Kathryn Myles Jackson and Clifton Jackson v. Mandola F. Jos, Owner and North Forest I.S.D. ( 2012 )

Opinion issued January 26, 2012

In The

Court of Appeals

For The

First District of Texas

————————————

NO. 01-10-00010-CV

———————————

KATHRYN MYLES JACKSON AND CLIFTON JACKSON, Appellants

V.

NORTH FOREST INDEPENDENT SCHOOL DISTRICT, Appellee

On Appeal from the 113th District Court

Harris County, Texas

Trial Court Cause No. 2009-69445

MEMORANDUM OPINION

          Appellants, Kathryn Myles Jackson and Clifton Jackson, appearing pro se, challenge the trial court’s order dismissing their lawsuit against appellee, North Forest Independent School District (“North Forest ISD”), multiple other governmental entities, and Mandola Jos. F.[1]  In their sole issue, the Jacksons contend that the trial court erred in sustaining the Harris County District Clerk’s contest to their affidavit of indigence[2] and ultimately dismissing their lawsuit for failing to pay the filing fee and other costs.       

          We reverse and remand.

Background

          On October 27, 2009, the Jacksons filed their Original Petition for Title of Real Property Acquired by Adverse Possession and Temporary Restraining Order, alleging that they had acquired property located at “0 Laura Koppe Rd. Houston, Texas 77028”[3] by adverse possession after maintaining the property for twenty-five years. The Jacksons further allege that, as a result of a judgment obtained by North Forest ISD in a separate lawsuit, the property was scheduled to be sold “for delinquent taxes” on November 3, 2009.[4]  The Jacksons seek an order temporarily restraining the sale of the property.   

The Jacksons attached to their petition a notarized Application to Proceed without Payment of Fees, which they both signed.[5]  In their application, the Jacksons jointly declare that they are unable to pay the costs of the proceedings and are “entitled to the relief sought in the petition.”[6]  They state that they are not incarcerated, are not currently employed, and their last day of employment had been on July 15, 2008.  They aver that, in the previous twelve months, they have not received money from “business, profession, or other self employ,” “rent payments, interest or dividends,” “annuities or life insurance payments,” “disability or workers compensation payments,” or “inheritances.”  Finally, the Jacksons state,

I declare that I have less than $20.00 in my checking account; I own a frame house, and a 2002 Honda CRV that is currently in bankruptcy.  There is no one that depends on me for support[.]  My husband and I both are currently employed and receives 12 dollars an hour 20 hours per week as of Sept. 2009.  Our current expenses exceeds [sic] our combined income.  Bankruptcy payment is $865 per month, furniture payment $232.72, car insurance $85.00, house insurance $140.00, food $200.00, phone bill $45.00, $102.00.

On November 13, 2009, the district clerk filed a Contest of Affidavit of Indigence.  Contending that the Jacksons had failed to comply with one or more unspecified “statutory requirements,” the district clerk “demand[ed] strict proof” that the Jacksons were “too poor to pay filing fees.”  On December 7, 2009, the trial court conducted a hearing on the district clerk’s contest. The reporter’s record from this hearing reveals that, immediately after a trial court clerk had notified the trial court that the Jacksons had called the court to state that they could not attend the hearing, the trial court instructed the Harris County Attorney to “fill in the blanks” of the proposed order sustaining the contest.  It then stated that it would sign the order.  Neither the district clerk nor the trial court ever discussed on the record the substance of the Jacksons’ affidavit. 

Also on December 7, 2009, the trial court signed the Judgment and Order Sustaining Contest to Pauper’s Oath.  In its order, the trial court found that the Jacksons were able to pay the filing fees, the Jacksons’ affidavit was not filed in good faith, and the contest should be sustained.  The trial court made no other findings in support of its order, nor did it set forth any reasons to support its finding that the Jacksons had filed their affidavit in bad faith.  The trial court enjoined any further proceedings in the case until the Jacksons paid $509 in filing fees, and other incurred costs.  It also ordered that the case would be dismissed without prejudice and noted that it would enter a judgment against the Jacksons in the amount of $509 if they did not pay such fees by February 8, 2010.

