Cecilia Clinkscale v. Leiroi Mickele Daniels

Order issued January 2, 2015

In The

Court of Appeals

For The

First District of Texas

NO. 01-14-00968-CV

CECILIA CLINKSDALE, Appellant

V.

LEIROI MICKELE DANIELS, Appellee

On Appeal from the 113th District Court

Harris County, Texas

Trial Court Cause No. 2012-58724

MEMORANDUM ORDER

Appellant, Cecilia Clinksdale, filed a notice of appeal from the trial court’s

judgment of December 15, 2014. Clinksdale filed an affidavit of inability to pay

the costs of appeal on December 2, 2014. The district clerk filed a timely contest

to the affidavit. Appellant Clinksdale appeals the trial court’s order sustaining the

contest.

We affirm the trial court’s order sustaining the contest.

Standard of Review and Governing Legal Principles

Texas Civil Practice and Remedies Code section 13.003 sets out certain

requirements that must be met for an appellant to obtain a free record on appeal.

TEX. CIV. PRAC. & REM. CODE ANN. § 13.003(a) (West 2002). Section 13.003

states, in pertinent part, that a trial court clerk and court reporter shall provide

without cost a record for appeal only if:

(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.

Id.

The first of these requirements, to file an affidavit of inability to pay the

costs of the appeal, is governed by Rule 20.1 of the Texas Rules of Appellate

Procedure. Rule 20.1 allows a party to proceed on appeal without advance

payment of costs if (1) the party files an affidavit of indigence in compliance with

the rule, (2) the indigence claim is not contestable, the claim is not contested, or, if

contested, the contest is not sustained by written order, and (3) the party timely

files a notice of appeal. See TEX. R. APP. P. 20.1(a)(2).

The trial court clerk, court reporter, or any interested party may file a contest

to the affidavit of indigence, but must do so within 10 days after the date the

affidavit is filed. TEX. R. APP. P. 20.1(e). If a contest is filed, the trial court must

either conduct a hearing or sign an order extending the time to conduct a hearing

“within 10 days after the contest [is] filed.” TEX. R. APP. P. 20.1(i)(2).

If contested, the appellant bears the burden to prove indigence by a

preponderance of the evidence. Higgins v. Randall County Sheriff's Office, 257

S.W.3d 684, 686 (Tex. 2008); see TEX. R. APP. P. 20.1(g); Few v. Few, 271 S.W.3d

341, 345 (Tex. App.—El Paso 2008, pet. denied); Arevalo v. Millan, 983 S.W.2d

803, 804 (Tex. App.—Houston [1st Dist.] 1998, no pet.). Once the appellant

establishes a prima facie showing of indigence, the party contesting the affidavit

has the burden to offer evidence to rebut what was established. See Griffin Indus.,

Inc. v. Honorable Thirteenth Court of Appeals, 934 S.W.2d 349, 352 (Tex. 1996).

“The 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?’” In re C.H.C., 331 S.W.3d 426, 429 (Tex.

2011) (citing Higgins, 257 S.W.3d at 686).

Unless, within the period set for the hearing, the trial court signs an order

sustaining the contest, the affidavit’s allegations will be deemed true and the party

will be allowed to proceed without advance payment of costs. TEX. R. APP. P.

20.1(i)(4); see C.H.C., 331 S.W.3d at 429; Higgins, 257 S.W.3d at 688. When, as

in this case, the trial court sustains the contest to the appellant’s affidavit, the

appellant may obtain the record pertaining to the trial court’s ruling and may

challenge that ruling as part of his appeal. See In re Arroyo, 988 S.W.2d 737, 738–

39 (Tex. 1998).

We review the trial court’s order under an abuse of discretion standard.

White v. Bayless, 40 S.W.3d 576, 576 (Tex. App.—San Antonio 2001, pet.

denied). The trial court abuses its discretion if it acts without reference to any

guiding rules or principles or in an arbitrary or unreasonable manner. Id.

