Eric Drake v. Kristina Kastl ( 2013 )

ORDER REVERSED; and Opinion Filed October 24, 2013.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-13-00894-CV
ERIC DRAKE, Appellant
V.
SUNHEE PI, CHONG PARK, AND KRISTINA KASTL, Appellees
On Appeal from the County Court at Law No. 5
Dallas County, Texas
Trial Court Cause No. CC-09-01374-E
MEMORANDUM OPINION
Before Justices Fillmore, Lewis, and Brown
Opinion by Justice Brown
Before the Court is appellant’s motion for review of the trial court’s order sustaining the
Dallas County Clerk’s contest of his affidavit of indigence. We review a trial court’s order
sustaining a contest to an affidavit of indigence for an abuse of discretion. See Basaldua v.
Hadden, 298 S.W.3d 238, 241 (Tex. App.—San Antonio 2009, no pet.) (per curiam). A trial
court abuses its discretion if it acts without reference to any guiding rules or principles or in an
arbitrary and unreasonable manner. Id.
A party who is unable to pay costs on appeal may proceed without advance payment of
costs by filing in the trial court an affidavit of indigence detailing such information as the party’s
income, assets, debts, monthly expenses, and ability to obtain a loan for court costs. See TEX. R.
APP. P. 20.1(a)(2) & (b). The clerk, court reporter, or any party may challenge the affidavit by
filing a contest within ten days of the filing of the affidavit. See TEX. R. APP. P. 20.1(e)(1). If a
contest is filed, the trial court has ten days from the filing of the contest to sign an order either
sustaining the contest or extending the time for hearing it. See TEX. R. APP. P. 20.1(i)(2); In re
G.C., 22 S.W.3d 932, 932-33 (Tex. 2000) (per curiam). If the trial court fails to do either within
the ten day period, the allegations in the affidavit are deemed true, and the party is allowed to
proceed on appeal without advance payment of costs. See See TEX. R. APP. P. 20.1(i)(4); In re
G.C., 22 S.W.3d at 933.
Appellant filed an affidavit of indigence in the trial court on August 19, 2013. The Dallas
County Clerk filed a contest to appellant’s affidavit on the same date. On August 23, 2013,
appellant filed a motion to recuse the trial judge and a motion to continue the hearing on his
affidavit of indigence. In an order signed on August 27, 2013, the trial judge declined to recuse
himself and referred the recusal motion to the presiding judge of the Administrative Judicial
District. The presiding judge of the Administrative Judicial District signed an order denying
appellant’s motion to recuse on August 29, 2013.
In letters filed on August 29, 2013 and August 30, 2013, appellant notified the trial court
that he would be on vacation and unavailable from August 29, 2013 through September 11,
2013. The trial court conducted a hearing on the contest to the affidavit on September 13, 2013
and, on the same date, signed an order sustaining the contest. Appellant timely filed a motion in
this Court to review the trial court’s order. See TEX. R. APP. P. 20.1(j).
The contest to appellant’s affidavit of indigence was filed on August 19, 2013.
Accordingly, the trial court had until August 29, 2013 to sign an order either sustaining the
contest or extending the time for hearing the contest. This did not occur. Accordingly, we
conclude the trial court abused its discretion. In reaching this conclusion, we recognize that the
delay in conducting the hearing on the contest was to accommodate appellant at his request.
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However, the invited error doctrine does not have the effect of extending the deadline for a
hearing on a contest to a party’s affidavit of indigence. See Beatty v. Martin, 690 S.W.2d 94, 95
(Tex. App.—Dallas 1985, no writ).
Because the trial court ruled on the contest outside of the permissible time period, we
reverse the trial court’s order. The allegations in appellant’s affidavit of indigence are deemed
true and appellant is entitled to proceed without advance payment of costs. See TEX. R. APP. P.
20.1(i)(4).
/Ada Brown/
ADA BROWN
JUSTICE
130894F.P05
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