On December 18, 2009, the Jacksons filed a document entitled “Appeal from Adverse Decision,” in which they asked the trial court to vacate its order granting the district clerk’s contest.  It appears that, based upon the substance of this document, the Jacksons may have intended this document to constitute a request for the trial court to reconsider its ruling. The Jacksons asserted that, as early as December 4, 2009, they had notified the district clerk, through the Harris County Attorney, that they had not received proper notice of the December 7, 2009 hearing and that they could not attend the hearing in light of a conflicting medical appointment at a hospital.  The Jacksons also attached a bank statement reflecting a current available balance of $17.07.   In January 2010, the district clerk forwarded this document to this Court, and we treated it as a notice of appeal from the trial court’s order sustaining the district clerk’s contest. 

We then notified the Jacksons that their appeal of the trial court’s order sustaining the district clerk’s contest had been filed in this Court.  After sending them this notice, the Jacksons began to direct additional motions to this Court, but they also continued to make filings in the trial court.  For example, on January 26, 2010, the Jacksons filed in this Court an “Emergency Motion to Enforce Hearing on TRO’s in Adverse Possession Proceeding,” complaining that they had not received timely notice of the contest hearing and they had notified the Harris County Attorney that they could not attend the hearing because they needed to attend a hospital appointment.  On April 2, 2010, the Jacksons filed in this Court a Motion to Proceed Without Payment of Fees, in which they outlined all of their outstanding bills and averred that their expenses exceeded their combined income.  The Jacksons also attached copies of their payroll sheets and bills to this motion. This Court subsequently found, in a separate order, that the Jacksons were indigent for purposes of appeal, and we directed the filing of a record from the trial court.

On March 4, 2011, the Jacksons filed with the district clerk a document entitled Notice of Motion Opposing Counsel’s Motion for Submission, in which the Jacksons again complained they had not received notice of the contest hearing and that the hearing had proceeded “in spite of [their] circumstances and [their] explanation” for not attending the hearing.  The Jacksons noted that, because the trial court had only previously “dismissed the pauper’s without prejudice,” they were again requesting that the trial court permit them to “proceed without payment of fees,” and they asserted that they were “receiving food stamps” and other social service assistance. The Jacksons attached to their “notice” a new Application to Proceed as Paupers, in which they averred that they were unable to pay the court costs and not receiving money from business, rent, insurance, annuities, or other sources. They also outlined their monthly expenses. 

On March 8, 2011, the trial court signed its Dismissal Order,[7] noting that it had sustained the district clerk’s Contest to the Pauper’s Oath on December 7, 2009 and, in its prior order, found that the Jacksons were able to pay all costs.  It further noted that it had ordered the Jacksons to pay the filing fee of $509 by February 8, 2010 and their failure to pay the fee would result in a dismissal of their lawsuit.  The trial court stated that, in accord with its December 7, 2009 order, the Jacksons’ lawsuit was dismissed without prejudice because they had not paid the filing fee and other costs by February 8, 2010.  The trial court also entered a judgment against the Jacksons and in favor of the district clerk for $509.  The Jacksons then filed another document entitled Appeal from Adverse Decision.[8]

