David Hayes v. State

FILE COPY
CAUSE NO. 12-15-00194-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
DAVID HAYES, } APPEALED FROM THE
APPELLANT
V. } COUNTY COURT AT LAW NO 1
THE STATE OF TEXAS,
APPELLEE } HENDERSON COUNTY, TEXAS
ORDER
David Hayes has appealed from an “order destroying dogs and awarding costs.” On
July 30, 2015, he filed a notice of appeal, an affidavit of indigence, and a motion for a free
record pursuant to Texas Civil Practice and Remedies Code Section 13.003. On August 3, the
State of Texas, Appellee, filed a contest to Hayes’s affidavit, which the trial court sustained by
written order on August 13.
In a motion filed in this court on August 18, Hayes challenges the trial court’s order
sustaining the State’s contest. He requests that we overrule the order and direct that a free
statement of facts and clerk’s record be prepared for the appeal. We review an order sustaining a
contest to an affidavit of indigence for an abuse of discretion. Few v. Few, 271 S.W.3d 341, 345
(Tex. App.–El Paso 2008, pet. denied). A trial court abuses its discretion when its action is
arbitrary or unreasonable or without reference to any guiding rules or principles. Id.
Rule 20.1 of the Texas Rules of Appellate Procedure provides the procedural vehicle for
seeking a free record in a civil case and specifies the information that must be provided. TEX. R.
APP. P. 20.1. Section 13.003 of the Texas Civil Practice and Remedies Code is the statutory
underpinning for obtaining a clerk’s and reporter’s record without cost in a civil appeal. TEX.
CIV. PRAC. & REM. CODE ANN. § 13.003 (West 2002); Rhodes v. Honda, 246 S.W.3d 353, 355
(Tex. App.–Texarkana 2008, no pet.). Section 13.003 expressly provides that a court reporter or
clerk shall provide a record without cost only if
FILE COPY
(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.
TEX. CIV. PRAC. & REM. CODE ANN. § 13.003(a).
At the hearing on the State’s contest, counsel for each party presented argument
concerning the findings required by Section 13.003(a)(2). However, the trial court did not make
the required statutory findings. Moreover, the record does not reveal that Hayes requested the
findings, or objected to their absence. By failing to obtain or request the findings required by
Section 13.003, Hayes failed to meet the statutory requirements for receiving a record free of
charge and failed to preserve any complaint or error upon which the trial court’s order sustaining
a contest can be reversed. See Kindle v. United Svcs. Auto. Ass’n, 357 S.W.3d 377, 380 (Tex.
App.–Texarkana 2011, no pet.); Schlapper v. Forest, 272 S.W.3d 676, 678 (Tex. App.–Austin
2008, pet. denied); Rhodes v. Honda, 246 S.W.3d 353, 356 (Tex. App.–Texarkana 2008, no
pet.).
We note, however, that at the conclusion of the hearing, the trial judge announced that he
was not going to find Hayes indigent and explained that he did not believe Hayes had a right to
appeal the merits of the case. The judge expressed that “it would be kind of frivolous on my part
to order a record when I don’t think you have the right to appeal and it’s going to be kicked out
on review once you get there.”
Ordinarily, when a bench trial has been conducted, any party may request the court to
state in writing its findings of fact and conclusions of law. TEX. R. CIV. P. 296. A trial court’s
oral findings are not a substitute for written findings of fact and conclusions of law under Rule
296. See In re Doe, 78 S.W.3d 338, 339 n.2 (Tex. 2002); In the Interest of W.E.R., 669 S.W.2d
716, 716 (Tex. 1984). However, Section 13.003 does not state that the trial court’s findings must
be in writing.
Because Section 13.003 makes no reference to written findings, we will assume, for
purposes of analysis, that Section 13.003 does not require written findings, and that the judge’s
statement that ordering a record would be frivolous is an oral finding that Hayes’s appeal is
frivolous. But even with these assumptions, Hayes cannot prevail for two reasons. First, he does
not challenge the trial court’s oral finding that his appeal is frivolous. And second, even if his
FILE COPY
complaint were preserved, he does not address the absence, or the merits, of the second required
finding: that the statement of facts and the clerk’s transcript are necessary to decide the appeal.
See TEX. CIV. PRAC. & REM. CODE ANN. § 13.003(a)(2)(B). Therefore, we cannot conclude that
the trial court’s order sustaining the contest to the affidavit of indigence was an abuse of
discretion.
This order is not a final determination on the merits of this appeal. This order only
affirms the trial court’s order sustaining the State’s contest to Hayes’s affidavit of indigence.
Hayes must pay or make arrangements to pay for the reporter’s record and the clerk’s record
on or before September 28, 2015. He also must inform the office of the clerk of this court, by
letter dated no later than September 28, 2015, of what payment or arrangements to pay have
been made.
WITNESS the Honorable James T. Worthen, Chief Justice of the Court of Appeals, 12th
Court of Appeals District of Texas, at Tyler.
GIVEN UNDER MY HAND AND SEAL OF SAID COURT, at my office this the
28th day of August 2015, A.D.
CATHY S. LUSK, CLERK
12TH COURT OF APPEALS
By: ________________________________
Katrina McClenny, Chief Deputy Clerk