IN THE INTEREST OF AND CHILDREN v. <<

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Court of Appeals of Texas, Texarkana.

IN THE INTEREST OF N.V.R., D.A.R., AND J.T.R., CHILDREN

No. 06-17-00022-CV

Decided: February 24, 2017

Before Morriss, C.J., Moseley and Burgess, JJ.

MEMORANDUM OPINION

On January 24, 2017, William Runnels filed a statement of inability to afford payment of court costs in the 307th District Court of Gregg County under trial court cause number 2007-2400-DR, styled In the Interest of N.V.R., D.A.R., and J.T.R., Children. Domanita Roshun Craddock-Neal contested Runnels' alleged inability to afford payment of costs. Following a hearing on January 26, 2017, the trial court sustained the contest and issued an order denying Runnels' claim of inability to afford payment of court costs.

Runnels timely filed a motion in this Court, in accord with Rule 145(g)(1) of the Texas Rules of Civil Procedure, challenging the trial court's order. See TEX. R. CIV. P. 145(g)(1). We review the trial court's order for an abuse of discretion. See Garza v. Garza, 155 S.W.3d 471, 475 (Tex. App.—San Antonio 2004, no pet.).

Rule 145 of the Texas Rules of Civil Procedure was rewritten, effective September 1, 2016.1 Under the revised Rule, “A party who files a Statement of Inability to Afford Payment of Court Costs cannot be required to pay costs except by order of the court as provided by this rule.” TEX. R. CIV. P. 145(a). Runnels' statement was submitted on a form approved by order of the Supreme Court of Texas. See Supreme Court of Texas, Final Approval of Amendments to the Texas Rules of Civil Procedure and the Texas Rules of Appellate Procedure and of a Form Statement of Inability to Afford Payment of Court Costs, Misc. Docket No. 16-9122 (Aug. 31, 2016).2 The Rule further requires the declarant to provide, in the statement of inability to pay costs, evidence of his inability to afford costs.3

Here, Runnels' declaration states that he “cannot afford to pay costs.” The declaration further states that Runnels has no monthly income and that he has monthly expenses—categorized in his declaration—of $767.33. Runnels also owes a medical debt of $563.00 and owns a 2004 Lincoln LS valued at $1,100.00. Runnels' declaration indicates that he receives “Food stamps/SNAP” and Medicaid. Attached to Runnels' declaration is a letter from Sarah White, managing attorney for Lone Star Legal Aid, stating that although Runnels is financially eligible for legal aid services, Lone Star is not able to provide such aid to Runnels.

A person who files a statement of inability to pay court costs can be required to prove his inability to afford costs at an oral evidentiary hearing on the court's own motion. TEX. R. CIV. P. 145(f). In this case, Craddock-Neal contested Runnels' declaration.4 There is no indication in the record before us, however, that Craddock-Neal's contest was sworn or otherwise complied with the requirements of the Rule. See TEX. R. CIV. P. 145(f)(1). There is likewise no indication in the record that the trial court provided Runnels with the ten-day, mandatory hearing notice required by the Rule.5 Such notice is presumably required in light of the fact that the declarant bears the burden to prove, at the hearing, his inability to afford costs. Id.

At the hearing in this case, Runnels stated that he had been unemployed since December 28, 2016, and that since that time, he has been searching for employment. Runnels submitted a statement of his monthly expenses of $727.33 and his monthly insurance payment on his home and his vehicle. Runnels also stated that he is paying off a ticket with the Longview Police Department at the rate of $50.00 a month, and he introduced a copy of a $563.00 medical bill he is responsible for paying. He further indicated that he has been approved by the Texas Department of Health and Human Services to receive benefits and that he qualifies to receive the services of Lone Star Legal Aid. Documents indicating approval for receipt of those benefits were introduced as exhibits at the hearing. Runnels testified that he paid court reporter Kasi Harris $1,250.00 in cash for the transcript of an October 2016 hearing. Although Runnels was ordered to pay child support in December 2016, he had not done so at the time of the hearing. On December 5, 2016, when he was still employed, Runnels took his children to a WWE wrestling event in Tyler. Runnels has associate degrees in legal assisting and business management. As of the hearing date, Runnels had been unable to find employment, although he claimed he had diligently searched for employment.

The trial court ruled that Runnels is not entitled to a free transcript and statement of facts for appeal. Although the trial court ultimately issued a written order finding that Runnels was not indigent for the purpose of receiving a reporter's record, that order did not comply with Rule 145. When the trial court orders a declarant to pay court costs, it is required under Rule 145 to support that order with “detailed findings that the declarant can afford to pay costs.” TEX. R. CIV. P. 145(f)(6).

Here, Runnels filed a statement of inability to pay court costs that complied with Rule 145. He was not afforded proper notice of the hearing at which the statement was challenged, but was nevertheless able to introduce evidence of his inability to afford payment of court costs. Further, the contest to the statement filed by Runnels failed to comply with the Rule. No controverting evidence was introduced at the hearing which would show that Runnels was able to afford to pay court costs. Moreover, the trial court's order was unsupported by findings required by Rule 145. Given these circumstances, we find that the trial court abused its discretion in requiring Runnels to pay any costs of court whatsoever.

We reverse the order of the trial court and remand this matter for further proceedings consistent with this opinion.

FOOTNOTES

1.   The comment to the rule recognizes that “[a]ccess to the civil justice system cannot be denied because a person cannot afford to pay court costs.” TEX. R. CIV. P. 145 cmt.

2.   “The clerk may refuse to file a Statement that is not sworn to before a notary or made under penalty of perjury. No other defect is a ground for refusing to file a Statement,” but if the statement contains a material defect or omission, the declarant may be directed by the court to correct or clarify the statement. TEX. R. CIV. P. 145(d). Runnels' statement was filed by the clerk, and he was not directed to correct or clarify it.

3.   TEX. R. CIV. P. 145(e). The Rule provides examples of such evidence, including evidence that the declarant:(1) receives benefits from a government entitlement program, eligibility for which is dependent on the recipient's means;(2) is being represented in the case by an attorney who is providing free legal services to the declarant, without contingency, through: (A) a provider funded by the Texas Access to Justice Foundation;(B) a provider funded by the Legal Services Corporation; or(C) a nonprofit that provides civil legal services to persons living at or below 200% of the federal poverty guidelines published annually by the United States Department of Health and Human Services;(3) has applied for free legal services for the case through a provider listed in (e)(2) and was determined to be financially eligible but was declined representation; or(4) does not have funds to afford payment of costs.Id.

4.   The Rule permits “[t]he clerk or any party” to file a motion “to require the declarant to pay costs only if the motion contains sworn evidence, not merely on information or belief,” of the following: “(A) that the Statement was materially false when it was made; or (B) that because of changed circumstances, the Statement is no longer true in material respects.” TEX. R. CIV. P. 145(f)(1).

5.   “The declarant must be given 10 days' notice of the hearing. Notice must either be in writing and served in accordance with Rule 21a or given in open court.” TEX. R. CIV. P. 145(f)(5). The trial court indicated that Runnels filed an affidavit of indigence on January 19, 2017. That affidavit, however, was not made a part of the record provided to this Court. The trial court further indicated that it submitted a letter on January 20, 2017, to Runnels advising of a January 26, 2017, hearing date. That notice fails to comply with the requirements of the Rule.

Bailey C. Moseley Justice