Standard of Review

We review for an abuse of discretion the trial court’s dismissal order.  Black v. Jackson, 82 S.W.3d 44, 49–50 (Tex. App.—Tyler 2002, no pet.) (providing that standard of review of dismissal under section 13.001 of Texas Civil Practice and Remedies Code is abuse of discretion)[9]; Johnson v. Peterson, 799 S.W.2d 345, 347 (Tex. App.—Houston [14th Dist.] 1990, no writ) (same); see also Arevalo v. Millan, 983 S.W.2d 803, 804 (Tex. App.—Houston [1st Dist.] 1998, no pet.) (reviewing for abuse of discretion appeal of trial court’s order sustaining contest to affidavit of indigency that was filed for purposes of obtaining free appellate record); Jones v. Duggan, 943 S.W.2d 90, 93 (Tex. App.—Houston [1st Dist.] 1997, orig. proceeding) (reviewing, by mandamus, trial court’s order sustaining contest to affidavit to inability to pay appellate costs for abuse of discretion)[10]; Douglas v. Ingersoll, No. 14–09–00930–CV, 2010 WL 1077420, at *1 (Tex. App.—Houston [14th Dist.] Mar. 25, 2010, no pet.) (mem. op.) (stating that when “contest is sustained and a review of the ruling is sought, the question is whether an examination of the record as a whole establishes that the trial court abused its discretion”; reversing trial court’s order sustaining district clerk’s contest to affidavit of indigence filed for purposes of appeal); Auto v. Travelers Ins. Co., No. 01-05-00327-CV, 2006 WL 2893324, at *2 (Tex. App.—Houston [1st Dist.] 2006, pet. denied) (mem. op.) (stating that if “trial court sustains the contest, we must determine whether the court abused its discretion.”).  A trial court abuses its discretion when it acts in an arbitrary or unreasonable manner without reference to guiding rules or principles.  Arevalo, 983 S.W.2d at 804.  To show a clear abuse of discretion, an appellant must show that, under the circumstances of the case, the facts and law permitted the trial court to make but one decision.[11]  Id.; Cronen v. Smith, 812 S.W.2d 69, 71 (Tex. App.—Houston [1st Dist.] 1991, orig. proceeding).

Indigency

          In their sole issue, the Jacksons argue that the trial court erred in dismissing their lawsuit because they did not receive notice of the hearing on the district clerk’s contest to their affidavit of indigency and they could not attend the hearing.  We also construe the Jacksons’ brief to present a general challenge to the trial court’s order dismissing their lawsuit based upon the implied finding that their allegation of poverty was false.

A party who is unable to afford costs associated with an original action must file an affidavit in lieu of paying or giving security for such costs.  Tex. R. Civ. P. 145(a).  A party “unable to afford costs” is defined as a person who is presently receiving a governmental entitlement based on indigency or any other person who has no ability to pay costs.  Id.  Upon a party’s filing of such an affidavit, the clerk must docket the action, issue citation, and provide such other customary services as are provided any party.  Id. 

The Texas Rules of Civil Procedure prescribe the contents of an affidavit of indigency that must be filed by a party unable to afford costs.  Id.  The affidavit

[M]ust contain complete information as to the party’s identity, nature and amount of governmental entitlement income, nature and amount of employment income, other income, (interest, dividends, etc.), spouse’s income if available to the party, property owned (other than homestead), cash or checking account, dependents, debts, and monthly expenses. The affidavit shall contain the following statements: “I am unable to pay the court costs. I verify that the statements made in this affidavit are true and correct.”  The affidavit shall be sworn before a notary public or other officer authorized to administer oaths. . . .

Tex. R. Civ. P. 145(b).

Once a contest is filed, if the court finds at the first regular hearing in the course of the action that the party, other than a party receiving a governmental entitlement based on indigency, is able to afford costs, the party must pay the costs of the action.[12]  Tex. R. Civ. P. 145(d).  A trial court that finds that a party is able to afford costs must set forth its “[r]easons for such a finding” in an order.  Id. (emphasis added).  Except with leave of court, no further steps in the action will be taken by a party who is found able to afford costs until payment is made. Id.

