David Rodriguez v. H-E-B, Jointly and Severally William Tate, Jointly and Severally and as Employee of H-E-B L.P., Stephen Martinez Jointly and Severally and as Employee of H-E-B L.P., Meredith Reid as Employee of H-E-B L.P, Jointly and Severally, Debra Ann Godoy as Employee of H-E-B L.P. ( 2020 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-19-00795-CV
David RODRIGUEZ,
Appellant
v.
H-E-B, Jointly and Severally, William Tate, Jointly and Severally and as employee of H-E-B
L.P., Stephen Martinez Jointly and Severally and as employee of H-E-B L.P., Meredith Reid as
employee of H-E-B L.P., Jointly and Severally, Debra Ann Godoy as employee of H-E-B L.P., et
al.,
Appellees
From the 131st Judicial District Court, Bexar County, Texas
Trial Court No. 2019CI16263
Honorable Cynthia Marie Chapa, Judge Presiding
PER CURIAM
Sitting: Sandee Bryan Marion, Chief Justice
Beth Watkins, Justice
Liza A. Rodriguez, Justice
Delivered and Filed: January 22, 2020
AFFIRMED AS TO DECEMBER 17, 2019 ORDER ON MOTION TO REQUIRE THE
APPELLANT TO PROVE THE INABILITY TO AFFORD COSTS
Appellant David Rodriguez filed a motion challenging the trial court’s December 17, 2019
Order on Motion to Require the Appellant to Prove the Inability to Pay Costs. We affirm the trial
court’s order.
04-19-00795-CV
BACKGROUND
On August 13, 2019, Rodriguez filed a statement of inability to pay costs in the trial court
in the underlying litigation. The record does not show that the trial court issued any rulings on
Rodriguez’s statement at that time. On November 5, 2019, the trial court signed an order declaring
Rodriguez a vexatious litigant, requiring him to furnish security in the underlying lawsuit, and
subjecting him to a prefiling order. On November 12, 2019, Rodriguez filed a notice of
interlocutory appeal from that order and requested the preparation of a reporter’s record. See Nunu
v. Risk, 567 S.W.3d 462, 466–67 (Tex. App.—Houston [14th Dist.] 2019, pet. denied) (holding
that that while “no statute authorizes an interlocutory appeal from an order declaring a person to
be a vexatious litigant and requiring the person to post security,” an appellant may bring an
interlocutory appeal of a prefiling order).
On November 15, 2019, court reporter Judy Stewart filed a Motion to Require the
Appellant to Prove the Inability to Pay Costs, and the trial court set a hearing on that motion for
December 4, 2019. Two days before the scheduled hearing, Rodriguez filed a response noting that
Stewart’s motion had been filed under the wrong trial court cause number. He also argued that
Stewart’s motion did not comply with Texas Rule of Civil Procedure 145(f)(1) or Texas Rule of
Appellate Procedure 20.1(e)(1). 1 He also contended that Stewart “did not file a contest to
Appellant’s ‘Statement’ in the Appellate Court and no contest was filed in the trial court.” On
December 2, 2019, Stewart refiled her motion under the correct cause number, and the trial court
reset the hearing on her motion for December 17, 2019. On December 3, 2019, Rodriguez filed a
1
The Texas Supreme Court amended the Texas Rules of Appellate Procedure to remove Rule 20.1(e)(1)—which
established a 10-day deadline for any challenge to a claim of indigence—in 2016. See In re Heredia, 501 S.W.3d 70,
71 (Tex. 2016) (applying former Rule 20.1(e)(1)). The current version of Rule 20 does not contain any similar
deadlines. TEX. R. APP. P. 20.1. Additionally, the comment to the 2016 amendments specifies that “Texas Rule of
Civil Procedure 145 governs a party’s claim that the party is unable to afford costs for preparation of the appellate
record.” Id. R. 20.1, cmt. to 2016 change.
-2-
04-19-00795-CV
supplement to his earlier response that essentially repeated the arguments he had raised previously,
including his contention that Stewart had not filed a contest to his claim of indigency. Neither
Rodriguez’s original response nor his supplement claimed that he had not been served with
Stewart’s motion or that he was unaware of the date the trial court had set for the hearing.
On December 17, 2019, the trial court held an evidentiary hearing on Stewart’s motion
challenging Rodriguez’s claim of inability to pay costs. Rodriguez did not appear at the hearing.
However, Stewart offered two exhibits showing that Rodriguez had received a $6,500 settlement
in a recent lawsuit and that he possibly owned a marital interest in a home worth approximately
$105,000. 2 That same day, the trial court signed an Order on Motion to Require the Appellant to
Prove the Inability to Pay Costs. That order found, inter alia, that Rodriguez had been given more
than 10 days’ notice of the hearing, that he failed to meet his burden of proof under Texas Rule of
Civil Procedure 145(f)(5), that he did not provide proof of income, and that he “has the ability to
afford the costs of court and the costs of appeal.” On December 18, 2019, Rodriguez filed a motion
challenging the trial court’s order in this court.
ANALYSIS
Standard of Review
We review a trial court’s ruling on a claim of inability to pay costs for abuse of discretion.
