Summary
holding that trial court abused its discretion in sustaining contest to affidavit of indigence because party asserting indigency received inadequate notice of hearing
Summary of this case from Jackson v. North Forest Indep. Sch. Dist.Opinion
No. 05-10-01540-CV
Opinion issued November 8, 2011.
On Appeal from the 193rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. DC-08-12921-L.
Before Chief Justice WRIGHT and Justices FRANCIS and LANG-MIERS.
MEMORANDUM OPINION
Before the Court are Clovis Prince's motion to review the trial court's order sustaining American Bank of Texas's contest to his affidavit of indigence, American Bank's response to Prince's motion, and Prince's reply to American Bank's response. The trial court signed the order after Prince failed to appear at the June 30, 2011 hearing on the contest. Prince asserts he did not receive notice of the hearing until July 8, 2011, and, as a result, the court erred in sustaining the contest. American Bank replies, inter alia, that notice was adequate because Prince received notice by certified mail June 27, 2011, three days prior to the hearing.
We review a trial court's decision sustaining a contest to an affidavit of indigence for an abuse of discretion; that is, we look to see whether the court acted arbitrarily, unreasonably, or without any guiding rules or principles. See Jackson v. Tex. Bd. of Pardons and Paroles, 178 S.W.3d 272, 275 (Tex. App.-Houston [1st Dist.] 2005, no pet.). Under the rules of civil procedure, a party is generally entitled to three days' notice of a hearing if served in person, by agent, or by courier, or six days' notice if served by certified mail or telephonic document transfer. See Tex. R. Civ. P. 21, 21a; In Re C.S., 264 S.W.3d 864, 871 (Tex. App.-Waco 2008, no pet.).
No dispute exists here that Prince was served by certified mail or that the earliest date he could have received notice was June 27, 2011. Although required to provide Prince six days' notice because service was by certified mail, American Bank provided no more than three days' notice. This was inadequate, and the trial court abused its discretion in sustaining the contest. See Monroy v. Estrada, 149 S.W.3d 847, 852-55 (Tex. App.-El Paso 2004, no pet.). Because Prince had the burden at the hearing of proving the allegations in his affidavit once the contest was filed, see Tex. R. App. P. 20.1(g), and he received inadequate notice of the hearing, we grant Prince's motion. We reverse the trial court's order sustaining the contest and remand to the trial court to conduct another hearing on American Bank's contest.