JERRY CHAMBERS ET AL v. TEXAS DEPARTMENT OF PUBLIC SAFETY (2011)

OPINION

Opinion By Justice FitzGerald

Before the Court is the motion of appellants Jerry, Marsha, and Jason Chambers to reconsider the trial court's order sustaining the contest to their affidavit of indigence.   The trial court held a hearing on the contest on December 3, 2010 and sustained the contest.   The Chamberses filed a motion to reconsider the trial court's ruling.   The trial court conducted a hearing on the motion to reconsider and issued an order denying indigency status to the Chamberses.

In reviewing a trial court's order sustaining a contest to an affidavit of indigence, our task is to determine whether the court abused its discretion.   See Jackson v. Tex. Bd. of Pardons & Paroles, 178 S.W.3d 272, 275 (Tex.App.-Houston [1st Dist.] 2005, no pet.).   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 v. Millan, 983 S.W.2d 803, 804 (Tex.App.-Houston [1st Dist.] 1998, no pet.) (en banc).

A trial court can consider a number of factors when determining the validity of a challenge to an affidavit of indigence.   Some of these factors include whether the litigant is dependent upon public charity afforded through various welfare programs, Goffney v. Lowry, 554 S.W.2d 157 at 159-60 (Tex.1977);  the litigant's credit rating, Pinchback v. Hockless, 139 Tex. 536, 164 S.W.2d 19 at 19 (1942);  the value of the litigant's claim and whether it could afford the basis for security of a loan, Wallgren v. Martin, 700 S.W.2d 28, 30 (Tex.App.-Dallas 1985, orig. proceeding);  the litigant's employment history, Goffney, 554 S.W.2d at 160;  and that the litigant cannot secure a bona fide loan to pay the costs, Pinchback, 164 S.W.2d at 20.

We have reviewed the reporter's records from the two hearings the trial court conducted on this matter.   During the first hearing, Marsha Chambers testified that she was last employed in 1997 and that her husband, appellant Jerry Chambers, became disabled in 2008.   She testified that she needs new job skills but that she did not have the money to go back to school.   She testified that her husband receives disability income and that they have a house and a car.   They applied for a loan but were turned down.   At the conclusion of the first hearing, the trial court found that Marsha Chambers (1) was able to work, (2) was not disabled, (3) had not sought employment, and (4) did have assets.   At the hearing on the motion to reconsider, Marsha Chambers testified that she had applied for several jobs and posted her resume on the internet.   She also testified that she had advertised to rent out one-half of her son's room but had not received any response.

Although capable of working, Marsha Chambers was last employed in 1997.   She did not begin looking for employment until after the trial court denied their affidavit of indigence.   Although they were turned down for a loan, the Chamberses do have assets.   Under these circumstances, we conclude the trial court did not abuse its discretion in sustaining the contest to the Chamberses' affidavit of indigence.   Accordingly, we deny the Chambers's motion to reconsider.

101573F.P05

KERRY P. FITZGERALD JUSTICE