Court of Appeals of Texas, Fifth District, Dallas
Appeal from the County Court at Law No. 3 Collin County,
Texas Trial Court Cause No. 003-01795-2018
Chief Justice Burns, Justice Whitehill, and Justice Nowell
A. NOWELL JUSTICE
order dated April 4, 2019, we construed appellant Adrian
Booker's amended notice of appeal as requesting, in part,
a review of the trial court's March 4, 2019 order finding
appellant not indigent. See Tex. R. Civ. P.
145(g)(1). As directed to do so by our April 4th order, the
trial court clerk and court reporter have filed a record of
the trial court proceedings on appellant's claim of
indigence. We reverse the trial court's order.
trial court's order followed a hearing on the trial
court's own objection to Booker's statement of
inability to afford costs. At the hearing, the trial court
explained its reasons for objecting to Booker's statement
of inability as follows:
Part of the basis is the fact that there is some money that
you're going to receive from the Court's registry at
some point. The other part is the fact that you're able
to live in a relatively normal way, and you - you submitted
an affidavit saying that you had no income whatsoever, but
you had $3, 500 a month or so in payments on a monthly basis.
testified that he receives public benefits. On the record,
the trial court stated that it believed Booker received
public benefits and that it was "not concerned about
that." Booker testified that he suffered an assault on
February 28, 2018. He was able to continue working until he
was hospitalized in April of 2018 and had emergency surgery
on his lung. Since that time, his friend Nicole Smith has
paid Booker's expenses. Prior to his health issues,
Booker worked as a mediator for ReSync Resolution Services, a
company owned by Booker and Smith. ReSync closed in June of
2018. Booker testified that he consistently has seven to
eight doctor's appointments a week. He recently began
therapy in a hyperbaric chamber five days a week.
testified that she is a member of ReSync and that it is not
currently operating because Booker is the mediator, and he
cannot work. She stated that ReSync has no money. Smith
testified that Booker was injured on February 28th and that
"[t]here was a gradual decline from there, still able to
do some work." In April, Booker suffered a sharp decline
resulting in hospitalization for a hematoma on the lung
related to the injury in February. Following his release from
the hospital, Smith had to give him "IV's" for
approximately two months. Smith testified that Booker lives
with her. She pays Booker's bills, but she expects him to
pay her back. She said the money in the registry of the court
belongs to her because she paid it. Smith testified that she
was currently unable to loan Booker any money.
for appellee Anissa Mahmoudi called Sean Moniri to testify.
Moniri was the real estate agent for the house currently
leased to Smith. Both Booker and Smith submitted lease
applications dated April 19, 2018, along with their paystubs.
Booker's ReSync paystub showed that he earned $2, 942 for
the period March 11, 2018 through March 24, 2018 and a
year-to-date income of $20, 302.56.
cross-examination, Moniri testified that when he met with
Booker and Smith at the property in April, he understood
Booker had been in the hospital and observed that he was
walking very slowly.
Rule of Civil Procedure 145 exempts a party from paying court
costs, including the fees for the clerk's and
reporter's records, if the party files a statement
showing he does not have the funds to pay. See Tex.
R. Civ. P. 145(a), (c). 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, on its own motion, require a party to prove the
inability to afford costs if evidence comes before the court
that the party may be able to afford costs. See id.
145(f)(4). 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 person can pay costs, but
whether the person can afford to pay costs" and still
pay for "basic essentials, like housing or food."
See id. 145, cmt.
test for determining indigence is whether the record as a
whole shows "by a preponderance of the evidence that the
[party] would be unable to pay the costs, or a part thereof,
or give security therefor, if he really wanted to and made a
good-faith effort to do so[.]" In re C.H.C.,
331 S.W.3d 426, 429 (Tex. 2011) (citing Higgins v.
Randall Cnty. Sheriff's Office, 257 S.W.3d 684, 686
(Tex. 2008)). This standard is met by proof that the party
depends on public assistance. See Griffin Indus., Inc. v.
Thirteenth Court of Appeals, 934 S.W.2d 349, 351 (Tex.
1996); see also Goffney v. Lowry, 554 S.W.2d 157,
159-160 (Tex. 1977) ("The fact that any individual is
dependent upon the charity of the public afforded through the
various welfare programs is, by itself, prima facie evidence
that the person is financially unable to pay the court costs
or give security therefor."). To overcome this proof,
evidence must be presented that the party "is not
dependent on food stamps or that other funds are
available." See Griffin Indus., 934 S.W.2d at
352 (citing Sansom v. Sprinkle, 799 S.W.2d 776, 778
(Tex. App.-Fort Worth 1990, orig. proceeding)).
review the trial court's order to pay costs for an abuse
of discretion. See In re A.L.V.Z., 352 S.W.3d 568,
570 (Tex. App.-Dallas 2011, no pet.). A trial court's
order to pay costs 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 id. As the fact finder, the trial
court is the sole judge of the credibility of the witnesses
and evidence. See In re A.R., 236 S.W.3d 460, 471
(Tex. App.-Dallas 2007, no pet.) (op. on reh'g). However,
the trial court ...