Ronald Dean Strickland v. Iheartmedia, Inc., Stephen L. Schaefer, and John and Jane Does ( 2022 )

Fourth Court of Appeals
San Antonio, Texas
OPINION
No. 04-21-00284-CV
Ronald Dean STRICKLAND,
Appellant
v.
IHEARTMEDIA, Inc. and Stephen L. Schaefer,
Appellees
From the 198th Judicial District Court, Bandera County, Texas
Trial Court No. CVDO-XX-XXXXXXX
Honorable M. Rex Emerson, Judge Presiding
Opinion by: Rebeca C. Martinez, Chief Justice
Sitting: Rebeca C. Martinez, Chief Justice
Patricia O. Alvarez, Justice
Luz Elena D. Chapa, Justice
Delivered and Filed: March 9, 2022
REVERSED
Appellant Ronald Dean Strickland appeals the trial court’s order finding him not indigent
and denying his request for a free record on appeal. We conclude the trial court abused its
discretion in sustaining the contest to appellant’s affidavit of indigence. Therefore, we reverse the
trial court’s order and direct the court reporter to prepare the record without the payment of costs.
04-21-00284-CV
BACKGROUND
On March 23, 2021, appellant filed an original petition against appellees iHeartMedia, Inc.
and Stephen L. Schaefer. 1 Appellees answered and filed a motion to dismiss appellant’s claims
for failure to state a cause of action, pursuant to Rule 91a of the Texas Rules of Civil Procedure.
See TEX. R. CIV. P. 91a. On July 13, 2021, the trial court granted the Rule 91a motion to dismiss.
That same day, appellant filed a Statement of Inability to Afford Payment of Court Costs or an
Appeal Bond. Appellees timely filed a challenge to appellant’s affidavit of indigence. Appellant
filed a response. Thereafter, appellees filed a supplement to their challenge, with additional
arguments and attachments.
On September 16, 2021, the trial court held a hearing on appellees’ challenge and, the next
day, signed an order sustaining the challenge. Appellant then timely filed a challenge to the trial
court’s order. See id. R. 145(g) (authorizing challenge in court of appeals). We ordered the court
reporter to file the reporter’s record from the September 16, 2021 hearing. See id. R. 145(g)(3).
In our court, appellant has filed a “Brief on the Merits,” which we construe as appellant’s challenge
to the trial court’s order requiring him to pay costs. Appellees have filed a response, and appellant
has filed a reply to appellees’ response and a “Response to the Reporter’s Record.” The trial court
clerk has already filed the clerk’s record in this appeal. Therefore, the dispute over costs relates
to whether appellant must pay the costs for preparation of the reporter’s record.
STANDARD OF REVIEW AND APPLICABLE LAW
A party who files a statement of inability to afford costs cannot be required to pay costs,
such as the fee for the reporter’s record, unless certain procedural requirements have been satisfied.
1
Appellant also listed “John and Jane Does” as defendants but did not state any allegations related to unknown persons.
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See TEX. R. CIV. P. 145(a), (f). 2 First, the party who files the statement, also known as the
“declarant,” must be given 10 days’ notice of an oral evidentiary hearing, and such a hearing must
be held. See id. R. 145(f)(1). “At the hearing, the burden is on the declarant to prove the inability
to afford costs.” Id. “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?” Higgins v. Randall Cty. Sheriff’s Office, 257 S.W.3d 684, 686 (Tex. 2008) (citations
omitted). 3 Second, “[a]n order requiring the declarant to pay costs must be supported by detailed
findings that the declarant can afford to pay costs.” TEX. R. CIV. P. 145(f)(2). Third, “[a]n order
requiring the declarant to pay costs must state in conspicuous type: ‘You may challenge this order
by filing a motion in the court of appeals within 10 days after the date this order is signed. See
Texas Rule of Civil Procedure 145.’” Id. R. 145(f)(4). 4
We review a trial court’s order sustaining a contest to an affidavit of indigence for an abuse
of discretion. White v. Bayless, 40 S.W.3d 574, 576 (Tex. App.—San Antonio 2001, pet. denied).
