in the Interest of M.F.S., M.F.S. and A.F.S. ( 2018 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-18-00156-CV
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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
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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).
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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.
PER CURIAM
Before McKeithen, C.J., Kreger and Horton, JJ.
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