testified that his only methods of transportation

are public transportation or riding his grandfather’s motorcycle. He testified that he

had a legal aid lawyer but that he “chose to represent” himself. Appellant testified

that he had spent about 500 hours volunteering in 2010. He also testified that

during the week preceding the filing of his affidavit, he traveled to New Mexico and

spent close to $100 at various restaurants and businesses in New Mexico.

At the conclusion of the hearing, the trial court found that appellant has

“avenues to pay for some of [his] expenses[,] had avenues to have counsel[,] had

avenues to get . . . unemployment [benefits,]” and was “cho[o]sing to work in the

volunteer area as opposed to . . . an area that provides compensation.” The trial

court denied appellant’s request to proceed as indigent. The trial court timely

signed an order sustaining the county clerk’s contest and stating that appellant “will

be required to proceed with his appeal with advance payment of all associated

costs.” See id. 20.1(i)(2)(A), (i)(4).

7 The record in this case shows that appellant testified that in the week

preceding the filing of his affidavit, he spent close to $100 traveling to New Mexico

and visiting various restaurants and businesses in New Mexico. The record also

shows that appellant testified that apart from basic living costs, he has $80 per

month available that he currently uses for discretionary expenses. The record

further shows that appellant testified that he had spent 500 hours volunteering in

2010, as opposed to using that time to pursue compensated employment. From this

testimony, the trial court could have reasonably concluded, as it did, that appellant

is able to pay the $175 filing fee for his appeal. See In re C.H.C., 331 S.W.3d at

429 (considering whether record, in whole, shows by preponderance that “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”); see also TEX. GOV’T CODE

ANN. § 51.207 (West Supp. 2011), § 51.941(a) (West 2005), § 101.041 (West Supp.

2011) (listing fees in court of appeals); Order Regarding Fees Charged in Civil

Cases in the Supreme Court and the Courts of Appeals and Before the Judicial

Panel on Multidistrict Litigation, Misc. Docket No. 07-9138 (Tex. Aug. 28, 2007),

reprinted in TEX. R. APP. P. app. A § B(1) (listing fees in court of appeals). We

cannot conclude that the trial court abused its discretion by finding that appellant is

able to pay the filing fee. See In re C.H.C., 331 S.W.3d at 429.

8 In sum, we conclude that the trial court did not abuse its discretion by

sustaining the contest to appellant’s indigence claim. Accordingly, we affirm the

trial court’s order.

Because appellant has not established indigence, it is ORDERED that

appellant pay the filing fee to this Court no later than 10 days from the date of this

order, or the appeal will be dismissed. See TEX. R. APP. P. 5 (requiring payment of

fees in civil cases unless indigent); 42.3 (allowing involuntary dismissal). It is

further ORDERED that appellant file with this court, no later than 15 days from

the date of this order, proof that he has paid, or has made arrangements to pay, the

fees for preparing the clerk’s and reporter’s records. See TEX. R. APP. P. 34.5,

34.6(b), 37.3.

Furthermore, due to the age of this appeal, the Court will not grant motions to

extend the deadlines in this case absent extraordinary circumstances. See TEX. R.

APP. P. 35.3(c), 38.6(d).

PER CURIAM

Panel consists of Justices Higley, Sharp, and Huddle.