The trial court abuses its discretion if its “ruling is so arbitrary and unreasonable as to be clearly
wrong.” Id. (citing Arevalo v. Millan, 983 S.W.3d 803, 804 (Tex. App.—Houston [1st Dist.] 1998,
no pet.)). As the fact finder, the trial court is the sole judge of the credibility of the witnesses and
2
Rule 145 has been amended several times in recent years. Its most recent amendments became effective on
September 1, 2021. See Final Approval of Amendments to Texas Rules of Civil Procedure Rule 145, 502.3, and 506.4,
Misc. Docket No. 21-9077 (July 9, 2021). We apply the current version of Rule 145 because appellees’ challenge
was pending on September 1, 2021. Cf. Final Approval of Revisions to the Texas Rules of Civil Procedure and the
Texas Rules of Appellate Procedure and of a Form Statement of Inability to Afford Payment of Court Costs, Misc.
Docket No. 16-9122 (Aug. 31, 2016) (amending Rule 145, effective September 1, 2016, stating: “The amended rules
apply to any contest of, or challenge to, a claim of inability to afford payment of court costs that is pending on
September 1.”).
3
The comment to the 2016 changes to the Rule states: “The issue is not merely whether a person can pay costs, but
whether the person can afford to pay costs. A person may have sufficient cash on hand to pay filing fees, but the
person cannot afford the fees if paying them would preclude the person from paying for basic essentials, like housing
or food.” TEX. R. CIV. P. 145 cmt. to 2016 change.
4
There is a fourth procedural requirement related to partial payment of costs and installment payments that is not
relevant to this challenge. See TEX. R. CIV. P. 145(f)(3).
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evidence. See In re A.R., 236 S.W.3d 460, 471 (Tex. App.—Dallas 2007, no pet.) (op. on reh’g).
However, a trial court may not completely disregard a declarant’s evidence of inability to pay if it
is the only positive evidence adduced before the trial court. See Sansom v. Sprinkle, 799 S.W.2d
776, 778 (Tex. App.—Fort Worth 1990, orig. proceeding). An uncontested affidavit of indigence
entitles a declarant to proceed without advance payment of costs. See Higgins, 257 S.W.3d at
688–89.
DISCUSSION
Appellant asserts two challenges to the trial court’s order. First, he argues the trial court
erred in excluding evidence at the September 16, 2021 hearing. This complaint relates to
appellant’s inability to participate in the trial court’s hearing, which was conducted via Zoom
videoconference. Second, appellant argues “[t]here is no factual[ly] sufficient evidence” to
support the trial court’s order. Appellant’s second argument is dispositive.
On this record, we agree there is no evidence to support the trial court’s order and, appellant
has carried his burden to prove his inability to afford costs. See TEX. R. CIV. P. 145(f)(1). The
only evidence in the record of appellant’s inability to pay costs are sworn affidavits filed by
appellant. Rule 145 requires a party asserting an inability to pay court costs to file a sworn
Statement of Inability to Afford Payment of Court Costs on a form that is approved by the supreme
court or another sworn document containing the same information. Id. R. 145(b). A “sworn”
statement “is one that is signed before a notary or made under penalty of perjury.” Id. Appellant
filed a sworn statement on the supreme court’s approved form. Appellant’s sworn statement
includes checkmarks to indicate that appellant “receive[s] these public benefits/government
entitlements that are based on indigency: . . . Food stamps/SNAP.” 5
5
Although appellant did not state the amount per month of his public benefit in food stamps, which is asked for on
the form, his statement is sufficient to invoke Rule 145. Rule 145(c)(2) states that the clerk “may return a Statement
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After appellees filed their challenge to appellant’s affidavit, appellant filed a response and
attached a copy of his food stamp card. Appellant signed his name beneath a declaration averring
that the contents of his response are based on personal knowledge and are “true and correct” “under
penalty of perjury.” Rule 145(d) advises that a declarant should submit with the statement any
available evidence of inability to pay. Id. R. 145(d). An attachment demonstrating that the
declarant receives benefits from a means-tested government entitlement program is “prima facie
evidence” of the declarant’s inability to afford payment of costs. Id. R. 145(d)(1); see Booker v.
Mahmoudi, No. 05-19-00048-CV, 2019 WL 2266667, at *3 (Tex. App.—Dallas May 24, 2019,
no pet.) (After declarant established prima facie case that he was financially unable to pay costs,
“it was incumbent that evidence be presented that other funds [were] available to [declarant].”).
