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Hollingsworth v. Walaal Corp.

Court of Appeals of Texas, Fifth District, Dallas

June 9, 2017


         On Appeal from the 134th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-14-03638

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



         Before the Court is Kelly Dean Hollingsworth's motion challenging the trial court's order to pay the cost of the reporter's record.[1] See Tex. R. Civ. P. 145(g)(1). We grant the motion and reverse the trial court's order.


         The 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.[2] The appeal from that judgment is docketed as appellate cause number 05-16-00534-CV.

         Hollingsworth 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.[3] 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.

         The court reporter offered no testimony contradicting Hollingsworth's assertions, and agreed generally with the estimated cost of the trial record.

         The 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."


         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). 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 id. 145(d).

         A trial 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.

         On 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 ...

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