In the Interest of S.T. , 2007 Tex. App. LEXIS 9252 ( 2007 )

ORDER

PER CURIAM.

Donald Taylor brings this appeal from a judgment terminating his parental rights.¹ After judgment, the trial court held a hearing on Taylor’s claim of indigence and on the statement of points for appeal he had filed. The court concluded that Taylor had failed to prove his indigence and that his appeal is frivolous. See Tex. Fam. Code Ann. § 263.405(d) (Vernon Supp. 2007). We hold that: (1) the court abused its discretion by finding that Taylor failed to prove his indigence; (2) the appeal must be abated for appointment of counsel; and (3) Taylor or another party must provide a reasonable explanation for the late filing of Taylor’s request for preparation of the clerk’s record or this appeal will be dismissed.

Background

The trial court signed the termination decree on September 12, 2007. Taylor filed a notice of appeal, an affidavit of indigence, and a statement of points for appeal on September 26. He filed a supplemental statement of points on September 27. The Department filed an objection to Taylor’s indigence claim on October 3. The court conducted a hearing on these matters on that same day and concluded that Taylor had failed to prove his indigence and that his appeal is frivolous.

A reporter’s record of this post-judgment hearing was filed in this Court on October 16. A limited clerk’s record was filed on October 30.

Section 263.405(g)

Section 263.405(g) of the Family Code provides in pertinent part that an “appellant may appeal the court’s order denying the appellant’s claim of indigence or the court’s finding that the appeal is frivolous.” Tex. Fam.Code Ann. § 263.405(g) (Vernon Supp.2007). Thus, the only issues Taylor can appeal at this juncture are the findings that he failed to establish his indigence and that his appeal is frivolous. See In re R.A.P. II, No. 14-06-00109-CV, 2007 WL 174376, at *2 (Tex.App.-Houston [14th Dist.] Jan. 25, 2007, no pet.) (mem.op.) (“the aggrieved parent can appeal, but the appeal is limited to the frivolousness issue”); In re K.D., 202 S.W.3d 860, 865 (Tex.App.-Fort Worth 2006, no pet.) (“once the trial court determines that an appeal is frivolous, the scope of appellate review is statutorily limited to a review of the trial court’s frivolousness finding”).

Because of the trial court’s post-judgment rulings, the scope of appellate review is limited. Tex. Fam.Code Ann. § 263.405(g); R.A.P., 2007 WL 174376, at *2; K.D., 202 S.W.3d at 865. Taylor’s notice of appeal was filed before the trial court made its post-judgment rulings and seeks review of the termination decree. Before this Court can reach the substantive merits of Taylor’s case however, this Court must determine whether his appeal is frivolous and whether he should be permitted to proceed as an indigent party. Therefore, this Court will presume that Taylor is challenging the trial court’s post-judgment rulings at this juncture of the appeal.²

Perfecting the Appeal

Subsection (g) of this statute plainly states the manner by which a party obtains appellate review of adverse determinations under section 263.405(d).³

The appellant may appeal the court’s order denying the appellant’s claim of indigence or the court’s finding that the appeal is frivolous by fifing with the appellate court the reporter’s record and clerk’s record of the hearing held under this section, both of which shall be provided without advance payment, not later than the 10th day after the date the court makes the decision.

Tex. Fam.Code Ann. § 263.405(g).

We fully acknowledge that this Court requires a separate notice of appeal in a criminal appeal in which a defendant seeks to challenge the trial court’s determination that he is not indigent for purposes of appeal.⁴ See, e.g., Duncan v. State, 158 S.W.3d 606, 607 (Tex.App.-Waco 2005, order) (per curiam), appeal dismissed, 220 S.W.3d 131 (Tex.App.-Waco 2007, pet. ref'd). This Court also requires a separate notice of appeal in an ordinary civil appeal in which a defendant seeks to challenge the trial court’s determination that he is not indigent. See, e.g., Baughman v. Baughman, 65 S.W.3d 309, 311 (Tex.App.-Waco 2001, pet. denied); accord Rodgers v. Mitchell, 83 S.W.3d 815, 817-18 (Tex.App.-Texarkana 2002, no pet.). In such cases however, there is not a specific statute or rule which specifies how the appeal is to be perfected. By comparison, section 263.405(g) plainly states the requirements for perfecting an appeal of adverse rulings under section 263.405(d). Therefore, we hold that no separate notice of appeal is required.

