Marcus A. Townley and Erin M. McCain v. Linda a Lanier ( 2019 )

Motion Granted; Reversed and Remanded and Memorandum Opinion filed
July 9, 2019.
In The
Fourteenth Court of Appeals
NO. 14-19-00447-CV
MARCUS A. TOWNLEY AND ERIN M. MCCAIN, Appellants
V.
LINDA A. LANIER, Appellee
On Appeal from the County Civil Court at Law No. 4
Harris County, Texas
Trial Court Cause No. 1077886
MEMORANDUM OPINION
Appellants filed a motion to review the trial court’s order sustaining the
court reporter’s challenge to appellants’ affidavits of indigency. See Tex. R. Civ. P.
145(g). Appellants’ primary contention is that they were not given adequate notice
of the hearing determining their indigency status. See Tex. R. Civ. P. 145(f)(5).
Background
On May 31, 2019, both appellants filed an affidavit of indigency along with
a notice of appeal. On June 5, 2019, the official court reporter filed a contest to the
appellants’ affidavits of indigency. See Tex. R. Civ. P. 145(f)(3). On the same day,
the court reporter sent appellants by certified mail a notice of hearing indicating
that the contest would be heard on June 11, 2019. Appellants did not attend the
hearing and the trial court sustained the court reporter’s contest by written order
dated June 11, 2019.
Applicable Law and Standard of Review
Texas Rule of Civil Procedure 145 exempts a party from paying court costs,
including the reporter’s fee, if the party files a statement showing he does not have
the funds to pay. See Tex. R. Civ. P. 145(a), (c); Abrigo v. Ginez, No. 14-18-
00280-CV, 2019 WL 2589877, at *2 (Tex. App.—Houston [14th Dist.] June 25,
2019, no pet. h.). However, certain persons, including the court reporter, may
challenge the statement of inability to pay costs by motion. Tex. R. Civ. P.
145(f)(1)-(4). The trial court must hold an “oral evidentiary hearing” on the motion
before ordering payment of costs, and the declarant must be given ten days’ notice
of the hearing. Tex. R. Civ. P. 145(f)(5). At the hearing, the party alleging
indigency bears the burden to prove inability to pay costs. Id. An order granting the
motion is reviewed for an abuse of discretion on appeal and will be affirmed unless
the record reflects the trial court acted in an arbitrary and unreasonable manner or
without reference to any guiding rules or principles. See Jackson v. Tex. Bd. Of
Pardons and Paroles, 178 S.W.3d 272, 275 (Tex. App.—Houston [1st Dist.] 2005,
no pet.). Generally, a complaint for appellate review must be preserved by specific
objection or motion in the trial court to allow the trial court an opportunity to
correct the error. See Tex. R. App. P. 33.1. However, a party who complains of
inadequate notice of a hearing and does not appear at the hearing may raise the
complaint for the first time following the hearing. In re B.T.G., No. 05-17-00521-
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CV, 2017 WL 2334243 at *1 (Tex. App.—Dallas 2017, no pet.) (mem. op.).
Discussion
Appellants argue they did not receive adequate notice of the hearing. A
review of the record reveals appellants are correct. The court reporter filed her
contest on June 5, 2019. The same day, she mailed a copy of the contest to
appellants by certified mail along with a notice of hearing, which set the contest for
hearing on June 11, 2019. Thus, appellants were provided with at most six days’
notice of the hearing. The ten day notice period is mandatory and appellants did
not receive sufficient notice. Tex. R. Civ. P. 145(f)(5) (“declarant must be given
ten days’ notice of the hearing”). Accordingly, we conclude the trial court abused
its discretion in granting the court reporter’s motion challenging appellants’
affidavits of indigence. See In re B.T.G., 2017 WL 2334243 at *2; Monroy v.
Estrada, 149 S.W.3d 847, 852-55 (Tex. App.—El Paso 2004, no pet.).
Conclusion
We grant appellants’ motion for review, reverse the trial court’s June 11,
2019 order sustaining the contest, and remand the contest to the trial court for a
hearing consistent with this opinion. The hearing shall be held within in thirty days
from the date of this opinion.
PER CURIAM
Panel consists of Justices Wise, Jewell, and Hassan.
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