Mariann Bacharach v. Rogelio Garcia ( 2015 )

Motion Denied; Order filed February 17, 2015.
In The
Fourteenth Court of Appeals
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NO. 14-14-00958-CV
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MARIANN BACHARACH, Appellant
V.
ROGELIO GARCIA, Appellee
On Appeal from the 157th District Court
Harris County, Texas
Trial Court Cause No. 2013-59386
ORDER
This is an accelerated appeal from the denial of appellant’s motion to dismiss
pursuant to Chapter 27 of the Texas Civil Practice and Remedies Code. Appellant filed
an affidavit of indigence in the trial court. The district clerk filed a contest to the
affidavit. On February 6, 2015, the trial court held a hearing on the district clerk’s contest
to appellant’s affidavit. Despite having been served with notice of the contest and the
hearing, appellant did not appear. At the conclusion of the hearing, the trial court signed
an order sustaining the contest to appellant’s affidavit of indigence.
On January 15, 2015, appellant filed a premature motion seeking review of the
trial court’s ruling.
When a contest is sustained and a review of the ruling is sought, the question is
whether an examination of the record as a whole establishes that the trial court abused its
discretion. See Jones v. Duggan, 943 S.W.2d 90, 93 (Tex. App.—Houston [1st Dist.]
1997, orig. proceeding). In ruling on the merits of the evidence at the trial court level, the
test for determining entitlement to proceed in forma pauperis is whether the
preponderance of the evidence shows that the appellant would be unable to pay the costs
of appeal, if she really wanted to and made a good faith effort to do so. See Griffin Indus.
v. Thirteenth Court of Appeals, 934 S.W.2d 349, 351 (Tex. 1996). To show a clear abuse
of discretion, the appellant must show that, under the circumstances of the case, the facts
and law permit the trial court to make but one decision. See Cronen v. Smith, 812 S.W.2d
69, 70 (Tex. App.—Houston [1st Dist.] 1991, orig. proceeding).
Texas Rule of Appellate Procedure 20.1 governs affidavits of indigence. It permits
a party to proceed with an appeal without advance payment of costs if (1) the party files
an affidavit of indigence in compliance with the rule; (2) either the claim of indigence is
not contested or the contest is not sustained; and (3) the party files a timely notice of
appeal. Tex. R. App. P. 20.1(a). The affidavit must identify the party filing it, state the
amount of costs the party can pay, if any, and contain complete information regarding
sources of income and property. Tex. R. App. P. 20.1(b). The affidavit must specifically
state:
(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.
Tex. R. App. P. 20.1(b)(1)–(11).
The Harris County District Clerk filed a contest to appellant’s affidavit of
indigence in which the district clerk alleged appellant’s affidavit failed in complying with
one or more of the requirements of Texas Rule of Appellate Procedure 20.1(b). At the
hearing on the contest, the trial court admitted evidence reflecting notice to appellant of
the contest and the hearing. Appellant did not appear at the hearing. No other evidence
was admitted. At the conclusion of the hearing, the trial court stated it would sign an
order sustaining the district clerk’s contest and ordering appellant to pay in full all costs
of the appeal.
The burden of proof at the hearing on the contest to the affidavit is on the
individual claiming indigence. See Tex. R. App. P. 20.1(g). A party claiming indigence
must prove 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.” Allred v. Lowry, 597 S.W.2d
353, 355 (Tex. 1980); White v. Bayless, 40 S.W.3d 574, 576 (Tex. App.—San Antonio
2001, pet. denied). We review a trial court’s determination of indigence status under an
abuse of discretion standard. White, 40 S.W.3d at 576.
Appellant did not appear at the hearing on the contest; therefore, the only evidence
before the trial court was her affidavit of indigence. However, appellant did not appear at
the hearing on the district clerk’s contest. “If a contest is filed, the party who filed the
affidavit of indigence must prove the affidavit’s allegations.” Tex. R. App. P. 20.1(g)(1).
see also Higgins v. Randall County Sheriff’s Office, 257 S.W.3d 684, 686 (Tex. 2008).
Because a timely contest was filed and a timely hearing was held, appellant was required
to prove the affidavit’s allegations. See Adams v. Ross, No. 01-11-00552-CV; 2012 WL
5381218 at *3 (Tex. App.—Houston [1st Dist.] Nov. 1, 2012, no pet.) (mem. op.). The
record reflects that appellant failed to appear at the hearing on the contest and present
evidence to establish her indigence. Because she failed to appear at the hearing and
present evidence, appellant 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 Tex. R. App. P. 20.1(g); Adams,
2012 WL 5381218 at *3.
Therefore, appellant is directed to pay or make arrangements to pay for the filing
fee and the record in this appeal. See Tex. R. App. P. 35.3(a)(2). Unless appellant pays
the $195.00 filing fee and provides this court with proof of payment for the record within
15 days of the date of this order, we will dismiss the appeal for want of prosecution. See
Tex. R. App. P. 42.3(c), 37.3(b).
PER CURIAM
Panel consists of Justices Christopher, Donovan, and Wise.