Opinion
NUMBER 13-15-00480-CV
02-08-2016
WHARTON COUNTY ET AL., Appellant, v. CHARLES LINDER FLOYD ET AL., Appellee.
On appeal from the 329th District Court of Wharton County, Texas.
ORDER
Before Justices Garza, Perkes, and Longoria
Order Per Curiam
Charles Floyd ("Floyd") filed an untimely motion challenging the trial court's order sustaining the Wharton County District Clerk's contest to his affidavit of indigency. Within his challenge motion was a request for an extension of time to file the challenge motion. Floyd argues that he is entitled to an extension due to technical difficulties he encountered during his attempt to log into our Court's electronic filing system. Floyd's challenge motion centers on the timing of the hearing on the District Clerk's indigency challenge. See TEX. R. APP. P. 20.1(e). Floyd concludes that the trial court was without jurisdiction to hear the indigency challenge. We grant Floyd's motion for an extension of time, deny his motion challenging the trial court's order, and further order Floyd to pay the costs of his appeal.
I. BACKGROUND
On December 9, 2015, Floyd filed an affidavit of indigence asserting his inability to pay costs of appeal. In an order dated December 17, 2015, we abated the appeal and ordered the District Clerk to file a challenge to Floyd's affidavit of indigence within ten days of our order. See TEX. R. APP. P. 20.1(e). We further ordered that the trial court conduct a hearing or sign an order extending the time to conduct a hearing within ten days after any contest is filed, but that any contest hearing may not be extended for more than 20 days from the date the order for extension is signed. See TEX. R. APP. P. 20.1(i)(2)(B), 20.1(i)(3).
On December 23rd, the District Clerk filed a "Court Clerk's Challenge of Indigency" by which she pleaded, among other things, that Floyd's household income is $3,649.30, and that he has assets worth over $10,000. On January 4, the plaintiff in the underlying litigation, Wharton County, filed "Plaintiff's Contest to Appellant's Declaration of Inability to Pay Costs." Also on January 4, 2016 the trial court signed an order extending the time to conduct the contest hearing and further ordered that the contest would be held on January 22, 2016.
The trial court explained that the reason for the delay between the filing of the clerk's challenge and the signing of the order was due to the closure of the district court during the holidays of December 23, 2015 through January 1, 2016.
Floyd attended the indigence hearing on January 22, and conceded that he had a monthly gross income of approximately $3,649. Floyd also admitted that he owned an undivided half interest in 17.63 acres of land in Wharton County with an appraised value of $48,483. Additionally, Floyd testified that he owned personal property worth approximately $9,650.
Floyd disputes the appraised value of the land and instead claims that its value is approximately $13,000.
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The trial court sustained the clerk's challenge to Floyd's indigency claim and included findings of fact and conclusions of law which stated:
1. At the hearing, Appellant, Charles Linder Floyd did not carry his burden to sustain the allegations of poverty because the evidence presented established by a preponderance of the evidence that Appellant, Charles Linder Floyd owns real property in Wharton County, Texas with a market value of $48,483, owns personal property with a value of $9,650, and has a monthly income of $3,649.37.
2. Appellant, Charles Linder Floyd has made no showing that he has attempted to sell the real or personal property he owns, borrow money against the real or personal property that he owns, or use some portion of the $3,649.37 a month of income he has to pay the costs.
3. Accordingly, this Court concludes that Appellant Charles Linder Floyd has not proven by a preponderance of the evidence that he would be unable to pay the costs, if he really wanted, and made a good faith effort to do so. See White v. Bayless, 40 S[.]W.3d 574, 576 (Tex. App. - San Antonio 2001, pet denied).
Floyd filed his challenge to the trial court's order and a motion for an extension of time with this Court on February 2. The proceedings in the trial court during the abatement period are the subject of Floyd's challenge motion.