See In re J.P.N., No. 04-17-00633-CV, 2018 WL 626526, at *1 (Tex. App.—San Antonio Jan. 31,
2018, no pet.) (mem. op.).
Applicable Law
Texas Rule of Civil Procedure 145 provides that “[a] party who files a Statement of
Inability to Afford Payment of Court Costs cannot be required to pay costs except by order of the
2
While the trial court explicitly admitted the first of the two exhibits into evidence, the record does not contain a
ruling on the second exhibit.
-3-
04-19-00795-CV
court as provided by this rule.” TEX. R. CIV. P. 145(a). “When the declarant requests the
preparation of a reporter’s record but cannot make arrangements to pay for it, the court reporter
may move to require the declarant to prove the inability to afford costs.” Id. R. 145(f)(3). “In the
trial court, 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.” Basaldua
v. Hadden, 298 S.W.3d 238, 241 (Tex. App.—San Antonio 2009, no pet.).
Application
Rodriguez first argues that he was denied due process because he “attempted to further
respond to the court reporter’s challenge but was advised by the trial court that the ‘Staff Attorney’
had noted in the case that [Rodriguez] was barred by a vexatious order to not appear and could not
file anything any longer in the case.” This assertion is not supported by any portion of the record,
nor is it “supported by affidavit or other satisfactory evidence.” TEX. R. APP. P. 10.2. As a result,
we do not consider this argument. Id.
Rodriguez also complains that Stewart’s motion was defective because it was not supported
by sworn evidence and therefore did not comply with Texas Rule of Civil Procedure 145(f)(1). He
also contends that as a result, Stewart’s motion did not authorize the trial court to conduct a hearing
on Rodriguez’s claim of inability to pay court costs. However, Rule 145(f)(1) specifically applies
to motions brought by “the Clerk or a Party.” TEX. R. CIV. P. 145(f)(1). Stewart—who is a court
reporter, not a clerk or a party—filed her motion under Rule 145(f)(3), which does not require the
motion at issue here to be supported by sworn evidence. Id. R. 145(f)(3). We therefore overrule
these challenges to the trial court’s order.
Next, Rodriguez argues that his statement of inability to pay costs was sufficient to meet
his burden of proof because it was made under penalty of perjury on the Texas Supreme Court’s
-4-
04-19-00795-CV
approved form. However, the comments to the 2016 amendments to Rule 145 provide that “[t]he
trial court always retains discretion to require evidence of an inability to afford costs.” Id. R. 145,
cmt. to 2016 change. Furthermore, Rule 145(f)(5) mandates that during a hearing like the one that
took place here, “the burden is on the declarant to prove the inability to afford costs.” Id. R.
145(f)(5); see also In re J.P.N., 2018 WL 626526, at *2. Although Rodriguez does not dispute that
he was given more than 10 days’ notice of the hearing, he did not appear to present evidence in
support of his claimed inability to pay costs. As a result, the evidence does not show that he “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.” Basaldua, 298 S.W.3d at 241. Because Rodriguez did not carry
his burden under Rule 145, the trial court did not abuse its discretion by finding that he is able to
afford the costs of court. TEX. R. CIV. P. 145(f)(5); Basaldua, 298 S.W.3d at 241.
Finally, Rodriguez argues that the trial court’s findings were not supported by sworn
evidence and therefore constitute an abuse of discretion. This argument ignores that Stewart
presented evidence at the hearing showing that Rodriguez received a $6,500 settlement
approximately three months before he filed his statement of inability to pay court costs.
Additionally, the authority upon which Rodriguez relies for this assertion is distinguishable from
these facts. See In re N.V.R., No. 06-17-00022-CV, 2017 WL 727261 (Tex. App.—Texarkana Feb.
24, 2017, no pet.). In N.V.R., the challenge to the appellant’s inability to pay costs was brought by
a party—not, as here, a court reporter—and was therefore governed by Rule 145(f)(1)’s “sworn
evidence” requirement. Id. at *2. The N.V.R. court also noted that there was no evidence the party
claiming inability to pay costs in that case had been given “the ten-day, mandatory hearing notice
required by the Rule.” Id. Nevertheless, that party appeared at the hearing and presented evidence
of his expenses and his inability to find employment. Id. Finally, even though the N.V.R. court
reversed the trial court’s order requiring the appellant to pay costs in that case, it specifically noted
-5-
04-19-00795-CV
that when a party makes a claim of inability to pay, he “bears the burden to prove, at the hearing,
his inability to afford costs.” Id.
Here, unlike in N.V.R., Rodriguez had notice of the hearing, but did not appear to present
evidence in support of his claimed inability to pay costs. As a result, the trial court did not abuse
its discretion by finding that Rodriguez did not meet his burden under Rule 145. In re J.P.N., 2018
WL 626526, at *3.
CONCLUSION
We affirm the trial court’s December 17, 2019 Order on Motion to Require the Appellant
to Prove the Inability to Pay Costs. We therefore order Rodriguez to pay the $205 filing fee for
this appeal within 15 days of this opinion. We caution Rodriguez that the failure to pay the filing
fee will result in the dismissal of his appeal. TEX. R. APP. P. 5, 42.3.
PER CURIAM
-6-