Opinion
No. 04-08-00022-CV
Delivered and Filed: April 23, 2008.
Appeal from the 225th Judicial District Court, Bexar County, Texas, Trial Court No. 2007-CI-02712, Honorable Peter Sakai, Judge Presiding.
AFFIRMED.
Sitting: KAREN ANGELINI, Justice, SANDEE BRYAN MARION, Justice, PHYLIS J. SPEEDLIN, Justice.
MEMORANDUM OPINION
Appellant, Adam E. Salazar, challenges the trial court's order sustaining the contests filed to his affidavit of indigence. We affirm the trial court's order.
A party may proceed on appeal without advance payment of costs if: (1) he files an affidavit of indigence in compliance with Texas Rule of Appellate Procedure 20.1; (2) his claim of indigence is not contested or the contest is not sustained; and (3) he timely files a notice of appeal. See Tex. R. App. P. 20.1(a)(1)-(3). The affidavit must identify the party filing it and must state what amount of costs, if any, the party can pay. Id. 20.1(b). It must also contain complete information about the following:
(1) the nature and amount of the party's current employment income, government-entitlement income, and other income;
(2) the income of the party's spouse and whether that income is available to the party;
(3) real and personal property the party owns;
(4) cash the party holds and amounts on deposit that the party may withdraw;
(5) the party's other assets;
(6) the number and relationship to the party of any dependents;
(7) the nature and amount of the party's debts;
(8) the nature and amount of the party's monthly expenses;
(9) the party's inability to obtain a loan for court costs;
(10) whether an attorney is providing free legal services to the party without a contingent fee; and
(11) whether an attorney has agreed to pay or advance courts costs.
Id.
The trial court clerk, the court reporter, or any party may challenge the claim of indigence by filing a contest to the affidavit. Id. 20.1(e). If a contest is filed, the party who filed the affidavit of indigence must prove the affidavit's allegations. Id. 20.1(g).
At the trial court level, the test for indigence is whether the appellant shows by a preponderance of the evidence that he would be unable to pay the costs of appeal if he "really wanted to and made a good faith effort to do so." Arevalo v. Millan, 983 S.W.2d 803, 804 (Tex.App.-Houston [1st Dist.] 1998, no pet.) (quoting Allred v. Lowry, 597 S.W.2d 353, 355 (Tex. 1980)). On appeal, we review the trial court's decision for abuse of discretion. In re Smith, 70 S.W.3d 167, 168 (Tex.App.-San Antonio 2001, no pet.); Arevalo, 983 S.W.2d at 804.
Here, Salazar timely filed his notice of appeal in the trial court on December 26, 2007, but did not file an affidavit of indigency as required by Rule 20.1(c)(1). On January 9, 2008, Salazar filed his notice of appeal in this court and, for the first time, filed a copy of his affidavit of indigency but did not serve a copy on all parties to the proceeding in accordance with Rule 9.5. Tex. R. App. P. 9.5. Therefore, the court reporter and other parties to this proceeding did not immediately learn of Salazar's intent to proceed as an indigent. Salazar also filed a request for a reporter's record from various hearings. Based on the Texas Supreme Court's decision in Higgins v. Randall County Sheriff's Office, 193 S.W.3d 898 (Tex. 2006), Salazar's right to proceed on appeal without the payment of fees had to be decided despite Salazar's failure to comply with Rule 20.1(c)(1). See id. 20.1 (c)(1); Reule v. Carreon, No. 14-06-00163-CV, 2007 WL 64180, at *1 (Tex.App.-Houston [14th Dist.] Jan. 11, 2007, pet. denied) (mem. op.).