Timeliness of Appeal

Section 263.405(g) requires the clerk’s and reporter’s records to be filed “without advance payment, not later than the 10th day after the date the court makes the decision” being appealed. Tex. Fam.Code Ann. § 263.405(g). Here, because the trial court signed its order on October 3, 2007, the records were due on Monday, October 15. See Tex.R.App. P. 4.1(a). Although the reporter’s record was timely filed,⁵ the clerk’s record was not, having been filed on October 30. Thus, Taylor’s indigence/frivolousness appeal was arguably not timely perfected.

Nonetheless, a litigant has little control over a trial court clerk or a court reporter. Presumably for this reason, Rule of Appellate Procedure 35.3(c) imposes a joint responsibility on the trial and appellate courts “for ensuring that the appellate record is timely filed.” Id. 35.3(c). “The appellate court must allow the record to be filed late when the delay is not the appellant’s fault, and may do so when the delay is the appellant’s fault.” Id. Section 263.405(h) permits an extension of the time for filing a record “on a showing of good cause.” Tex. Fam.Code Ann. § 263.405(h) (Vernon Supp.2007).

Under section 263.405(g), an appellant ought to file requests for preparation of the clerk’s and reporter’s records and deliver a copy of the request for the reporter’s record to the court reporter on the same day or at least the next business day after the signing of the order being appealed. Otherwise, there is little likelihood that the required records can be filed within the 10-day period specified by the statute. However, the statute imposes no such deadline for the appellant’s requests. Nonetheless, the statute necessarily imposes by implication a 10-day deadline on such requests.

Here, Taylor’s request for preparation of the clerk’s record was filed on October 22, nineteen days after the order was signed. Because Taylor filed his request within fifteen days after the 10-day deadline, we will imply a motion for extension which must be granted if appellant provides a reasonable explanation for the late filing. See Hone v. Hanafin, 104 S.W.3d 884, 886-87 (Tex.2003) (per curiam); Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex.1997); In re B.G., 104 S.W.3d 565, 567 (Tex.App.-Waco 2002, order, no pet). Therefore, this appeal will be dismissed unless, within fourteen days after the date of this Order, Taylor or any other party desiring to continue the appeal files with the Clerk of this Court a brief or other response providing a reasonable explanation for the late filing of Taylor’s request for preparation of the clerk’s record. See Jones v. City of Houston, 976 S.W.2d 676, 677 (Tex.1998); Doe v. Brazoria County Child Protective Servs., 226 S.W.3d 563, 571 (Tex.App.-Houston [1st Dist.] 2007, no pet.); B.G., 104 S.W.3d at 567.

Indigence

One of the issues which may arise in an appeal under section 263.405(g) is whether the appellant established a claim of indigence. See Tex. Fam.Code Ann. § 263.405(g). Because of the accelerated timetable applicable to an appeal governed by section 263.405 and because this Court has all the information necessary to review the trial court’s non-indigence determination, we will address that issue now without briefs from the parties. Id. (“The appellate court shall review the records and may require the parties to file appellate briefs on the issues presented, but may not hear oral argument on the issues. The appellate court shall render appropriate orders after reviewing the records and appellate briefs, if any.”) (emphases added).

To establish indigence for a civil appeal, a party must file an affidavit which complies with Rule 20.1. Tex.R.App. P. 20.1(a)(1).

The affidavit of indigence must identify the party filing the affidavit and must state what amount of costs, if any, the party can pay. The affidavit must also contain complete information about:

(1) the nature and amount of the party’s current employment income, government-entitlement income, and other income;

(2) the income of the party’s spouse and whether that income is available to the party;

(3) real and personal property the party owns;

(4) cash the party holds and amounts on deposit that the party may withdraw;

(5) the party’s other assets;

(6) the number and relationship to the party of any dependents;

(7) the nature and amount of the party’s debts;

(8) the nature and amount of the party’s monthly expenses;

(9) the party’s ability to obtain a loan for court costs;

(10) whether an attorney is providing free legal services to the party without a contingent fee; and

(11) whether an attorney has agreed to pay or advance court costs.