When an affidavit of indigence is filed pursuant to rule 145, a trial court may dismiss the case on a finding that the allegation of poverty in the affidavit is false.[13]  Tex. Civ. Prac. & Rem. Code Ann. § 13.001(a)(1) (Vernon 2002); In re Kastner, No. 14-09-00653-CV, 2009 WL 3401867, at *1 (Tex. App.—Houston [14th Dist.] 2009, orig. proceeding [mand. denied]) (mem. op.) (“When the trial court has sustained a contest to an affidavit of indigence filed pursuant to Texas Rule of Civil Procedure 145, the court typically dismisses the case, finding the allegation of poverty is false and/or the case is frivolous.”).  The purpose of section 13.001 is to ensure that limited resources are employed as efficiently as possible to resolve arguable claims and claims without merit are dismissed at an early stage in the proceedings.  Black, 82 S.W.3d at 53; Pedraza v. Tibbs, 826 S.W.2d 695, 698 (Tex. App.—Houston [1st Dist.] 1992, writ dism’d w.o.j.).

Although the trial court did not state its statutory basis for dismissing the Jacksons’ case, it expressly found that the Jacksons were able to pay all costs. And, in its prior order sustaining the district clerk’s contest, which the trial court effectively incorporated into its dismissal order, the trial court stated that the Jacksons had not filed their affidavit in good faith.  We consider the trial court’s dismissal to be based upon section 13.001(a)(1), which permits a court to dismiss a lawsuit upon a finding that the allegation of poverty is false.  See In re Kastner, 2009 WL 3401867, at *1 (noting that courts, after sustaining contest to  affidavit of indigence, “typically” dismiss cases under grounds articulated in section 13.001); see also In re Tilotta, No. 01–11–00570–CV, 2011 WL 3505502, at *1 (Tex. App.—Houston [1 Dist.] 2011, orig. proceeding) (stating that trial court’s order sustaining the contest to rule 145 affidavit of indigence was “merged into the trial court’s final judgment” of dismissal for want of prosecution).

In their affidavit, the Jacksons stated that they were unable to pay the costs of the proceedings, they were not employed, their last day of employment had been on July 15, 2008, they had no other income from any other sources (including interest or dividends), and they had less than $20.00 in their checking account. The Jacksons further stated that they owned a car “that is currently in bankruptcy.”  They set forth their monthly expenses, which included a sizeable “bankruptcy payment,” house and car insurance costs, and other basic monthly obligations, such as food, utilities, and telephone bills.   Finally, they averred that their current expenses exceeded their combined income. By the plain terms of the figures set forth in their affidavit, the Jacksons represented an approximate weekly income of $240 and a monthly obligation of bills for approximately $1,870. The Jacksons affidavit complies in all material respects with rule 145 and provided the information specifically articulated in the rule.  We conclude that, in considering the record as a whole, the preponderance of the evidence demonstrates that the Jacksons are unable to pay the costs ordered by the trial court. See In re C.H.C., 331 S.W.3d 426, 429 (Tex. 2011) (stating that test “for determining indigence is straightforward: 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?”; further stating that affidavit may provide sufficient information to demonstrate that party is unable to pay costs (on appeal), even if affidavit does not discuss each of items enumerated in rules) (citations omitted).

The district clerk contested the Jacksons’ affidavit only with a general citation to rule 145 and the assertion that the affidavit did not comply “with one or more of the statutory requirements.”  It did not attack the affidavit in any particular respect.  The trial court ruled on the contest at a hearing, which was recorded, but the record reflects that there was no substantive discussion regarding either the contest or the affidavit.  The only matter discussed at the hearing was that the Jacksons had notified the trial court that they could not attend the hearing.  The district clerk, who was represented by the Harris County Attorney, did not identify any errors or omissions in the Jacksons’ affidavit, nor did it counter the Jacksons’ assertions in their affidavit regarding their monthly income and expenses.  In its order sustaining the contest and in its subsequent dismissal order, the trial court set forth no reasoning to support its finding that the Jacksons’ allegations of poverty were false.  See Tex. R. Civ. P. 145 (“Reasons for such a finding must be contained in an order.”).  The record also reflects that the Jacksons themselves did not attend the hearing. Although the affidavit could have been subject to critique because it was prepared as a joint affidavit and did not make any distinction between the Jacksons, the affidavit also indicates that the Jacksons were married and shared a household, monetary resources, and monthly obligations.[14]  The district clerk did not complain about the format of the joint application at the hearing or in its written contest.[15] 

