Opinion
No. 01-09-00502-CV
Opinion on rehearing issued December 2, 2010.
On Appeal from the 239th District Court Brazoria County, Texas, Trial Court Case No. 29884.
Panel consists of Justices JENNINGS and BLAND.
Justice George C. Hanks, Jr. voted as a member of the original panel but has resigned in the interim. On rehearing, this case has been decided by the two remaining justices. TEX. R. APP. P. 41.1(b).
MEMORANDUM OPINION ON REHEARING
After the Texas Department of Criminal Justice (TDCJ) discharged Phyllis Shanklin from employment in December 2003, she sued for wrongful termination. The jury returned a verdict in favor of the TDCJ, and the trial court entered a take-nothing judgment. Shanklin filed a notice of appeal from that judgment along with an affidavit of inability to pay costs of appeal. The TDCJ and the court reporter contested Shanklin's affidavit, and, after hearing, the trial court sustained the contest. See TEX. R. APP. P. 20.1(a)(2). Shanklin has moved for rehearing in her appeal of the trial court's ruling sustaining the contest. We grant rehearing, withdraw our opinion and judgment of September 10, 2010, and issue the following in their stead. Our disposition of the case remains unchanged.
Finding that the trial court acted within its discretion, we affirm.
Background
In the hearing on the indigence issue, Shanklin testified that she is a college graduate with basic computer skills and has not been employed since her discharge in December 2003. According to Shanklin, she had applied for jobs and did not turn down any job offers, but she did not provide any specifics or documentation about the types of jobs she applied for or how frequently she sought employment during the five years since her employment with the TDCJ ended.
Other than her affidavit, Shanklin did not supply any proof of her monthly living expenses. She estimated that they amount to approximately $1,500. Shanklin explained that she and her eleven-year-old daughter have lived with and received support from Anthony Mack for the past eleven years, and that Mack claims Shanklin's daughter as a dependent on his federal tax return. Mack pays all of their expenses, which include food, housing, utilities, cable television, and payments on Shanklin's truck note and credit card account.
Shanklin further testified that she has an interest in a piece of real estate, for which she pays $140 in annual property taxes. Shanklin conceded that she did not consider selling any of her personal property — which includes a horse, a small amount of jewelry, some home appliances, and a computer — to help pay for the costs of appeal.
With respect to her ability to pay the estimated $3,000.00 for the reporter's record, Shanklin testified that she "didn't expect the court reporter to [prepare the record] for free," and that she could pay something for the reporter's record, just not the entire amount estimated. Shanklin admitted that Mack would be willing to help pay for the record "if we have anything to spare." But, she explained, "right now. . . . we're living paycheck to paycheck."
Discussion
Ruling on indigence contest
Rule 20.1 allows a party to proceed on appeal without advance payment of costs if (1) the party files an affidavit of indigence in compliance with the rule, (2) either the claim of indigence is not contested or the contest is not sustained, and (3) the party timely files a notice of appeal. TEX. R. APP. P. 20.1(a)(1)-(3). The affidavit must identify the party filing it, state the amount of costs the party can pay, if any, and contain complete information about the party's financial condition. TEX. R. APP. P. 20.1(b). Specifically, the affidavit must include:
(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 ability 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 court costs.
TEX. R. APP. P. 20.1(b)(1)-(11). The appellant must file the affidavit of indigence in the trial court "with or before the notice of appeal." TEX. R. APP. P. 20.1(c)(1).
The district clerk, the court reporter, or any interested party may contest an affidavit of indigence. TEX. R. APP. P. 20.1(e). When, as here, there is a contest, the appellant must prove her indigence. TEX. R. APP. P. 20.1(g); Griffin Indus., Inc. v. Thirteenth Court of Appeals, 934 S.W.2d 349, 351 (Tex. 1996); Jackson v. Tex. Bd. of Pardons Paroles, 178 S.W.3d 272, 275 (Tex. App.-Houston [1st] 2005, no pet.).
