Court of Appeals of Texas, Fifth District, Dallas
KELLY DEAN HOLLINGSWORTH AND K. HOLLINGSWORTH & ASSOC., P.C., Appellants
WALAAL CORPORATION D/B/A AMBASSADOR CAB, FARHAN RIYALE, BASHIR SALAH, E.P.D.A., INC. D/B/A ALAMO CAB, TESFAI H. SBAHTU, D.E.C.D.A., INC. D/B/A STARCAB, GIRMA WOLDE-RUFAEL, BEKELE KIDANE, Appellees
Appeal from the 134th Judicial District Court Dallas County,
Texas Trial Court Cause No. DC-14-03638
Chief Justice Wright, Justice Lang-Miers, and Justice
the Court is Kelly Dean Hollingsworth's motion
challenging the trial court's order to pay the cost of
the reporter's record. See Tex. R. Civ. P. 145(g)(1).
We grant the motion and reverse the trial court's order.
trial court's order follows a hearing on the court
reporter's contest to Hollingsworth's affidavit of
inability to pay costs, which asserted Hollingsworth's
expenses exceeded his income by approximately $2, 000 per
month. See id. 145(e), (f)(3). Hollingsworth filed
the affidavit seeking to obtain without payment the appellate
record of proceedings that resulted in a judgment against K.
Hollingsworth & Associates, P.C. and him in excess of
$500, 000. The appeal from that judgment is docketed
as appellate cause number 05-16-00534-CV.
testified at the hearing, which was held three months after
the filing of the affidavit, that his sole source of income
is from Laney & Bollinger, where he is a contract
attorney and is paid fifty-percent of the revenues from work
he has performed. Since the filing of his affidavit, his
monthly net income has increased from $3245 to $4220. His
monthly expenses, though slightly different, have remained
about the same at approximately $5200. He has considerable
debt, including over $200, 000 in student loans and $29, 000
in legal fees, and has borrowed money from "the existing
partners" at Laney & Bollinger to cover some of his
expenses. Hollingsworth testified the cost of the
reporter's record was estimated between $9, 000 and $11,
000, and he could not afford to pay the fee. He has borrowed
as much money as he can to "keep making up for the
thousand-dollar-a-month deficit, " and did not have
"any other sources from whom to borrow." He
testified he had furniture and other household goods in two
storage units, and had "sold some of the goods to keep
things going, " including a pool table. He had no assets
he could liquidate or sell to pay the fee. To support his
testimony, Hollingsworth offered into evidence a legal bill,
his student loan statement, and his car loan statement, but
he did not offer any tax returns or forms showing his income
or any documentation in support of his living expenses.
court reporter offered no testimony contradicting
Hollingsworth's assertions, and agreed generally with the
estimated cost of the trial record.
trial court denied Hollingsworth's affidavit. In findings
of fact made pursuant to rule 145(f)(6), the trial court
found, in relevant part that (1) Hollingsworth's
affidavit did not comply with the requirements of Texas Rule
of Civil Procedure 145(b) and did not include
"attachments" showing his inability to pay; and (2)
Hollingsworth "failed to carry his burden to prove the
inability to afford costs by the greater weight of the
credible evidence presented."
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). The statement must
be sworn to before a notary or made under the penalty of
perjury and must either be the form "Statement of
Inability to Afford Payment of Court Costs or an Appeal
Bond" approved by the Texas Supreme Court or include the
information required by the approved form. See id.
145(a), (b). Failure to use the approved form is not ground
for requiring the party to pay costs, and if a statement
contains a material defect or omission, the trial court may
direct the party to correct or clarify the statement. See
court may order payment of costs by a party who files a
statement only on motion challenging the statement and upon
the party's failure, at an evidentiary hearing, to
establish his inability to afford costs. See id.
145(f)(1)-(5). The trial court may order the party pay only a
portion of the costs or pay in installments. See id.
If the trial court orders the party to pay court costs, the
court must support its order with "detailed findings
that the [party] can afford to pay costs." See
id. 145(f)(6). 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 id. 145, cmt.
appeal, the trial court's order to pay costs 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.). As the fact finder, the
trial court is the sole judge of the credibility of the
witnesses and evidence. In re A.R., 236 S.W.3d 460,
471 (Tex. App.- Dallas 2007, no pet.) (op. on reh'g).
However, the trial court may not completely disregard the
only evidence adduced ...