Opinion
01-24-00354-CV
07-11-2024
Trayvone Wheatly-Porter v. DLP Capital dba The Proper
County Civil Court at Law No. 4 of Harris County No. 1224829
ORDER
Peter Kelly, Judge
The clerk's record, filed on June 18, contains a statement of inability to afford payment of court costs that was filed in the trial court on February 23, 2024. The clerk's record does not contain a contest to the statement of inability. The trial court held a hearing the same day and signed an order stating that Wheatley-Porter was not indigent, the statement of inability was not granted, and ordering the writ of possession to issue on March 1, 2024 or thereafter. No hearing record from the trial court's hearing has been filed. Based on the clerk's record, it does not appear that the trial court complied with the requirements of Rule 145. See Tex. R. Civ. P. 145.
Texas Rule of Civil Procedure 145 permits a party a party to file a statement of inability to afford payment of court costs. See Tex. R. Civ. P. 145(b). Although a clerk, court reporter or party may file a motion challenging the statement of inability, the trial court may also on its own motion require the party to prove his or her inability to afford costs. See Tex. R. Civ. P. 145(e). Before a declarant may be ordered to pay costs, the trial court must hold a hearing giving appellant 10 days' notice. See Tex. R. Civ. P. 145(f)(1). If the trial court signs an order finding that appellant is able to afford payment of court costs, the order "must be supported by detailed findings that the declarant can afford to pay costs." Tex.R.Civ.P. 145(f)(2). Moreover, the trial court's order must include the following language in conspicuous type: "You may challenge this order by filing a motion to the court of appeals within 10 days after the date this order is signed. See Texas Rule of Civil Procedure 145." Tex.R.Civ.P. 145)f)(4). If the appellant wants to challenge this order, she may do so by filing a motion in the appellate court within 10 days after the trial court's order is signed. See Tex. R. Civ. P. 145(g)(1)-(2).
There is no proof in the clerk's record that appellant was given 10 days' notice of the hearing as required by Rule 145(f)(1). Moreover, the trial court's order does not contain detailed findings that appellant can afford to pay costs. See Tex. R. Civ. P. 145(f)(2). Finally, the trial court's order does not include the required language advising appellant that he could challenge the order by filing a motion within 10 days of the date of the trial court's order. See Tex. R. Civ. P. 145(f)(4).
Appellant filed a notice of appeal on May 3, 2024, and filed another statement of inability on May 30, 2024. On May 15 and May 17, 2024, appellant filed statements of inability in this Court, both of which are duplicative of the statement of inability filed in the trial court on May 30, 2024.
Accordingly, the appeal is abated and remanded to the trial court for consideration of the statements of inability filed on May 30, 2024 and compliance with Rule 145. The trial court must hold a hearing, giving appellant 10 days' notice, in which the burden in on appellant. See Tex. R. Civ. P. 145(f)(1). If the trial court finds that appellant can afford to pay costs on appeal, it shall set forth in the order detailed findings supporting its ruling. See Tex. R. Civ. P. 145(f)(2). Finally, if the trial court signs an order finding that appellant is able to afford costs on appeal, the order shall include the statement, in conspicuous type, required by Rule 145(f)(4) permitting appellant the right to challenge the trial court's order.
The trial court shall see that a supplemental clerk's record containing the trial court's order, if any, is filed within 30 days of the date of this order. A supplemental reporter's record of the hearing shall also be prepared and filed in this Court within 30 days.
It is so ORDERED.