Against this prima facie evidence, there is no competent evidence in the record. Rule
145(e) requires that a challenge to a statement of indigence filed by a party “must contain sworn
evidence—not merely allegations—either that the Statement was materially false when made or
that because of changed circumstances, it is no longer true.” TEX. R. CIV. P. 145(e)(1). The 2016
comments to the Rule underline the importance of a sworn challenge: “[T]he rule does not allow
. . . a party to challenge a litigant’s claim of inability to afford costs without sworn evidence that
the claim is false.” Id. R. 145 cmt. to 2016 change. Neither appellees’ initial challenge nor their
supplement to the challenge contains sworn evidence. Appellees’ initial challenge contains no
evidence whatsoever. Appellees’ supplement contains no sworn evidence: their attachments were
not verified or otherwise sworn to. Cf In re A.M., 557 S.W.3d 607, 609 (Tex. App.—El Paso 2016,
for correction only if it is not sworn—not for failure to attach evidence or any other reason.” TEX. R. CIV. P. 145(c)(2);
cf. Abrigo v. Ginez, 580 S.W.3d 416, 420 (Tex. App.—Houston [14th Dist.] 2019, no pet.) (concluding statement was
sufficient to invoke the protections of Rule 145 where trial court did not direct declarant to correct or clarify statement).
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no pet.) (holding sworn statement that counsel had a “good faith belief” that declarant’s statements
were materially false or no longer true was not sworn evidence).
At the hearing on September 16, 2021, appellees did not move to admit evidence, and the
trial court did not admit any evidence or take judicial notice of any fact. Cf. Sansom, 799 S.W.2d
at 777 (“It is true that the trial judge may have taken judicial notice of the evidence produced at
the prior trial; however, the record on appeal does not indicate that he did.”). Moreover, the trial
court did not support its order requiring appellant to pay costs with “detailed findings that the
declarant can afford to pay costs.” See TEX. R. CIV. P. 145(f)(2); cf. In re L.A.V., 631 S.W.3d 932(Tex. App.—Houston [14th Dist.] 2021, no pet.) (Spain, J., dissenting) (disagreeing that appellate
court could remand for missing findings required by Rule 145(f)(2)). 6
Ultimately, we are left with only prima facie evidence of appellant’s inability to pay, which
was established by sworn evidence that appellant received food stamps. See TEX. R. CIV. P.
145(d)(1). Appellees’ challenge was merely allegations without evidence and insufficient under
the Rule to contest appellant’s affidavit or controvert his proof. See id. R. 145(e)(1). “An
uncontested affidavit of inability to pay is conclusive as a matter of law.” Equitable Gen. Ins. Co.
of Tex. v. Yates, 684 S.W.2d 669, 671 (Tex. 1984). “It is an abuse of discretion for any judge . . .
to order costs in spite of an uncontested affidavit of indigence.” Campbell v. Wilder, 487 S.W.3d
146, 152 (Tex. 2016); see also Abrigo, 580 S.W.3d at 419; In re Sosa, 980 S.W.2d 814, 816 (Tex.
App.—San Antonio 1998, no pet.). Because appellant presented prima facie evidence that he was
unable to afford the costs on appeal, appellees presented no sworn challenge, and the trial court
neither admitted evidence at the hearing or made detailed findings, we hold the trial court’s
determination that appellant could afford to pay court costs was “so arbitrary and unreasonable as
6
The trial court’s order also does not state that appellant had a right to appeal the order, as required by Rule 145(f)(4).
See TEX. R. CIV. P. 145(f)(4).
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to be clearly wrong.” Arevalo, 983 S.W.2d at 804; see In re N.L.P., No. 06-17-00010-CV, 2017
WL 490701, at *2 (Tex. App.—Texarkana Feb. 7, 2017, no pet.) (mem. op.) (holding trial court
abused its discretion by requiring party to pay costs where affidavit of indigency complied with
Rule 145, notice of hearing was not provided in accordance with Rule, no controverting evidence
was introduced at hearing, and trial court’s order was unsupported by findings); Sansom, 799
S.W.2d at 778 (requiring trial court to withdraw order sustaining contest because appellant
presented evidence supporting indigency and no evidence rebutted appellant’s testimony).
CONCLUSION
We reverse the trial court’s order requiring appellant to pay costs.
Rebeca C. Martinez, Chief Justice
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