The test for indigence is whether the appellant shows by a preponderance of the evidence that she would be unable to pay the costs of appeal if she "`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] 1998, no pet.) (en banc) (quoting Allred v. Lowry, 597 S.W.2d 353, 355 (Tex. 1980)).
In In re Arroyo, the Texas Supreme Court construed the Texas Rules of Appellate Procedure to provide for appellate review of a trial court's order sustaining a contest to an affidavit of indigence as a matter ancillary to appellant's appeal. 988 S.W.2d 737, 738-39 (Tex. 1998). Our task is to determine whether the court abused its discretion. See Jackson, 178 S.W.3d at 275. The trial court abuses its discretion when it acts without reference to any guiding rules or principles; the facts and law permit only one decision, which is the opposite of the trial court's decision; and the trial court's ruling is so arbitrary and unreasonable as to be clearly wrong. Arevalo, 983 S.W.2d at 804.
Shanklin's proof of indigence
Shanklin testified that she had an interest in real property and also owned personal property that she could have sold or used as collateral to obtain a loan, but she admitted that she did not try to do either. In addition, in 2006 she received $8,000 in settlement proceeds from a suit she brought for malicious prosecution against a department store. Her testimony as to her effort to seek employment in the five and a half years since her last employment was cursory and vague.
Though Shanklin testified about her monthly living expenses, she also acknowledged that Mack paid these expenses. Shanklin also testified that she holds a Macy's credit card account, which has an outstanding balance of $900.00. In response to the trial court's question, Shanklin conceded that she had used the credit card between the May 22, 2009, filing date of her affidavit of indigence and the June 12th hearing.
The record shows that Shanklin discussed the cost of preparing the appellate record with Mack, and she testified that she would be able to pay in monthly installments. She has not, however, made any actual payment toward the court reporter's $3,000 estimate for preparing the record.
The trial court could have found Shanklin's concessions credible and discounted Shanklin's other testimony in concluding that Shanklin did not meet her burden to show a good-faith effort to pay the costs of the appeal. The trial court therefore acted within its discretion in sustaining the contest to Shanklin's affidavit of indigence. See TEX. R. APP. P. 20.1(b); Thomas v. Olympus/Nelson Prop. Mgmt., 97 S.W.3d 350, 352-53 (Tex. App.-Houston [14th] 2003, no pet.) (per curiam) (holding that trial court did not abuse its discretion in sustaining contests to affidavit of indigence where appellant failed to state whether she had personal property that she could use to pay for record, and whether she would be able to obtain loan); In re Smith, 70 S.W.3d 167, 169 (Tex. App.-San Antonio 2001, no pet.) (holding that trial court did not abuse its discretion in sustaining contest to affidavit of indigence where evidence at trial showed that appellant, among other things, lived in town house and was purposefully unemployed); Cronen v. Smith, 812 S.W.2d 69, 70 (Tex. App.-Houston [1st] 1991, original proceeding) (holding that trial court did not abuse discretion in sustaining contest where evidence conflicted regarding appellant's willingness to obtain employment and thereby make good-faith effort to pay appellate costs); accord Baughman v. Baughman, 65 S.W.3d 309, Tex. App.-Waco 2001, pet. denied) (holding that, for purposes of qualifying for free record on appeal, voluntary unemployment does not make appellant indigent).
Conclusion
We conclude that the trial court did not abuse its discretion in sustaining the contests to Shanklin's affidavit of indigence and denying her a free record on appeal. We therefore affirm the order of the trial court and order Shanklin to pay for, or make arrangements to pay for, the record in this appeal. See TEX. R. APP. P. 35.3. Unless Shanklin provides the court with proof of payment for the record within fifteen days of the date of this opinion, we will dismiss the appeal. See TEX. R. APP. P. 37.3(b), 42.3(c); Arroyo, 988 S.W.2d at 738-39.
All pending motions are dismissed as moot.