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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
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No. 06-17-00010-CV
02-07-2017
IN THE INTEREST OF N.L.P., A CHILD
On Appeal from the County Court at Law Hopkins County, Texas
Trial Court No. CV36802 Before Morriss, C.J., Moseley and Burgess, JJ.
Memorandum Opinion by Chief Justice Morriss MEMORANDUM OPINION
On December 7, 2016, Shane Perry filed an "Unsworn Declaration of Indigency" in the County Court at Law of Hopkins County in trial court cause number CV36802, styled In the Interest of N.L.P., a Child. On December 20, 2016, at a hearing on Perry's motion for temporary orders, the trial court determined that Perry was not indigent "as to court costs," although this determination was not documented in a written order. Perry filed a motion to reconsider the trial court's ruling on his claim of inability to pay costs. The trial court then issued a written order finding that Perry "is not indigent for the purpose of paying jury fees."
Perry timely filed a motion in this Court challenging the trial court's order, using the new procedures of Rule 145(g)(1) of the Texas Rules of Civil Procedure. See TEX. R. CIV. P. 145(g)(1). We review the challenged order for an abuse of discretion. See Garza v. Garza, 155 S.W.3d 471, 475 (Tex. App.—San Antonio 2004, no pet.).
Rule 145 of the Texas Rules of Civil Procedure was rewritten, effective September 1, 2016. Under the revised rule, "A party who files a Statement of Inability to Afford Payment of Court Costs cannot be required to pay costs except by order of the court as provided by this rule." TEX. R. CIV. P. 145(a). Perry's statement was made under penalty of perjury, as required by the Rule, and was filed by the clerk. The Rule further requires the declarant to provide, in the statement of inability to pay costs, evidence of his inability to afford costs. TEX. R. CIV. P. 145(e).
The comment to the Rule recognizes that "access to the civil justice system cannot be denied because a person cannot afford to pay court costs." TEX. R. CIV. P. 145 cmt. to 2016 change.
"The clerk may refuse to file a Statement that is not sworn to before a notary or made under penalty of perjury. No other defect is a ground for refusing to file a Statement," but if the statement contains a material defect or omission, the declarant may be directed by the court to correct or clarify the statement. TEX. R. CIV. P. 145(d). Perry's affidavit was filed by the clerk, and he was not directed to correct or clarify it.
The Rule provides examples of such evidence, including evidence that the declarant:
(1) receives benefits from a government entitlement program, eligibility for which is dependent on the recipient's means;
(2) is being represented in the case by an attorney who is providing free legal services to the declarant, without contingency, through:
(A) a provider funded by the Texas Access to Justice Foundation;
(B) a provider funded by the Legal Services Corporation; or
(C) a nonprofit that provides civil legal services to persons living at or below 200% of the federal poverty guidelines published annually by the United States Department of Health and Human Services;
TEX. R. CIV. P. 145(e).
(3) has applied for free legal services for the case through a provider listed in (e)(2) and was determined to be financially eligible but was declined representation; or
(4) does not have funds to afford payment of costs.
Here, Perry's declaration states that he is "unable to pay court costs associated with the above numbered cause," that he is not employed, and that he has no source of income. The declaration further states that Perry owns a 2001 Dodge truck, with an approximate loan balance of $1,800.00, and that he has monthly expenses—categorized in his declaration—of $2,415.00. Perry further explains that he closed his business in November 2016 and that, since that time, he has been seeking employment.
A person who files a statement of inability to pay court costs can be required to prove his inability to afford costs at an oral evidentiary hearing on the court's own motion. TEX. R. CIV. P. 145(f). In this case, the trial court raised and decided the issue of Perry's inability to pay costs at the hearing on temporary orders. There is no indication in the record before us, however, that Perry was provided the ten-day, mandatory hearing notice required by the Rule. Such notice is presumably required in light of the fact that the declarant bears the burden to prove the inability to afford costs at the hearing. Id.
The Rule permits the trial court to raise this issue on its own motion "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." TEX. R. CIV. P. 145(f)(4). There is no indication in this case that any evidence was presented to the trial court that Perry may be able to afford costs. Further, no officer or professional was appointed in the case.
"The declarant must be given 10 days' notice of the hearing. Notice must either be in writing and served in accordance with Rule 21a or given in open court." TEX. R. CIV. P. 145(f)(5).
At the hearing, Perry stated that he was unemployed and that he had recently closed his business. He further indicated that he had a total of $1,000.00 to live on, that he had no monthly income, and that his expenses included his vehicle payment, insurance payment, gasoline, and his mother's monthly medications. Perry was quite obviously caught off guard, stating that he did not bring his previously-filed affidavit to court with him. Nevertheless, there was no evidence offered to credibly dispute Perry's evidence of inability to afford court costs.
As explained in the comment to Rule 145, "[T]he 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.
Although the trial court ultimately issued a written order finding that Perry was not indigent for the purpose of paying jury fees, that order did not comply with Rule 145. When the trial court orders a declarant to pay court costs, it is required under Rule 145 to support that order with "detailed findings that the declarant can afford to pay costs." TEX. R. CIV. P. 145(f)(6).
Here, Perry filed a Statement of Inability to Pay Court Costs that complied with Rule 145. The record contains no indication that he was afforded proper notice of the hearing at which the statement was challenged, no controverting evidence was introduced at the hearing, and the order finding him not to be indigent was unsupported by findings as required by Rule 145. Given these circumstances, we find that an abuse of discretion occurred in requiring Perry to pay a jury fee or any costs of court.
After Perry filed his motion challenging the trial court's order, Kelli Boles filed a document entitled, "Objection to Perfection of Appeal," stating that Perry failed to file a notice of appeal in this Court. This objection is without merit. See TEX. R. CIV. P. 145(g)(1). Perry responded to Boles' objection and moved for sanctions. We decline to grant sanctions in this instance.
We reverse that order and remand this matter to the trial court for further proceedings consistent with this opinion.
Josh R. Morriss, III
Chief Justice Date Submitted: January 27, 2017
Date Decided: February 7, 2017