Court of Appeals of Texas, Fifth District, Dallas
IN THE INTEREST OF J.S. AND J.S., MINOR CHILDREN
Appeal from the 330th Judicial District Court Dallas County,
Texas Trial Court Cause No. DF-16-02901
Chief Justice Wright, Justice Evans, and Justice Stoddart
the Court is Mother's motion for review of the trial
court's order sustaining the court reporter's
challenge to Mother's "affidavit of indigency"
and directing Mother to pay the fee for the reporter's
record in full. See Tex. R. Civ. P. 145(g). We
affirm the order.
appearing pro se, filed the affidavit of indigency following
the trial court's order naming her possessory conservator
of the children and allowing supervised visitation
only. In the affidavit, Mother stated she is
employed by Jani King as a "Team Lead" and has a
net monthly income of $1700. She further stated she owns no
property and has no debts. She receives no public benefits,
and her monthly expenses, consisting of "rent/house
payments/maintenance, " "food and household
supplies, " "utilities and telephone, "
"school and child care, " and "gas, bus fare,
auto repair, " total $1400.
hearing on the court reporter's motion challenging the
affidavit, Mother offered her lease agreement in support of
her affidavit, but nothing else. In sustaining the
reporter's challenge, the trial court found Mother failed
to provide documentation "supporting the entirety of her
affidavit, " failed to provide "credible evidence
to support [her] expenditures, " and had
"sufficient income to secure[the] reporter's
LAW AND STANDARD OF REVIEW
Rule of Civil Procedure 145 exempts a party from paying court
costs, including the reporter's fee, if the party files a
statement showing he does not have the funds to pay.
See Tex. R. Civ. P. 145(a), (c). However, the clerk,
another party, attorney ad litem in certain cases, the court
reporter, or the court itself may challenge the statement of
inability to pay costs by motion. See id.
145(f)(1)-(4). The trial court may grant the motion and order
payment of costs if, following a hearing, the declarant fails
to establish his inability to afford costs. See id.
145(f)(5). The trial court may order the declarant pay that
part of the costs he can afford or pay in installments.
See id. 145(f)(7). On appeal, the trial court's
order is reviewed for abuse of discretion and will be
affirmed unless the record reflects the trial court acted in
an arbitrary and unreasonable manner or without reference to
any guiding rules or principles. See In re A.L.V.Z.,
352 S.W.3d 568, 570 (Tex. App.-Dallas 2011, no pet.). The
central inquiry under rule 145 "is not merely whether
[the declarant] can pay costs, but whether [the declarant]
can afford to pay costs" and still pay for "basic
essentials, like housing or food." See Tex. R.
Civ. P. 145, cmt.
court reporter having filed a motion challenging the
affidavit of indigence, it was Mother's burden to prove
she could not afford to pay the fee for the reporter's
record. See id. 145(f)(5). Mother, however, did not
meet this burden. The record shows Mother's monthly
income exceeds her monthly expenses by $300, but the record
does not reflect the cost for preparation of the
reporter's record. Without knowing the reporter's
fee, we are unable to determine what effect payment of that
fee would have on Mother's ability to meet her basic
needs considering the $300 she has left each month after
paying her living expenses. See id. cmt. On the
record before us, we conclude the trial court did not abuse
its discretion in sustaining the court reporter's
challenge to Mother's affidavit. Cf. Moreno v.
Perez, 363 S.W.3d 725, 743-44 (Tex. App. -Houston
[1st Dist.] 2011, no pet.) (concluding trial court
abused its discretion in sustaining contest to indigence
affidavit where, among other factors, appellant received
"government entitlement income" for housing and her
"light bill, " she had debt in the amount of $26,
000, and her employment income exceeded her monthly expenses
by only $5); In re Sosa, 980 S.W.2d 814, 816 (Tex.
App.-San Antonio 1998, orig. proceeding) (concluding trial
court abused its discretion in sustaining contest where
affidavit established appellant's monthly expenses
exceeded her income and appellant had no assets she could use
to finance the appeal).
affirm the trial court's order.