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

Motion Granted in Part and Denied in Part; Order filed August 27, 2019
In The
Fourteenth Court of Appeals
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NO. 14-19-00447-CV
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MARCUS A. TOWNLEY AND ERIN M. MCCAIN, Appellants
V.
LINDA A. LANIER, Appellee
On Appeal from the Co. Civil Ct. at Law No. 4
Harris County, Texas
Trial Court Cause No. 1077886
ORDER
Appellants filed a second “motion for review of trial court order” pursuant to
Rule 145(g) of the Texas Rules of Civil Procedure. See Tex. R. Civ. P. 145(g).
Appellants contend the trial court erred in denying their requests to proceed as
indigents in this appeal. Appellant Townley and appellant McCain each
individually filed an affidavit of indigency pursuant to Rule 145(a). See Tex. R.
Civ. P. 145(a). The court reporter filed a document entitled “contest of affidavit of
inability to pay costs,” which challenges McCain’s affidavit. We construe the
document as a motion by the court reporter to require declarant McCain to prove
the inability to afford costs. See Tex. R. Civ. P. 145(f)(3). The record does not
show that the court reporter or anyone else filed a similar motion requesting the
court to require declarant Townley to prove the inability to afford costs. Following
an evidentiary hearing at which neither Townley nor McCain appeared, the trial
court granted the court reporter’s challenge as to both Townley and McCain.
Appellants contend the trial court’s order was in error because they were not
provided sufficient notice of the hearing and because the court reporter filed a
contest only as to McCain’s affidavit. After reviewing the record, we affirm the
trial court’s order as to McCain, but reverse the order as to Townley. Because
Townley filed a statement of inability to pay costs in the trial court, he cannot be
required to pay costs in the appellate court except by order of the trial court as
provided by rule 145. Tex. R. App. P. 20.1(b)(1); Tex. R. Civ. P. 145(a). The trial
court may order the declarant to pay costs only as provided in rule 145(f), which
requires a motion by (1) the clerk or a party, (2) an attorney ad litem for a parent in
certain cases, (3) the court reporter, or (4) the court. None of the persons
contemplated by rule 145(f) filed a motion as to Townley’s statement. Therefore,
the trial court abused its discretion in denying Townley’s request to proceed as an
indigent. See Jackson v. Tex. Bd. Of Pardons and Paroles, 178 S.W.3d 272, 275
(Tex. App.—Houston [1st Dist.] 2005, no pet.) (abuse of discretion standard
applied in reviewing a 145(f) contest).
Appellant McCain is ordered to pay all her costs in this appeal. Appellant
Townley may proceed as an indigent.
PER CURIAM
Panel Consists of Justices Jewell, Bourliot, and Zimmerer.