COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00127-CV
BEVERLY ANN GARVIN, APPELLANT
INDIVIDUALLY AND D/B/A
DENTON LIFESTYLES
V.
MEISSNER PUBLISHING, LTD., APPELLEES
HAROLD MEISSNER, LISA
MEISSNER, AND MINDY BRUCE
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FROM THE 431ST DISTRICT COURT OF DENTON COUNTY
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ORDER
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This court has received the record from the trial court=s hearing on the
contest to appellant Beverly Ann Garvin=s affidavit of indigency and reviewed it to
determine whether the trial court abused its discretion in sustaining the contest.
See In re Arroyo, 988 S.W.2d 737, 739 (Tex. 1998); In re C.D.S., 172 S.W.3d
179, 184 (Tex. App.––Fort Worth 2005, no pet.).
The uncontroverted evidence shows that appellant=s sole income is from
social security benefits, that she is unemployed but looking for work, that her
living expenses and part of her mortgage are being paid by her ex-husband, and
that she is unable to pay for even a partial record of $925. See In re Doe 4, 19
S.W.3d 322, 325–26 (Tex. 2000) (holding that trial court cannot ignore
uncontroverted evidence even if trial court does not find witness credible).
The test for indigency on appeal is whether an appellant shows by a
preponderance of the evidence that she would be unable to pay costs if she
really wanted to and made a good faith effort to do so. In re C.D.S., 172 S.W.3d
at 184. The supreme court has held that “[t]he rules allowing one to proceed
without being required to pay costs or give security therefor . . . do not require the
litigant to borrow money which cannot be repaid except by depriving the litigant
of the necessities of life.” Goffney v. Lowry, 554 S.W.2d 157, 159 (Tex. 1977);
Garza v. Garza, 155 S.W.3d 471, 476 (Tex. App.––San Antonio 2004, order).
Nor do those rules require a litigant to prove she has exhausted all potential
sources of charity. Garza, 155 S.W.3d at 476. Although appellant testified that
she had not attempted to obtain a loan on her home equity, she testified that
because of the $300,000 judgment against her and her credit history, she did not
think she would be able to obtain one. In addition, no one presented evidence
showing how appellant would be able to make payments on such a loan while
she was unemployed and receiving only social security as income. See Griffin
Indus., Inc. v. Honorable Thirteenth Court of Appeals, 934 S.W.2d 349, 351
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(“Requiring [appellant] to obtain formal loan rejections would exalt form over
substance . . . .”); see also Tex. R. App. P. 20.1(b)(2) (providing that affidavit
must provide court with income only of party and party’s spouse); Rodgers v.
Mitchell, 83 S.W.3d 815, 818 (Tex. App.––Texarkana 2002, no pet.) (“The court
must consider only the [appellant’s] personal financial condition, not those of his
parents, other relatives, friends, or employers.”).
Accordingly, we reverse the trial court=s order sustaining the contest and
hold that appellant is entitled to the reporter’s record on appeal without
prepayment of costs. See Tex. R. App. P. 20.1(k); Garza, 155 S.W.3d at 477;
Gonzalez v. Gonzalez, No. 08-01-00453-CV, 2003 WL 1759587, at *2–3 (Tex.
App.––El Paso 2003, no pet.) (mem. op.); see also Tex. R. App. P. 20.1(m)
(providing that if indigent party later becomes able to pay for costs, appellate
court may order party to pay costs to the extent of that party’s ability).
The reporter’s record on the merits is due Monday, November 5, 2012.
The clerk of this court is directed to transmit a copy of the order to the
attorneys of record, the trial court judge, the trial court clerk, and the court
reporter.
DATED September 21, 2012.
PER CURIAM
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