Court of Appeals of Texas, Fifth District, Dallas
Appeal from the 302nd Judicial District Court Dallas County,
Texas Trial Court Cause No. DF-12-12707-U
Chief Justice Wright, Justice Lang-Miers, and Justice
the Court are appellant's May 15, 2017 "Motion
Challenging the Order Sustaining Contest to Inability to Pay
Court Costs" and May 26, 2017 supplemental motion.
See Tex. R. Civ. P. 145(g)(1). Appellant raises
several arguments, but we find dispositive his assertion he
received inadequate notice of the hearing leading to the
order. Accordingly, we grant the motion to the extent we
reverse the trial court's order and remand the contest to
the trial court to conduct a hearing consistent with this
appearing pro se, filed the affidavit of indigence with the
trial court on May 3, 2017, the day after he appealed the
trial court's order expunging the notice of lis pendens
he had filed on appellee's property. Two days later,
the official court reporter filed her contest. The contest was
set for hearing May 11, 2017. Although required to give
appellant ten days' notice of the hearing, the court
reporter emailed appellant notice of the hearing on May 5,
2017. See Tex. R. Civ. P. 145(f)(5).
did not appear at the hearing, and the court reporter called
no witnesses. However, recognizing she had not given
appellant ten days' notice, the reporter noted appellant
had filed an accelerated appeal from the expungement order
and, as a result, the record appeared to be due May 12, 2017.
See T . R. A . P. 26.1(b), 35.1(b). Because of the
May 12 deadline, ex pp th she argued the notice
period could be shortened to allow for a ruling on the
contest before she prepared the record. The trial court did
not explicitly shorten the notice period but found that
appellant, having not appeared at the hearing, failed to meet
his burden of proving his inability to pay costs. The trial
court granted the contest and ordered appellant to pay
"full costs" for the reporter's record. The
trial court signed the order May 12th.
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. Id. 145(f)(1)-(4).
The trial court must hold an "oral evidentiary
hearing" on the motion before ordering any payment of
costs, and ten-days' notice of the hearing must be given.
Id. 145(f)(5). At the hearing, the party alleging
indigency bears the burden of proving the inability to pay
costs. Id. An order granting the motion is reviewed
for abuse of discretion on appeal 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.). Generally, a complaint
for appellate review must be preserved by specific objection
or motion in the trial court to allow the trial court an
opportunity to correct the error. See Tex. R. App.
P. 33.1; Arkoma Basin Expl. Co. v. FMF Assoc. 1990-A,
Ltd., 249 S.W.3d 380, 387 (Tex. 2008) ("the
cardinal rule for preserving error is that an objection must
be clear enough to give the trial court an opportunity to
correct it."). However, a party who complains of
inadequate notice of a hearing and does not appear at the
hearing may raise the complaint for the first time following
the hearing. See Prade v. Helm, 725 S.W.2d 525, 527
n.3 (Tex. App.-Dallas 1987, no writ) (citing with approval
Martinez v. Gen. Motors Corp., 686 S.W.2d 349,
350-51 (Tex. App.-San Antonio 1985, no writ), which addressed
inadequate notice of hearing complaint raised for the first
time on appeal where appellant did not appear at
did not complain he received inadequate notice of the hearing
in the trial court. However, because he did not appear at the
hearing, his complaint is properly before us. See
Martinez, 686 S.W.2d at 350-51.
court reporter herself recognized, appellant was not given
ten days' notice of the hearing on the contest. Although
she provided an explanation for her failure to do so, Texas
Rule of Civil Procedure 145 does not allow for the shortening
of the notice period. Compare Tex. R. Civ. P.
145(f)(5) ("The declarant must be given 10 days'
notice of the hearing") with Tex. R. Civ. P.
21(b) ("An application to the court for an order and
notice of any hearing thereon, not presented during a hearing
or trial, must be served upon all other parties not less than
three days before the time specified for the hearing, unless
otherwise provided by these rules or shortened by the
court.") (emphasis added). Because appellant had
the burden at the hearing to prove his inability to pay costs
and he received inadequate notice of the hearing, we conclude
the trial court abused its discretion in granting the court
reporter's motion challenging appellant's affidavit
of indigence. See Monroy v. Estrada, 149 S.W.3d 847,
852-55 (Tex. App.-El Paso 2004, no pet.) (concluding trial
court abused its discretion in conducting indigency hearing
where notice of hearing inadequate). We grant appellant's
motion for review, reverse the trial court's order, and
remand the contest to the trial court for a hearing
consistent with this opinion. The hearing shall be held
within thirty days of the date of this opinion.