Zachariah Dorsett v. Archstone Memorial Heights ( 2012 )

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
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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).
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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.
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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.
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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.
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$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).
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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.
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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.
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