Without any record as to why the trial court found the Jacksons’ affidavit of indigency to be false, and without the benefit of any reasoning set forth by the trial court in its order sustaining the contest or in its subsequent dismissal order, we conclude that the trial court, in dismissing the Jacksons’ lawsuit, acted arbitrarily and without reference to guiding rules or principles.  See Jones v. CGU Ins. Co., 78 S.W.3d 626, 628 (Tex. App.—Austin 2002, no pet.).  Accordingly, we hold that the trial court abused its discretion in dismissing the Jacksons’ suit pursuant to section 13.001.

We sustain the Jacksons’ sole issue.[16]

Conclusion

          We reverse the order of the trial court and remand the case for further proceedings consistent with this opinion.

                                                                    Terry Jennings

                                                                   Justice

Panel consists of Justices Jennings, Massengale, and Huddle.

---

[1]           North Forest ISD is the only defendant who appeared in the lawsuit below.

[2]           See Tex. R. Civ. P. 145(d).

[3]           The Jacksons alleged that this land is “legally described as LT. 253, BLK 16 PARKHURST ESTATES.”

[4]           The Jacksons specifically allege that North Forest ISD had previously obtained a judgment for the non-payment of taxes against “Mandola Jos. F.,” who the Jacksons describe as “the property owner.”  The Jacksons do not explain their relationship, if any, to Mandola Jos. F.

[5]           The Jacksons attached to this application another affidavit in which they declare “under oath and penalty of the laws of the State of Texas” that they acquired title to the disputed land “through 27 years of adverse possession.” This affidavit is also notarized, and the notary confirmed that it was signed under oath. 

[6]           Although the Jacksons submitted a joint application, they use the pronoun “I” throughout the application without distinguishing whether certain statements pertained to one or both of them.  We construe the application to reflect joint declarations.

[7]           Prior to the entry of this final dismissal order, the trial court had not entered an appealable order.  A trial court’s order sustaining a district clerk’s contest to an affidavit of indigence is generally an interlocutory order for which there is no right of appeal.  See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a) (Vernon Supp. 2011); Jones v. Perez, No. 01–11–00669–CV, 2011 WL 6147787, at *1 (Tex. App.—Houston [1st Dist.] Dec. 8, 2011, no pet. h.) (mem. op.); see also Yarbrough v. Tex. Bd. of Pardons and Paroles, No. 01–10–00335–CV, 2011 WL 3839712, at *1 (Tex. App.—Houston [1st Dist.] Aug. 25, 2011, no pet.) (mem. op.) (“We may review a challenge to an order sustaining a contest to an affidavit of indigence only when it is made as part of a pending appeal from a final judgment or other appealable order.”); Aguilar v. Texas La Fiesta Auto Sales LLC, No. 01–08–00653–CV, 2009 WL 1562838, at *1–2 (Tex. App.—Houston [1st Dist.] June 4, 2009, no pet.) (mem. op.) (dismissing appeal of order sustaining contest to affidavit of indigence for trial court costs). Although the Jacksons’ initial appeal of the trial court’s order sustaining the contest was premature, the trial court has now entered a final, appealable order, and we treat the Jacksons’ appeal as arising from the dismissal order.  See Tex. R. App. P. 27.1, 27.2, 27.3.

The Jacksons also did not expressly seek mandamus relief. Recently, in dismissing the appeal of order sustaining a contest to an affidavit of indigence prior to entry of final judgment, we “express[ed] no opinion about whether the trial court’s order [was] reviewable by petition for a writ of mandamus.”  Aguilar, 2009 WL 1562838, at *1 n.1; see also Carter v. Dickson, 514 S.W.2d 349, 350–51 (Tex. Civ. App. 1974, orig. proceeding [mand. denied]) (denying mandamus relief from order sustaining contest to affidavit of indigence filed under rule 145).

