Opinion
NO. 12-20-00118-CV
07-15-2020
MARCELINO CRUZ, APPELLANT v. ADRIANA CRUZ AND IN THE INTEREST OF S.S.C., S.R.C., S.S.C. & J.L.C., CHILDREN, APPELLEE
APPEAL FROM THE 321ST JUDICIAL DISTRICT COURT SMITH COUNTY , TEXAS ORDER
On April 17, 2020, Marcelino Cruz, acting pro se, filed a notice of appeal from a final decree of divorce signed on March 30, 2020. Using the form approved by the Texas Supreme Court, Cruz filed a statement of inability to afford payment of court costs or appeal bond with this Court. Jeremy Coe, the attorney for Adriana Cruz, filed a contest. After a hearing, the Honorable Robert H. Wilson, Judge of the 321st District Court in Smith County, Texas signed an order denying indigent status. Cruz filed a "notice of appeal" from the order, which we construe as a motion under Texas Rule of Civil Procedure 145(g)(1) to challenge the trial court's order.
"Only the declarant may challenge an order issued by the trial court under this rule. The declarant may challenge the order by motion filed in the court of appeals with jurisdiction over an appeal from the judgment in the case." TEX. R. CIV. P. 145(g)(1). The court of appeals must rule on the motion at the earliest practicable time. TEX. R. CIV. P. 145(g)(4).
BACKGROUND
In his affidavit of inability to afford court costs, Cruz states that he has four dependents, ages eighteen, sixteen, fifteen, and eleven. The affidavit indicates that Cruz is not represented by legal aid, did not apply for representation by legal aid, and does not receive needs-based public benefits. He is self-employed and listed $2,000 as his total monthly income. Cruz listed the following property: $10,000 cash in receivership, $15 in a Chase Bank account, $12 in a Southside Bank account, and a 2000 Dodge truck valued at $700. He also listed the following in monthly expenses: $25 for rent/house payments/maintenance, $400 for food and household supplies, $200 for utilities and telephone, $25 for clothing and laundry, $50 for medical and dental expenses, $50 for insurance, $200 for transportation, auto repair, gas, and $1,050 for child/spousal support. He explained in the affidavit that he lives a "simple basic life." Under penalty of perjury, Cruz swore that he cannot afford to pay court costs.
At the indigency hearing, conducted via Zoom, Cruz told the trial court that it is difficult to obtain jobs right now and he did not know how he would eat if not for the food banks. The $2,000 monthly income listed in his affidavit did not signify what he was making as of the May 12, 2020 hearing. He wanted "fees waived" so that he could have "social justice for [his] case." He told the trial court that he has been self-employed as a painter for Amigos Painting, which is his primary source of income. He denied having other income of any kind and testified that the Dodge truck is his only source of transportation. Cruz acknowledged having several residential lots and that the cash in receivership was a reference to the lots in the event they could be sold. He stated, "I don't see how they're going to sell when that's my homestead." Cruz denied any rental income from the lots. He further acknowledged owning a Chevy van, which he valued at $300, and tools related to his painting business, including an old airless, brushes, rollers, a putty knife, a caulking gun, and some drop cloths, which he valued at $150 or $200.
This Court presumes that Cruz was referring to the 2020 COVID-19 pandemic.
The court reporter estimated that the record for the final divorce hearing totaled $1,020 to $1,050 at the regular page rate and $850 to $875 at the indigent county page rate. She added, however, that the reporter's record had not been requested, so she was unsure as to what portions Cruz wanted to include in the record. The record does not indicate that Adriana or her attorney made appearances at the hearing.
At the conclusion of the hearing, the trial court stated, "[B]ased on the assets that you have disclosed in your affidavit of indigence, namely the property, the several -- since you own several residential lots in Frankston, as well as a business with tools, equipment, and a vehicle, I don't believe I can classify you as indigent, sir." The trial court informed Cruz that he would be responsible for paying any fees to obtain the record to pursue his appeal. The trial court also informed Cruz of the option to contact Lone Star Legal Aid or to contact the court reporter to "work with her" and obtain some estimates. On June 10, the trial court signed an order finding that Cruz is not indigent and denying Cruz's affidavit of inability to pay costs. On June 29, the Smith County District Clerk filed the clerk's record with this Court. Aside from the transcript of the indigency hearing, the reporter's record has not yet been filed.