Analysis

Clinksdale filed her affidavit of indigence in the trial court on December 2,

2014. See TEX. R. APP. P. 20.1(a)(2)(A), (c)(1). In her affidavit, Clinksdale

addresses some of the factors required by Texas Rule of Appellate Procedure

20.1(b). TEX. R. APP. P. 20.1(b); see also Higgins, 257 S.W.3d at 687–88 (finding

affidavit sufficient even though information on all factors was not included).

Clinksdale avers that she is employed as an “adjunct instructor,” but does not

include her income from that employment as required by Texas Rule of Appellate

Procedure 20.1(b)(1). The first two pages of a SNAP benefits document was

attached to her affidavit showing monthly income of $1,336.05 in September and

October of 2014, but there is no evidence of whether this reflects her current

income. Clinksdale further avers her expenses include $65.00 per month for a

cellular phone, $10.00 a month for a virtual fax, $40.00 per month for laundry,

$25.00 to $50.00 per month in job search expenses. Clinksdale also avers she

owns a 2009 Toyota Corolla and has at least $525.00 in banking accounts with

Wells Fargo.

A timely contest to Clinksdale’s affidavit of indigence was filed on

December 5, 2014. See TEX. R. APP. P. 4.1(a), 20.1(e). The contest was set for

submission on December 15, 2014—ten days after the contest was filed. See TEX.

R. APP. P. 20.1(i)(2)(A) (requiring hearing to be held or order extending time for

hearing to be signed within 10 days of filing of contest). Clinksdale did not

respond to the notice of submission or request a hearing. The trial court timely

signed an order sustaining the district clerk’s contest to Clinksdale’s affidavit of

indigence. See TEX. R. APP. P. 20.1(i)(4).

On December 23, 2014 Clinksdale filed “Appellant’s Notice of Appeal on

the Denial of Pauper’s Oath” challenging the trial court’s order. Because a timely

contest was filed, Clinksdale was required to prove the affidavit’s allegations. See

TEX. R. APP. P. 20.1(g). The record shows Clinksdale failed to request a hearing

and therefore failed to present any evidence to establish her indigence1 or to

establish the cost of the appellate record. Because she did not present evidence,

Clinksdale cannot show that she sustained her burden of proving the allegations in

her affidavit and we cannot conclude that the trial court abused its discretion in

sustaining the contest to the affidavit. See id.

Based on the lack of information on monthly income, Clinksdale’s

discretionary spending, her assets, and the complete lack of evidence regarding the

cost of the appellate record, the trial court could reasonably conclude that

1

If Clinksdale had been incarcerated, the affidavit would be considered as evidence

and would be sufficient to meet her “burden to present evidence without [her]

attending the hearing.” TEX. R. APP. P. 20.1(g)(1). Because she was not

incarcerated, however, she was required to “prove the affidavit’s allegations.” Id.;

cf. TEX. R. EVID. 802 (“Hearsay is not admissible except as provided by statute or

these rules or by other rules prescribed pursuant to statutory authority.”); Adams v.

Ross, 2012 WL 5381218, at *2 (Tex. App.—Houston [1st Dist.] November 1,

2012) (memorandum order); Lewallen v. Hardin, 563 S.W.2d 356, 357 (Tex. Civ.

App.—Dallas 1978) (“The general rule is that affidavits have been held to be

inadmissible hearsay upon the final trial of a case, and without probative force.”).

Clinksdale is able to pay the filing fee, the clerk’s fee, and the reporter’s fee. See

C.H.C., 331 S.W.3d at 429 (considering whether record, in whole, shows by

preponderance that “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, 241–42 (Tex. App.—San Antonio

2009, no pet.) (affirming trial court’s order sustaining contest when appellant’s

affidavit stated he made $500 per month, appellant testified he was not working as

much as he should, and appellant’s expenses were $390 per month).

On the record before this Court, we cannot conclude that the trial court

abused its discretion by sustaining the contest to Clinksdale’s affidavit of

indigence. See TEX. R. APP. P. 20.1(g); C.H.C., 331 S.W.3d at 429; A.L.V.Z., 352

S.W.3d at 571; Basaldua, 298 S.W.3d at 241–42.

Accordingly, we affirm the trial court’s order sustaining the contest to the

affidavit of indigence.

PER CURIAM

Panel consists of Justices Keyes, Massengale, and Brown.