[8]           In November 2011, this Court entered an order, concluding that the Jacksons are considered indigent for purposes of appeal. This conclusion does not resolve the Jacksons’ appeal of the trial court’s dismissal order.  See Tex. R. Civ. P. 145; see also Tex. R. App. P. 20.1(c)(1) (“An appellant must file the affidavit of indigence in the trial court with or before the notice of appeal. The prior filing of an affidavit of indigence in the trial court pursuant to Texas Rule of Civil Procedure 145 does not meet the requirements of [Rule 20.1], which requires a separate affidavit and proof of current indigence. . . .”).

[9]           See Tex. Civ. Prac. & Rem. Code Ann. § 13.001 (Vernon 2002).

[10]         The Texas Supreme Court has held that appeal, not mandamus, is the sole way to review a denial of a free appellate record.  In re Arroyo, 988 S.W.2d 737, 739 (Tex. 1998).

[11]         There is little authority regarding the proper standard of review of a trial court’s dismissal of a lawsuit made on the ground that the allegation of poverty in an affidavit of indigency is false.  See Tex. Civ. Prac. & Rem. Code Ann. §13.001(a)(1).  Courts have reviewed dismissals of frivolous or malicious actions for an abuse of discretion. See id. § 13.001(a)(2); Jones v. CGU Ins. Co., 78 S.W.3d 626, 628 (Tex. App.—Austin 2002, no pet.).  Courts have also reviewed appeals from trial courts’ orders sustaining contests to affidavits filed in an attempt to proceed as indigent on appeal for an abuse of discretion.  Douglas v. Ingersoll, No. 14–09–00930–CV, 2010 WL 1077420, at *1 (Tex. App.—Houston [14th Dist.] Mar. 25, 2010, no pet.).  Accordingly, we conclude that the proper standard of review to apply here is the abuse-of-discretion standard. 

[12]         A party’s affidavit of inability that attests to receipt of government entitlement based on indigency may be contested only with respect to the veracity of the attestation.  Tex. R. Civ. P. 145(d).

[13]         A court in which an affidavit of inability to pay under rule 145 has been filed may also dismiss the action on a finding that “the action is frivolous or malicious.”  Tex. Civ. Prac. & Rem. Code Ann. § 13.001(a)(2).  Here, the trial court made no findings that the Jacksons’ suit was frivolous or malicious.

[14]         We acknowledge that the affidavit inconsistently states that the affiants were “currently unemployed” but also states that they are “currently employed and receives [sic] $12 dollars an hour 20 hours per week.”  Part of this inconsistency may be attributable to the fact that the application is presented as a joint application and is signed by both Jacksons, yet it also contains singular references.  However, the district clerk did not raise this matter, and the trial court did not set forth its reasoning in its order. 

Our supreme court has recently emphasized that “[c]ourts should be open to all, including those who cannot afford the costs of admission” and we should construe the rules to effectuate this purpose.  In re C.H.C., 331 S.W.3d 426, 429 (Tex. 2011); see also Higgins v. Randall County Sheriff’s Office, 257 S.W.3d 684, 686 (Tex. 2008) (“The concept that courts should be open to all, including those who cannot afford the costs of admission, is firmly embedded in Texas jurisprudence.”). 

Accordingly, when considering the matter of indigency, our supreme court has “decline[d] to elevate form over substance” and has “refus[ed] to require strict conformance with other formal aspects” of the rules governing affidavits of indigency.  See Higgins, 257 S.W.3d at 688 (addressing adequacy of affidavit of indigency filed for purposes of appeal, but acknowledging rules at both appellate and trial levels that require liberal construction in order to preserve litigants’ rights).  Thus, we will not affirm the trial court’s ruling based upon the potential inconsistencies and formal defects that arise from the fact that the Jacksons jointly filed their affidavit.  