Upon learning of the contest, appellee, SCI Texas Funeral Services, Inc., d/b/a Roy Akers Zizik Kearns Funeral Chapels and d/b/a Sunset Northwest Chapel, filed a contest to Salazar's affidavit on February 12, 2008, and on February 14, 2008, the trial court held a hearing on the contest but did not enter an order. All parties, including Salazar, were present and participated at this hearing. On February 26, 2008, we abated this appeal and ordered the trial court to determine the merits of the contest. Id. 20.1 (h). Based on the evidence presented at the prior hearing, the trial court entered its order on March 6, 2008, finding Salazar's affidavit of inability insufficient and lacking the requirements of Rule 20.1(b). Id. 20.1 (b). On March 28, 2008, we reinstated this appeal and based on the trial court's ruling, ordered Salazar to provide written proof to this court that the clerk's fee had been paid or arrangements had been made to pay the clerk's fee.
On February 21, 2008, appellee, SCI Texas Funeral Services, Inc., filed an amended contest to Salazar's affidavit of indigency, and on February 26, 2008, appellee, Robert D. Ross, M.D., filed a motion joining in appellee's amended contest to Salazar's affidavit of indigency.
Currently pending before the court are: (1) Salazar's "Amended Pauper's Oath and Affidavit of Indigence" which is unsigned and not sworn to; (2) Salazar's "Urgent Motion in Support of Appeal of Trial Court's Ruling on Contest of Affidavit of Indigence and Waiver of Oral Argument"; and (3) Salazar's "Urgent Motion for Rehearing or Reconsideration of Conflicting Order and Waiver of Oral Argument". Salazar appeals the trial court's order sustaining the contests, maintaining that the trial court lacked jurisdiction to hold the hearing and enter its order, he was denied due process, and the trial court ignored his amended affidavit filed after the hearing but before the trial judge entered its order. Without ordering briefing by the parties, we now review the trial court's order for abuse of discretion. In re Smith, 70 S.W.3d at 168.
Although the trial court held a hearing on the contest after this court's jurisdiction was invoked, the trial court did not enter its order at that time. Instead, the trial court took no further action on the contest until after this court abated the appeal and ordered the trial court "to determine the merits of the contest." Id. 20.1(I). Upon obtaining jurisdiction, the trial court entered an order that determined the merits of the contest based on the February 14, 2007 hearing. Although Salazar complains that he was denied due process because the order was entered without notice, the trial court was not ordered to conduct another hearing because Salazar was present and participated at the hearing on February 14, 2008, and further, was afforded the opportunity to present evidence and arguments relating to his affidavit.
Salazar further argues that the trial court ignored his amended affidavit of indigence, along with the attached documents, which Salazar filed on February 26, 2008, subsequent to the hearing. However, unlike Salazar's original affidavit, Salazar's "Amended Pauper's Oath and Affidavit of Indigence" was not signed or sworn to in accordance with Rule 9.1(b). See Tex. R. App. P. 9.1 (b); see also Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984) (an affidavit is not sufficient unless the statements are direct and unequivocal and perjury can be assigned upon them). Further, Salazar's amended "affidavit" does not allege that his financial status changed in any way since the February 14, 2008 hearing.
The issue before the trial court was whether Salazar showed his indigence by a preponderance of the evidence. Arevalo, 983 S.W.2d at 804. Here, the record reflects that although Salazar had the burden of proof at the hearing on the contest, he repeatedly "pled the 5th" and was, for the most part, uncooperative in responding to questions regarding his indigency status. Additionally, the trial court heard evidence that, notwithstanding Salazar's sworn statement that he had no sources of income, he had previously pled guilty and been convicted of narcotics trafficking, and when he was recently arrested for the same offense, he was found with approximately 30 grams of cocaine in his possession. When Salazar was asked if he wanted to present any evidence, he responded that he did not. Thus, the record before us does not reflect that the trial court abused its discretion in finding Salazar failed to establish by a preponderance of the evidence the affidavit's allegations. See id. 20.1(b); In re Smith, 70 S.W.3d at 168; Arevalo, 983 S.W.2d at 804.
Because the trial court did not abuse its discretion, we affirm its order sustaining the contest to Salazar's affidavit. Therefore, Salazar is not entitled to proceed in this appeal without advance payments of costs and the filing fee.