The clerk filed a supplemental record on July 13.
ANALYSIS
A party who is not excused by statute or the appellate rules from paying costs, i.e., filing fees charged by the appellate court, must pay--at the time an item is presented for filing--whatever fees are required by statute or Texas Supreme Court order. TEX. R. APP. P. 5, 20.1(a). A party who filed a statement of inability in the trial court is not required to pay costs in the appellate court unless the trial court overruled the party's claim of indigence. TEX. R. APP. P. 20.1(b)(1). A party who files a statement of inability cannot be required to pay costs, such as fees charged by the clerk or court reporter for preparation of the appellate record, except by order of the court as provided by Texas Rule of Civil Procedure 145. TEX. R. CIV. P. 145(a), (c). The declarant may not be required to pay costs without an oral evidentiary hearing, and the declarant bears the burden of providing evidence of his inability to afford costs. TEX. R. CIV. P. 145(f)(5). A trial court may order the declarant to pay costs only in four instances: (1) on motion by the clerk or any party, if the motion contains sworn evidence, not merely on information or belief, that the statement was materially false when made or is no longer true in material respects because of changed circumstances; (2) on motion by an attorney ad litem for a parent in certain family law cases; (3) on motion by the court reporter; or (4) on the court's own motion. TEX. R. CIV. P. 145(f). An 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)(6).
In the present case, the trial court denied Cruz's claim of inability to pay without making detailed findings in support of its decision. Under Rule 145, such findings are mandatory. See id. ; see also TEX. GOV'T CODE ANN. § 311.016(3) (West 2013) ("'[m]ust' creates or recognizes a condition precedent"); Helena Chem. Co. v. Wilkins , 47 S.W.3d 486, 493 (Tex. 2001) (the term "must" is "generally recognized as mandatory, creating a duty or obligation"). Because the trial court failed to comply with Rule 145's findings requirement, the trial court abused its discretion by ordering Cruz to pay costs. See In Interest of L .D.R., No. 10-17-00224-CV, 2017 WL 5181933, at *1 (Tex. App.—Waco Nov. 8, 2017, order) (per curiam) (order denying indigency claim not supported by detailed findings; appellate court ordered record due without payment).
We also note that it does not appear Cruz received 10 days' notice of the hearing. See TEX. R. CIV. P. 145(f)(5) (declarant must be given 10 days' notice of the hearing). The notice setting the May 12 hearing was signed on May 5 and filed May 8. Nevertheless, Cruz appeared at the hearing and at no time complained of inadequate notice. See e.g. Townley v . Lanier , No. 14-19-00447-CV, 2019 WL 2938897, at *1 (Tex. App.—Houston [14th Dist.] July 9, 2019, no pet.) (mem. op.) (per curiam) ("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").
We further note that Mr. Coe's contest does not appear to be sworn or otherwise comply with Rule 145(f)(1), and the trial court's order denying Cruz's indigency claim does not contain a ruling sustaining the contest. See TEX. R. CIV. P. 145(f)(1) & cmt ("the rule does not allow the clerk or a party to challenge a litigant's claim of inability to afford costs without sworn evidence that the claim is false"). Even so, the trial court could have ruled on Cruz's claim of indigence on its own motion, but absent detailed findings, this Court could only speculate as to the trial court's actions. See TEX. R. CIV. P. 145(f)(4) ("Whenever evidence comes before the court that the declarant may be able to afford costs, or when an officer or professional must be appointed in the case, the court may require the declarant to prove the inability to afford costs") & cmt. ("The trial court always retains discretion to require evidence of an inability to afford costs).
Accordingly,
It is ORDERED that Cruz may proceed without payment of filing fees or costs for the record, including fees charged by the clerk or court reporter for preparation of the appellate record.
It is FURTHER ORDERED that because the record does not indicate that Cruz filed a written designation with the court reporter as required by Texas Rule of Appellate Procedure 34.6(b)(1), Cruz shall request in writing that the official reporter prepare the reporter's record and that such request designate the exhibits and portions of the proceedings to be included in the record. The request must be filed with the Smith County District Clerk and submitted to the court reporter on or before July 22, 2020.
It is FURTHER ORDERED that, provided Cruz requests preparation of the reporter's record on or before July 22, the court reporter must file the reporter's record on or before August 14, 2020.
By: /s/_________
Katrina McClenny, Clerk