[15]         We further acknowledge that the affidavit might also be subject to critique because (1) it was styled an Application to Proceed without Payment of Fees rather than an “Affidavit on Indigency,” as is referred to in the rules; (2) although the Jacksons “declar[ed]” in their affidavit that there were seeking to proceed without payment of fees and that they were “unable to pay the costs” of the proceedings,” they did not use all of the quoted language in rule 145 that they “verif[ied] that the statements made in this affidavit [were] true and correct”; (3) although the affidavit was notarized, the Jacksons did not state that the affidavit was sworn; and (4) only the second affidavit, which was attached to the application and which related to the issue of adverse possession, contained language that they made their statements under “oath.”  As with the possible critique arising from the Jacksons’ filing of a joint affidavit, it bears repeating that the district clerk, both at the trial court and on appeal, has not attacked the sufficiency of the affidavit for any of these possible errors or defects.  Precedent from our supreme court indicates that, had such matters been raised, the Jacksons should have been given an opportunity to amend their affidavit before their case was dismissed on any such grounds.  See id. (noting “policy embodied in our appellate rules that disfavors disposing of appeals based upon harmless procedural defects”); Higgins v. Randall County Sherriff’s Office, 193 S.W.3d 898, 899–900 (Tex. 2006) (holding that appeal may not be dismissed for formal procedural defect in affidavit of indigency unless party is provided reasonable opportunity to correct defect); see also In re B.N., 303 S.W.3d 16, 18 (Tex. App.—Waco 2009, no pet.) (stating that “unsworn” affidavit of indigency did not satisfy requirements for filing affidavit of indigency in parental termination case, but holding that trial court should have given appellant reasonable opportunity to amend). Moreover, the trial court actually stated in its order, which was effectively incorporated into its dismissal order, that the Jacksons’ affidavit was not filed in good faith.  It did not sustain the contest and ultimately dismiss the case on the ground that the affidavit failed to comply with the rules in the above-specified procedural manners.  Finally, we note that, after sustaining the contest, the Jacksons filed revised affidavits of indigence with additional information, and there is no indication that the trial court considered those affidavits.  Rather, in its dismissal order, the trial court incorporated its December 7, 2009 ruling.  

[16]         In light of our holding, we need not directly address the issue of notice raised by the Jacksons.  However, we note that generally a party is entitled to three days’ notice of a hearing if served in person, by agent, or by courier, or six days’ notice if served by certified mail or telephonic document transfer.  See Tex. R. Civ. P. 21, 21a.  In their briefing, the Jacksons contend that they received no notice, or at least insufficient notice, of the hearing on the contest.  The record does not contain any documents indicating that the Jacksons were provided any advanced notice of the hearing date on the district clerk’s contest, and the district clerk has not filed a brief on appeal responding to the Jacksons’ contention that they did not receive notice.  At the hearing, although the record reflects that the Jacksons called the trial court to inform it that they could not attend, there was no discussion of whether the Jacksons received the requisite notice.  See Prince v. Am. Bank of Tex., No. 05–10–01540–CV, 2011 WL 5345251, at *1 (Tex. App.—Dallas Nov. 8, 2011, no pet.) (mem. op.) (holding that trial court abused its discretion in sustaining contest to affidavit of indigence because party asserting indigency received inadequate notice of hearing); Ward v. City of Dallas, No. 05–10–00941–CV, 2011 WL 2119552, at *1 (Tex. App.—Dallas May 27, 2011, no pet.) (mem. op.) (same); see also Aguilar v. Stone, 68 S.W.3d 1, 2 (Tex. App.—Houston [1st Dist.] 1997, orig. proceeding) (holding that petitioner inmate was entitled to notice on hearing of contest to his affidavit of inability to pay costs, and reversing trial court order that sustained contest for inmate’s failure to appear at contest hearing).