Opinion
11-24-00038-CV
03-28-2024
IN RE COMMITMENT OF EARL BURT BARNES, III
On Appeal from the 259th District Court Jones County, Texas Trial Court Cause No. 025619
Panel consists of: Bailey, C.J., Trotter, J., and Williams, J.
ORDER
PER CURIAM
Appellant has filed a motion to review the trial court's order requiring the State Counsel for Offenders, rather than Jones County, to pay for the clerk's record and the court reporter's record in this appeal. Appellant requests that we modify the trial court's order to require the trial court clerk and the court reporter to file their respective records at Jones County's expense.
In the trial court, Appellant filed a motion for preparation of the clerk's record and the reporter's record and filed an affidavit of inability to pay costs pursuant to Section 13.003(a)(1) of the Texas Civil Practice and Remedies Code and Rule 145 of the Texas Rules of Civil Procedure. See Tex. Civ. Prac. & Rem. Code Ann. § 13.003(a) (West 2017); Tex.R.Civ.P. 145(b). Section 13.003(a) states that "a court reporter shall provide without cost a statement of facts and a clerk of a court shall prepare a transcript for appealing a judgment" if an affidavit of inability to pay the appeal costs is filed, and the trial court finds that (1) the appeal is not frivolous and (2) the statement of facts and transcript are necessary to decide the issue presented on appeal. Civ. Prac. & Rem. § 13.003(a).
The trial court granted Appellant's motion, noting the "State's non-opposition," and found that Appellant's appeal was not frivolous and that the records were necessary to decide the issues presented by the appeal. However, notwithstanding Section 13.003's requirement that the trial court clerk and the court reporter provide the records without cost in this circumstance, the trial court ordered the clerk and the court reporter to submit their fees for payment "to the appropriate authority of the State Counsel for Offenders."
In Appellant's "Indigency Notice" filed with this court, Appellant states that an attorney with the Office of State Counsel for Offenders represented him in the trial court "after confirmation of his (appellant's) indigency status." See Tex. Health & Safety Code Ann. § 841.005 (West Supp. 2023) (requiring the Office of State Counsel for Offenders to represent indigent persons subject to civil commitment proceedings under Chapter 841, or the trial court to appoint other counsel if such office is unable to represent the indigent person). There is no indication that the trial court has rejected the affidavit of indigence or that the clerk, court reporter, or other party has challenged the affidavit. See Tex. R. Civ. P. 145(c); Campbell v. Wilder, 487 S.W.3d 146, 151 (Tex. 2016) ("An uncontested affidavit of inability to pay is conclusive as a matter of law.") (quoting Equitable Gen. Ins. Co. of Tex. v. Yates, 684 S.W.2d 669, 671 (Tex. 1984)).
We note that Rule 145 of the Texas Rules of Civil Procedure governs the payment of costs for fees charged by the court, including filing fees and fees charged by the trial court clerk or the court reporter for preparation of the appellate record. Tex.R.Civ.P. 145(a); Tex.R.App.P. 20.1(a). Under that rule, while a clerk, the reporter, or a party may file a motion to require the declarant to pay costs and the court may require the declarant to prove the inability to afford costs in certain circumstances inapplicable to this case, when, as here, a sworn Statement of Inability to Afford Payment of Court Costs has been filed, the declarant must not be ordered to pay costs unless the procedural requirements in Rule 145(f) have been satisfied. Tex.R.Civ.P. 145(e), (f) (providing for notice, an evidentiary hearing, and findings). Because the order at issue requires the Office of State Counsel for Offenders, rather than Appellant himself (the "declarant" in the affidavit), to pay the costs for the appellate record, Rule 145 provides helpful guidance but does not provide a solution to the specific issue presented by the trial court's order.
Given that (1) Appellant was indigent and represented by the Office of State Counsel for Offenders at trial, (2) the trial court found that the appeal is not frivolous and that the records were needed to decide the issues on appeal, and (3) neither the clerk, the court reporter, nor a party has filed an objection or motion to require payment of costs, we hold that Appellant is entitled to a free record on appeal. See Civ. Prac. & Rem. § 13.003(a). In this regard, ordering the Office of State Counsel for Offenders to pay for the appellate record does not constitute a record provided "without cost" to Appellant as contemplated by Section 13.003 and Rule 145. See In re Commitment of Metcalf, 579 S.W.3d 828, 829 n.3 (Tex. App.-Texarkana 2019, no pet.) (ordering the Office of State Counsel for Offenders to pay the court reporter's fees did not constitute a "free record").
Accordingly, we grant Appellant's motion to review the trial court's order but deny his request for us to modify the trial court's order to require the trial court clerk and the court reporter to prepare and file the records at Jones County's expense. We direct the district judge of the 259th District Court of Jones County to issue an amended order and ensure that Appellant receives a free record for purposes of his appeal in this cause. The district clerk and the court reporter are requested to file their respective records on or before April 4, 2024.