Opinion
No. 4-04-00539-CV
Delivered and Filed: November 9, 2005.
Appeal from the 166th Judicial District Court, Bexar County, Texas, Trial Court No. 1995-CI-04653, Honorable Michael P. Peden, Judge Presiding.
Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Phylis J. SPEEDLIN, Justice, Rebecca SIMMONS, Justice.
MEMORANDUM OPINION
Opinion on Indigency Determination
Debra Lopez Liva appeals the trial court's order sustaining the contest to her affidavit of indigence and request for a free reporter's record. Because we find that the trial court did not abuse its discretion in sustaining the contest, we affirm the trial court's order.
In an opinion dated December 8, 2004, we abated this appeal to the trial court to determine whether the trial court clerk sent a copy of the pauper's oath to the court reporter as required by Rule 20.1(d)(1), or whether the court reporter otherwise had actual notice of the pauper's oath. Tex.R.App.P. 20.1(d)(1); In the Matter of J.N.L., 158 S.W.3d 527 (Tex.App.-San Antonio 2004, no pet.). The trial court determined that the court reporter was not served with a copy of the pauper's oath and did not otherwise acquire actual knowledge of the filing. In accordance with our opinion and order, the trial court then permitted the court reporter to file an out-of-time contest to Liva's affidavit of indigence. The trial court heard the merits of the contest and denied Liva's request for a free reporter's record. See Tex.R.App.P. 20.1(i).
Liva argues that the trial court abused its discretion in sustaining the contest to the affidavit of indigence. The party filing an affidavit of inability to pay costs bears the burden of proving the allegations in the affidavit. Tex.R.App.P. 20.1(g). The test for indigence is whether a preponderance of the evidence shows that the party would be unable to pay costs "if he really wanted to and made a good faith effort to do so." Griffin Indus., Inc. v. Thirteenth Court of Appeals, 934 S.W.2d 349, 351 (Tex. 1996) (quoting Allred v. Lowry, 597 S.W.2d 353, 355 (Tex. 1980)). The trial court has complete discretion in its determination of indigency. Tafarroji v. State, 818 S.W.2d 921, 923 (Tex.App.-Houston [1st Dist.] 1991, no pet.). Such determination must be made on a case-by-case basis, and there are no strict standards by which to decide. Id. On appeal, we review the trial court's ruling under an abuse of discretion standard. White v. Bayless, 40 S.W.3d 574, 576 (Tex.App.-San Antonio 2001, pet. denied). To show a clear abuse of discretion, the appellant must show that, under the circumstances of the case, the facts and law permit the trial court to make but one decision. See Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992); Cronen v. Smith, 812 S.W.2d 69, 70 (Tex.App.-Houston [1st Dist.] 1991, orig. proceeding).
Although Liva focused her testimony on the fact that a prior accident left her 47% physically disabled, she also presented testimony that she is capable of working. At the hearing, Liva testified that she works five to ten hours a week for a nonprofit organization where she advocates for parents with special needs children. Liva stated that she charges the parents $15 an hour, although many of the parents do not have the money to pay. Liva further stated that she worked six or seven hours the week prior to the hearing. Moreover, Liva testified that she makes between $15-$20 an hour to perform contract work for attorneys. Liva also testified that she applied for a position with a law firm, but was not hired. She admitted that she had not interviewed for any other positions. The court reporter testified that the estimate for the reporter's record is $225.00, and one half of the fee is due as a deposit before she begins preparing the record.
These facts do not permit only one decision. Based on the evidence presented, the trial court impliedly found that Liva had not made a good faith effort to pay the costs for the record. Because such a finding is supported by the record, we hold that the trial court did not abuse its discretion in sustaining the contest to Liva's affidavit of indigence and denying Liva a free copy of the record. Accordingly, Liva is directed to file written proof that she has paid or made arrangements to pay the fee for the preparation of the reporter's record for this appeal within ten days from the date of this court's opinion and order. If Liva fails to provide such proof within ten days, Liva's brief will be due within thirty days from the date of this court's opinion and order, and the court will only consider those issues or points raised in appellant's brief that do not require a reporter's record for a decision. See Tex.R.App.P. 37.3(c).