II. STANDARD OF REVIEW AND APPLICABLE LAW
When a contest is sustained and a review of the ruling is sought, the question is whether an examination of the record establishes that the trial court abused its discretion. See Jones v. Duggan, 943 S.W.2d 90, 93 (Tex. App.—Houston [1st Dist.] 1997, orig. proceeding). In ruling on the merits of the evidence at the trial court level, the test for determining entitlement to proceed in forma pauperis is whether the preponderance of the evidence shows that the appellant would be unable to pay the costs of appeal, if he really wanted to and made a good faith effort to do so. See Griffin Indus. v. Thirteenth Court of Appeals, 934 S.W.2d 349, 351 (Tex. 1996); Pinchback v. Hockless, 164 S.W.2d 19, 20 (Tex. 1942). 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 Cronen v. Smith, 812 S.W.2d 69, 70 (Tex. App.—Houston [1st Dist.] 1991, orig. proceeding).
The burden of proof on the contest to the affidavit is on the party claiming indigence. See TEX. R. APP. P. 20.1(g). The failure by a person claiming indigence to make a real attempt to obtain or find assets that could be used to provide funds for paying for the appellate record constitutes evidence that a good-faith effort has not been made, and a trial court does not abuse its discretion in sustaining a contest based on such evidence. White v. Bayless, 40 S.W.3d 574, 576 (Tex. App.—San Antonio 2001, pet. denied).
II. ANALYSIS
Floyd does not challenge the trial court's ruling substantively. Rather, Floyd argues that the trial court's order extending the time for ruling on the contest was signed more than ten days after the challenge was filed, contrary to our order of abatement. Floyd concludes that the trial court was without authority to grant the extension. We disagree.
Although the date of the challenge hearing was beyond the deadline set in our abatement order, the late setting is not a basis for reversing the trial court's ruling on indigence. See TEX. R. APP. P. 44.1(a) (judgment may not be reversed based on error unless error probably caused the rendition of an improper judgment or probably prevented appellant from properly presenting his case to the court of appeals). Floyd was able to attend the hearing and was given the opportunity to meet his burden to establish indigency. Neither does Floyd argue, nor can we conclude from the record, that the delayed setting of the contest hearing probably caused the rendition of an improper judgment or prevented Floyd from presenting his case to this court.
At the hearing on the contest, Floyd testified that he and his wife are retired and living on a fixed income. He further testified that his monthly expenses change substantially. However, he stated that those monthly expenses include $150 for continuing education and $75 for clothing. He also stated that he owned personal property worth approximately $9,000 and that he was able to borrow roughly $6,000 in order to purchase more land. Moreover, Floyd does not dispute that his monthly gross income is $3,649.37.
Based on our review of the record before us, we cannot say the trial court abused its discretion in sustaining the contest to Floyd's affidavit of indigence. In making its ruling, the trial court made several findings with respect to Floyd's ability to pay for the costs of appeal, including that Floyd "made no showing that he has attempted to sell the real or personal property he owns, borrow money against the real or personal property that he owns, or use some portion of the $3,649.37 a month of income he has to pay the costs." The record here supports the trial court's fact findings and conclusion that Floyd failed to make a good-faith effort to obtain funds to pay the costs of appeal, or even a part thereof. We conclude that the trial court did not abuse its discretion in sustaining the contest to his claim of indigence. See White, 40 S.W.3d at 576. Therefore, Floyd is not entitled to proceed on appeal without the payment of costs. See TEX. R. APP. P. 20.1(g), (n).
III. CONCLUSION AND ORDER
Because Floyd has failed to show the trial court abused its discretion in sustaining the District Clerk's contest to his affidavit of indigence, we deny his challenge motion. Accordingly, Floyd is ordered to pay the filing fee in the amount of $205.00 to the clerk of this court within thirty days from the date of this order. See TEX. R. APP. P. 5. If Floyd fails to timely pay the filing fee in accordance with this order, the appeal will be dismissed. IT IS SO ORDERED.
PER CURIAM Delivered and filed the 8th day of February, 2016.