Court of Appeals of Texas, Sixth District, Texarkana
Submitted: March 6, 2017
Appeal from the County Court at Law No. 2 Gregg County, Texas
Trial Court No. 2015-1679-CCL2
Morriss, C.J., Moseley and Burgess, JJ.
K. Burgess Justice
January 11, 2017, Felicia Pierce filed a Statement of
Inability to Afford Payment of Court Costs in the County
Court at Law No. 2 of Gregg County in trial court cause
number 2015-1679-CCL2, styled Felicia Pierce v. Andrew
Riley, et al. Defendants CitiFinancial
Servicing, LLC, and Andrew Riley (collectively CitiFinancial)
contested Pierce's alleged inability to afford payment of
court costs and further claimed that, pursuant to
Section 13.003 of the Texas Civil Practice and Remedies Code,
Pierce was not entitled to a free appellate record because
her appeal was frivolous. See Tex. Civ. Prac. &
Rem. Code Ann. § 13.003 (West 2002). Following a
hearing on January 26, 2017, the trial court sustained the
contest and issued an order denying Pierce's claim of
inability to afford payment of court costs. In its order, the
trial court included a finding that the appeal of the trial
court's judgment was frivolous.
timely filed a motion in this Court 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.).
145 of the Texas Rules of Civil Procedure was rewritten,
effective September 1, 2016. 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). The Rule further requires the declarant to
provide, in the statement of inability to pay costs, evidence
of his inability to afford costs.
Pierce's statement indicates that she is "unable to
pay court costs." The statement further indicates that
Pierce receives "Food Stamps/SNAP" and Medicaid.
Pierce's total monthly net income is $1, 476.00, and her
monthly expenses, which were itemized on the statement, total
$1, 063.00. The statement further indicates that Pierce has
three financially dependent minor children. Pierce owns
property in the total amount of $624.52 and owes debts in the
amount of $48, 000.00 (student loans), $14, 120.00
(repossession), and $3, 025.00 (other loans).
person who files a statement of inability to pay court costs
can be required to prove her inability to afford costs at an
oral evidentiary hearing. Tex.R.Civ.P. 145(f). In this case,
CitiFinancial contested Pierce's
declaration. There is no indication in the record
before us, however, that CitiFinancial's contest was
sworn to or otherwise complied with the requirements of the
Rule. See Tex. R. Civ. P. 145(f)(1).
hearing, Pierce stated that her annual gross income was $16,
135.70 and introduced a copy of her W-2 Wage and Tax
Statement for 2016, which reflected that amount. Pierce's
children received free lunches as students in the Frisco
Independent School District, and Pierce received government
assistance through the Supplemental Nutrition Assistance
Program (SNAP) and through Medicaid for herself and her three
children. Pierce introduced, without objection, the affidavit
of Tonja Hawthorne, who stated that Pierce's family
members and friends were able to help her pay for "court
fees" in the past, but are no longer able to do so.
Pierce also introduced a statement from the Texas Health and
Human Services Commission, without objection, that she and
her three children receive SNAP benefits, together with a
letter from the Frisco ISD Child Nutrition Department stating
that Pierce's three children are eligible for free
breakfast and lunch.
testified that, although her family has helped finance this
lawsuit in the past, she is no longer able to garner
additional financial support. She has contacted approximately
fifteen family members seeking assistance in paying for the
appellate record, but to no avail. Pierce has a business
called the Hookum Music Group, in which she assists
independent artists with songwriting. Pierce testified that
Hookum does not currently generate income. A business profile
for Hookum was offered into evidence. The profile, which
apparently was generated by Buzzfile, indicates that Hookum
is estimated to generate $84, 221.00 in annual revenue.
Pierce denied that Hookum made any money whatsoever. Pierce
is currently employed by VSSI, LLC, and earns annual gross
wages of $16, 135.70.
the trial court ruled that Pierce is not entitled to a free
appellate 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). No such findings were
included in the trial court's order.
Pierce filed a statement of inability to pay court costs that
complied with Rule 145. She introduced evidence of her
inability to afford payment of court costs at the hearing.
Further, CitiFinancial's contest to Pierce's
statement failed to comply with Rule 145. The only
controverting evidence introduced at the hearing was a
document printed from Buzzfile estimating Hookum's annual
revenue, which statement was disputed by Pierce. Moreover,
the trial court's order was unsupported by findings
required by Rule 145. Given these circumstances, we find that
the trial court erred in holding that Pierce was not entitled
to a free appellate record based on her inability to afford
to pay for the record.
also challenged Pierce's entitlement to a free record
pursuant to Section 13.003 of the Texas Civil Practice and
Remedies Code. This Section provides that a free record is
only available if the appeal is not frivolous. See
Tex. Civ. Prac. & Rem. Code Ann. § 13.003(a)(1)(A).
An appeal "is frivolous when it 'lacks an arguable
basis either in law or in fact.'" In re
K.D., 202 S.W.3d 860, 866 (Tex. App.-Fort Worth 2006, no
pet.) (quoting De La Vega v. Taco Cabana, Inc., 974
S.W.2d 152, 154 (Tex. App.-San Antonio 1998, no pet.)).
"In determining whether an appeal is frivolous, a judge
may consider whether the appellant has presented a
substantial question for appellate review." Tex. Civ.
Prac. & Rem. Code Ann. § 13.003(b). We review a
trial court's determination of whether an appeal is
frivolous for an abuse of discretion. In re A.V.,
350 S.W.3d 317, 320 (Tex. ...