Id. 20.1(b).

This affidavit must be filed “with or before the notice of appeal.” Id. 20.1(c)(1). If indigence is timely contested,⁶ the party claiming indigence “must prove the affidavit’s allegations.” Id. 20.1(g). In the trial court, the party must establish by a preponderance of the evidence that he “would be unable to pay costs ‘if [he] really wanted to and made a good faith effort to do so.’ ” Jackson v. Tex. Bd. of Pardons & Paroles, 178 S.W.3d 272, 275 (Tex.App.-Houston [1st Dist.] 2005, no pet.) (quoting Arevalo v. Millan, 983 S.W.2d 803, 804 (Tex.App.-Houston [1st Dist.] 1998, no pet.)); Thomas v. Olympus/Nelson Prop. Mgmt, 97 S.W.3d 350, 352 (Tex.App.-Houston [14th Dist.] 2003, order, no pet.) (per curiam) (quoting Griffin Indus., Inc. v. Thirteenth Court of Appeals, 934 S.W.2d 349, 351 (Tex.1996) (orig.proceeding)); Baughman, 65 S.W.3d at 315; White v. Bayless, 40 S.W.3d 574, 576 (Tex.App.-San Antonio 2001, pet. denied) (per curiam) (quoting In re Sosa, 980 S.W.2d 814, 815 (Tex.App.-San Antonio 1998, orig. proceeding)).⁷ If the trial court sustains the contest, the appellate court must determine whether the trial court abused its discretion. Jackson, 178 S.W.3d at 275; Thomas, 97 S.W.3d at 352; Rodgers, 83 S.W.3d at 818; White, 40 S.W.3d at 576.

Taylor’s affidavit includes the information required by Rule 20.1(b). He filed the affidavit contemporaneously with his notice of appeal. The Department timely contested his indigence claim contending the affidavit was untimely and not in proper form. We do not agree with the Department’s contentions regarding the timeliness and form of Taylor’s affidavit. Nevertheless, because the Department timely contested Taylor’s indigence claim, Taylor had to prove his indigence. See Tex.R.App. P. 20.1(g).

In the indigence hearing, Taylor testified that he is a self-employed carpenter making about $400 per week. He is not married and has no dependents. He testified that he had nominal sums (less than $30) on deposit in two bank accounts. He has two vehicles, only one of which currently works. He has monthly bills of approximately $1,500-$1,800 per month.

On cross-examination, Taylor testified that he has worked in the past as an insurance adjuster. He made as much as $900 per day when he worked as an adjuster. However, he explained that this type of position was available only in times of natural disaster and the last time he worked in this capacity was after Hurricane Wilma struck in October 2005. He has not worked as an insurance adjuster since then because there have been no more disasters of that magnitude.

According to Taylor’s affidavit, the trial court found him indigent and appointed counsel to represent him at trial. Taylor provided affirmative testimony that his monthly income roughly approximates his monthly expenses and that he is unable to hire an attorney or pay the costs of appeal. The Department offered no evidence to refute Taylor’s testimony that his services as an insurance adjuster are not currently in demand.

Accordingly, we hold that the court abused its discretion by finding that Taylor failed to prove his indigence.

Representation

We have effectively determined that Taylor established his indigence for purposes of this appeal. However, Taylor’s counsel recently filed a nonrepresentation notice, stating that she “was dismissed” by the trial court. See Tex.R.App. P. 6.4. Presumably, counsel was “dismissed” because of the trial court’s indigence ruling. Because of this Court’s holding regarding Taylor’s indigence, Taylor is entitled to appointed counsel on appeal. See Tex. R.App. P. 263.405(e) (Vernon Supp.2007).

The Department may contend that, in light of the trial court’s determination that Taylor’s appeal is frivolous, counsel should not be appointed to represent Taylor on appeal. However, section 263.405(e) conditions appointment of counsel on only the indigence question. Id. In other words, an indigent person has a statutory right to appointed counsel to represent him in an appeal challenging a court’s determination under section 263.405(d) that his appeal is frivolous.

