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In re B.T.G.

Court of Appeals of Texas, Fifth District, Dallas

May 30, 2017

IN THE INTEREST OF B.T.G., A CHILD

         On Appeal from the 302nd Judicial District Court Dallas County, Texas Trial Court Cause No. DF-12-12707-U

          Before Chief Justice Wright, Justice Lang-Miers, and Justice Stoddart.

          MEMORANDUM OPINION

          CRAIG STODDART JUSTICE

         Before 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 opinion.

         BACKGROUND

         Appellant, 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.[1] Two days later, the official court reporter filed her contest.[2] 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).

         Appellant 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.

         APPLICABLE LAW AND STANDARD OF REVIEW

         Texas 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 complained-of hearing).

         DISCUSSION

         Appellant 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.[3] See Martinez, 686 S.W.2d at 350-51.

         As the 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.

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