Suzanna Eckchum A/K/A Susan Eckhert v. State ( 2015 )

ACCEPTED
03-15-00107-CV
5540254
THIRD COURT OF APPEALS
AUSTIN, TEXAS
6/4/2015 9:48:08 AM
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
6/4/2015 9:48:08 AM
__________________________________________________________________
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 SUZANNA ECKCHUM’S MOTION FOR REHEARING ON
COSTS ASSESSED ON CONSOLIDATION
__________________________________________________________________
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 19410762.1 1
TO THE HONORABLE THIRD COURT OF APPEALS:
Appellant Suzanna Eckchum moves for rehearing of the Court’s May
21, 2015 Judgment ordering appellant to pay all costs relating to this appeal, both
in this Court and the court below. Appellant respectfully requests that this Court
grant this motion for rehearing, withdraw the judgment rendered on May 21, 2015,
and render a new judgment that assesses no costs because Ms. Eckchum is
indigent.
ISSUE PRESENTED FOR REVIEW
The only issue presented for the Court’s review is whether costs
should be assessed against Appellant who is indigent.
ARGUMENT
When the Court granted Appellant’s motion to consolidate this appeal
with cause number 03-15-00270-CV and dismissed this cause number, the Court
also assessed costs against Appellant. While Tex. R. App. P 42.1(d) provides that
costs for dismissed appeals be taxed against the appellant, many courts have
declined to tax costs against indigent appellants on dismissal. In Interest of J.M.-
H., 04-15-00003-CV, 2015 WL 2124777, at *1 (Tex. App.—San Antonio May 6,
2015, no. pet. h.) (granting appellant’s motion to dismiss and ordering “that no
costs be assessed against appellant because he is indigent”); In re J.O., 04-14-
00516-CV, 2014 WL 5199539, at *1 (Tex. App.—San Antonio Oct. 15, 2014, no
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pet.) (same); Shabazz v. Etheridge, 07-14-00235-CV, 2014 WL 4055840, at *1
(Tex. App.—Amarillo Aug. 14, 2014, no pet.) (same); In re R.D., 08-04-00304-
CV, 2005 WL 82204, at *1 (Tex. App.—El Paso Jan. 13, 2005, no pet.) (making
no order regarding costs because appellant is indigent); see also Weather v.
Wheeler Coatings Asphalt, Inc., 03-00-00660-CV, 2001 WL 194277, at *1 (Tex.
App.—Austin Feb. 28, 2001, no pet.) (holding that because no party was indigent,
costs were taxed to the party incurring them in a judgment dismissing the case after
a settlement agreement);
Since filing her “Affidavit of Indigency” in the trial court along with
her notice of appeal,1 nothing in Ms. Eckchum’s financial status has changed such
that she is now able to pay any of the costs of appeal. See Tex. R. App. p. 20.1(m).
Further, the costs of this appeal are substantially the same as the costs of the appeal
for cause number 03-15-00270-CV into which this appeal was consolidated. Both
appeals stem from the same facts, involve the same parties, and require the same
records and filings on appeal. To require Ms. Eckchum to pay the costs of this
dismissed appeal is effectively requiring Ms. Eckchum to advance the costs of the
consolidated appeal although she is indigent. Though Ms. Eckchum’s affidavit of
indigence was initially contested, that contest was abandoned and/or overruled by
1
CR at 22-23. The clerk’s record was filed in this Court under this cause number on February
21, 2015.
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operation of law, the allegations in the affidavit are deemed true, and Ms. Eckchum
is allowed to proceed with her now-consolidated appeal without advance payment
of costs. Tex. R. App. P. 20.1(i)(4); Montalvo v. JP Morgan Chase Bank, N.A.,
375 S.W.3d 553, 554 (Tex. App.—Houston [14th Dist.] 2012, no pet.).
Therefore, because Ms. Eckchum filed an affidavit of indigence to
establish her inability to pay costs, she asks that no costs be assessed against her in
this dismissed cause number. In re L.R., 07-12-00303-CV, 2012 WL 3536787, at
*1 (Tex. App.—Amarillo Aug. 16, 2012, no pet.) (granting appellant’s request to
dismiss the appeal and holding that “[a]ppellant timely filed an affidavit of
indigency, so costs are not assessed against appellant.”).
PRAYER FOR RELIEF
Appellant respectfully requests that this Court grant this motion for
rehearing, withdraw the judgment rendered on May 21, 2015, and render a new
judgment assessing no costs because Ms. Eckchum is indigent.
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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 19410762.1 5
CERTIFICATE OF COMPLIANCE
As required by Texas Rule of Appellate Procedure 9.4(i), I certify that this
motion for rehearing contains 516 words, excluding the parts of the motion
exempted by Rule 9.4(i)(1).
/ s / Mysha Lubke
Mysha Lubke
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing has been served
by electronic filing and fax on June 4, 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
preslj@co.comal.tx.us
fax: 830-608-2008
/ s / Mysha Lubke
Mysha Lubke
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