Jay Sandon Cooper v. Judge Paul McNulty ( 2015 )

Opinion entered July 23, 2015.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-15-00801-CV
JAY SANDON COOPER, Appellant
V.
JUDGE PAUL MCNULTY, Appellee
On Appeal from the 219th Judicial District Court
Collin County, Texas
Trial Court Cause No. 219-01611-2015
MEMORANDUM OPINION ON MOTION TO REVIEW TRIAL COURT
ORDER SUSTAINING CONTEST TO AFFIDAVIT OF INDIGENCE
Before Chief Justice Wright and Justices Lang-Miers and Stoddart
Opinion by Justice Stoddart
Before the Court is Jay Sandon Cooper’s July 16, 2015 motion to review the trial court’s
July 7, 2015 order sustaining the Collin County District Clerk’s contest to his affidavit of
indigence.1 See TEX. R. APP. P. 20.1(j). We affirm the trial court’s order.
BACKGROUND
Seeking to proceed on appeal without advance payment of costs, Cooper, appearing pro
se, filed his affidavit of indigence contemporaneously with his notice of appeal from orders
dismissing the underlying cause and declaring him a vexatious litigant. See id. 20.1(c)(1). He
1
Cooper also filed on July 16, 2015 an updated affidavit of indigence, which the district clerk has also contested. The affidavit was not
filed with the trial court and does not vary significantly from the affidavit reviewed by the trial court. Because our review is limited to what the
trial court had before it, we do not consider it. See TEX. R. APP. P. 20.1(j).
alleged in his affidavit that his house was sold at foreclosure in August 2014, although litigation
was ongoing; he owned no property with equity or any other assets; he was unable to obtain a
loan; and, he had a claim against him by the Internal Revenue Service for $64,000, an amount he
disputed. Cooper further alleged his sole source of income is retirement benefits in the amount
of $2,586 per month and his total monthly expenses average $2,704. Those expenses consist of
approximately $842 for utilities; $100 for home maintenance; $500 for food; $40 for laundry and
dry-cleaning; $100 for medical and dental expenses; $328 for transportation, “not including
motor vehicle payments” but including “fuel;” $10 for “[r]ecreation, entertainment, newspapers,
magazines, etc.;” $93 for “[m]otor vehicle;” approximately $400 for “copies, mail;” and $291 for
“Westlaw subscription.” The affidavit also listed as monthly expenses $1,026 per month for
“[r]ent or home-mortgage payment;” and $200 for insurance, but these expenses were not
included in the sum total of $2,704.
Contending Cooper could afford to pay the costs of the appeal, the district clerk timely
filed a contest pursuant to Texas Rule of Appellate Procedure 20.1(e) and requested a hearing.
See id. 20.1(e)(1). At the hearing, the court took judicial notice of the affidavit and considered
Cooper’s testimony. Cooper did not testify to any additional income or expenses, but explained
the amounts for “rent or home-mortgage payment” and insurance were not included in the sum
total of expenses because he was not currently paying any rent, mortgage, or insurance
premiums. He also explained that the Westlaw subscription was “absolutely a necessity in order
to be able to stay in touch and abreast of the law in whatever I am fighting against the United
States government and all of their staff, as well as some other legal matters that are attendant to
me, including criminal matters that are pending before the Texas Court of Criminal Appeals and
such.” With regard to the $400 monthly expense for “copies [and] mail,” he explained he did not
have “a working printer or copier at home, so [he had] to go to Fed Ex, Kinko’s, to be able to
print and copy and [get] things out to the courts when they are due.” He testified he did not
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know the fee for filing the appeal, but knew he could not afford it because he did not have
“enough money to buy food for the last day of the month.” Asked by counsel for the district
clerk whether that was because he “ha[d] prioritized paying money for copying and Westlaw to
file other lawsuits and that’s how [he] dispose[d] of [his] resources,” Cooper replied, “The courts
have an expectation that they are going to get their copies, yes.”
Noting Cooper identified a monthly income of $2,586 and stated he did not pay any
mortgage, rent, property insurance, or taxes, the trial judge found Cooper had “sufficient
discretionary funds to pay the appellate fees” and sustained the contest.
STANDARD OF REVIEW AND APPLICABLE LAW
The test for determining indigence is whether the record as a whole shows “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) (citing Higgins v. Randall Cnty. Sheriff’s Office,
257 S.W.3d 684, 686 (Tex. 2008)). In reviewing a trial court’s ruling on a contest to an affidavit
of indigence, we apply an abuse of discretion standard. Basaldua v. Hadden, 298 S.W.3d 238,
241 (Tex. App.—San Antonio 2009, no pet.) (per curiam). We will conclude the trial court
abused its discretion if it acted without reference to any guiding rules or principles or in an
arbitrary and unreasonable manner. Id.
DISCUSSION
We have reviewed the record before us and conclude it does not show Cooper “would be
unable to pay the costs, or a part thereof, if he really wanted to and made a good-faith effort to do
so.” See C.H.C., 331 S.W.3d at 429. As the trial judge noted, Cooper’s monthly income is
$2,586, and he pays no mortgage, rent, property insurance, or taxes. Although his expenses
slightly exceed his income, just under a third of those expenses are litigation-related, and
admittedly he has prioritized paying for those expenses over other expenses. The trial court did
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not abuse its discretion in sustaining the contest. See Cronen v. Smith, 812 S.W.2d 69, 71 (Tex.
App.—Houston [1st Dist.] 1991, orig. proceeding) (no abuse of discretion in sustaining contest to
affidavit where relator had expected income of approximately $989 per month in worker’s
compensation and he was unable to look for work and work regularly because of “the numerous
lawsuits [he had voluntarily filed] against various governmental entities in Harris County).
Accordingly, we affirm the trial court’s order.
Having concluded the trial judge did not abuse his discretion in sustaining the contest, we
ORDER Cooper to pay, or make arrangements to pay, for the clerk’s and court reporter’s
records no later than August 24, 2015. We further ORDER him to file, no later than August 31,
2015, written verification that he has paid or made arrangements to pay for the record. We
caution Cooper that failure to pay for the reporter’s record will result in this appeal being
submitted without that record; failure to pay for the clerk’s record will result in dismissal of this
appeal without further warning. See Tex. R. App. P. 37.3(b),(c), 42.3(b),(c).
/Craig Stoddart/
CRAIG STODDART
JUSTICE
150801F.P05
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