Therefore, we will abate this appeal to the trial court for appointment of counsel. See In re T.V., 8 S.W.3d 448, 450 (Tex. App.-Waco 1999, order) (per curiam) (“If Voisinet is indigent, the trial court shall take such measures as may be necessary to assure effective representation of counsel, which may include the appointment of new counsel.”), disp. on merits, 27 S.W.3d 622 (Tex.App.-Waco 2000, no pet.); see also Tex. Fam.Code Ann. § 263.405(g) (“appellate court shall render appropriate orders after reviewing the records”); In re K.K., 180 S.W.3d 681, 687-88 (TexApp.-Waco 2005, order, no pet.) (per curiam) (abating for hearing on ineffective-assistance claim and discussing numerous parental-rights termination appeals which have been abated for reasons related to appointed counsel); Brice v. Denton, 135 S.W.3d 139, 149 (Tex.App.-Waco 2004, pet. denied) (Gray, C.J., dissenting) (advocating abatement of parental-rights termination appeal for determination of “whether appointed trial counsel continues to represent the chent”).

Conclusion

The trial court abused its discretion by finding that Taylor failed to prove his indigence. Because the trial court has dismissed Taylor’s appointed counsel, we abate the appeal to the trial court for appointment of counsel. The trial court’s order appointing appellate counsel must be filed with the Clerk of this Court in a supplemental clerk’s record within fifteen (15) days after the date of this Order.

After the supplemental clerk’s record is filed, Taylor or any other party desiring to continue the appeal shall have fourteen (14) days to file a brief or other response providing a reasonable explanation for the late filing of Taylor’s request for preparation of the clerk’s record. If a reasonable explanation is not provided, the appeal will be dismissed.

Chief Justice GRAY dissenting.

1 . Because this suit was instituted by the Department of Family and Protective Services, this appeal is governed by section 263.405 of the Family Code. See Tex. Fam.Code Ann. §§ 263.401(a), 263.405 (Vernon Supp.2007).

2 . This presumption finds further support in Taylor’s “Designation of Record on Appeal of Indigency Ruling" (emphasis added) which he filed with the district clerk. In this document, Taylor asked the district clerk to file without advance payment of costs a limited clerk's record containing eighteen items filed after the judgment. The district clerk has complied with this request.

3 . This Court has taken a different approach to ascertain whether an appellant under similar circumstances desired to appeal adverse indigence and frivolousness rulings. See In re V.I., 206 S.W.3d 170, 170 (Tex.App.-Waco 2006, order) (Gray, C.J., dissenting) (quoting notice letter sent at behest of majority of justices). In V.I., this notice letter directed the appellant’s counsel to give this Court written notice whether she desired to appeal those rulings. In that case, however, all this Court had before it was the notice of appeal (from the termination decree). Here, the Court has both a reporter’s record from the post-judgment hearing and a limited clerk’s record. Therefore, we limit V.I. to its unique facts.

4 .The Court of Criminal Appeals has implicitly endorsed this Court’s insistence on a separate notice of appeal in such cases. See Whitehead v. State, 130 S.W.3d 866, 870, 880 (Tex.Crim.App.2004) (discussing when notice of appeal from adverse indigence ruling was filed and setting date when "notice of appeal from the judgment of conviction” would need to be filed).

5 . The Clerk of this Court received the reporter’s record on October 16. However, it was mailed on October 11. Thus, the reporter's record was timely under the "mailbox rule.” See Tex.R.App. P. 9.2(b)(1).

6 . To be timely, an indigence contest must ordinarily be filed within 10 days after the indigence affidavit is filed. Tex.R.App. P. 20.1(e). However, a party contesting an indigence claim must also keep in mind the deadlines established by section 263.405 for indigence determinations. See Tex. Fam.Code Ann. § 263.405(d) (indigence hearing must be held within 30 days after date final order is signed); § 263.405(e) (trial court shall consider person indigent and appoint counsel if written order denying indigence claim is not rendered within 36 days after date final order is signed).

7 . The internal quotation finds its origin in a 1942 decision of the Commission of Appeals. See Pinchback v. Hockless, 139 Tex. 536, 164 S.W.2d 19, 20 (1942) (quoted by Allred v. Lowry, 597 S.W.2d 353, 355 (Tex.1980) (orig.proceeding)) (quoted by Griffin Indus., Inc. v. Thirteenth Court of Appeals, 934 S.W.2d 349, 351 (Tex.1996) (orig.proceeding))).