TERESA WARD v. CITY OF DALLAS TEXAS (2011)

MEMORANDUM OPINION

Before the Court is Teresa Ward's motion to review the trial court's order sustaining the City of Dallas's contest to her affidavit of indigence.   The trial court signed the order after Ward failed to appear at the hearing on the contest.   Ward asserts she did not appear because she received inadequate notice of the hearing and, as a result, the court erred in sustaining the contest.   The City has filed no response.

We review a trial court's decision sustaining a contest to an affidavit of indigence for an abuse of discretion;  that is, we look to see whether the court acted arbitrarily, unreasonably, or without any guiding rules of principles.   See Jackson v. Tex. Bd. of Pardons and Paroles, 178 S.W.3d 272, 275 (Tex.App.-Houston [1 st Dist.] 2005, no pet.).   Under the rules of civil procedure, a party is generally entitled to three days' notice of a hearing if served in person, by agent, or by courier, or six days' notice if served by certified mail or telephonic document transfer.   See Tex.R. Civ. P. 21, 21a;  In Re C.S., 264 S.W.3d 864, 871 (Tex.App.-Waco 2008, no pet.).

The record here reflects the hearing was held August 20, 2010.   The City served Ward with notice by certified mail.   Although required under the rules to provide six days' notice, the City served the notice on August 16.

We conclude the City's notice was inadequate and the trial court abused its discretion in sustaining the contest.   See Monroy v. Estrada, 149 S.W.3d 847, 852–55 (Tex.App.-El Paso 2004, no pet.).   Because Ward had the burden at the hearing of proving the allegations in her affidavit once the contest was filed, see Tex.R.App. P. 20.1(g), and she received inadequate notice of the hearing, we grant Ward's motion.   We reverse the trial court's order sustaining the contest and remand to the trial court to conduct another hearing on the City's contest.

100941F.P05

PER CURIAM