Court of Appeals of Texas, Sixth District, Texarkana
Appeal from the 5th District Court Bowie County, Texas Trial
Court No. 17C1549-005
Morriss, C.J., Burgess and Stevens, JJ.
with the filing of his notice of appeal from the trial
court's judgment adjudicating him a sexually violent
predator and involuntarily committing him to a residential
treatment facility, Daniel Allen Metcalf filed a declaration
of indigency in the Fifth Judicial District Court of Bowie
County pursuant to Rule 145 of the Texas Rules of Civil
Procedure and Section 13.003(a)(1) of the Texas Civil
Practice and Remedies Code. See Tex. R. Civ. P. 145;
Tex. Civ. Prac. & Rem. Code Ann. §
13.003(a)(1). Metcalf then filed, in reliance on his
declaration, a motion for the preparation of the
reporter's record without charge, averring that he
intended to raise two issues on appeal: (1) whether the trial
court committed reversible error by admitting improper
hearsay evidence and (2) whether the evidence was legally and
factually sufficient to support a finding that Metcalf is a
sexually violent predator. See Tex. Civ. Prac. &
Rem. Code Ann. § 13.003(a)(2). Without conducting a
hearing, the trial court denied Metcalf's motion, finding
the appeal frivolous.
has filed a motion in this Court pursuant to Rule 145(g) of
the Texas Rules of Civil Procedure. See Tex. R. Civ.
P. 145(g) (providing for appellate review of trial
court's Rule 145 order). Under Rule 145, "A party
who files a Statement of Inability to Afford Payment of Court
Costs cannot be required to pay costs except by order of the
court as provided by this rule." Tex.R.Civ.P. 145(a).
Metcalf's statement was made under penalty of perjury, as
required by the Rule, and was filed by the clerk. The Rule
further requires the declarant to provide, in the statement
of inability to pay costs, evidence of his inability to
afford costs. Here, Metcalf's declaration states that he
has no income and is indigent due to incarceration.
Regardless of the statement, "[t]he declarant may not be
required to pay costs without an oral evidentiary
hearing," and "[t]he declarant must be given ten
days' notice of the hearing." Tex.R.Civ.P.
145(f)(5). Finally, "[a]n order requiring the declarant
to pay costs must be supported by detailed findings that the
declarant can afford to pay costs." Tex.R.Civ.P.
complains that the trial court failed to comply with Rules
145(f)(5) and (6) and summarily denied his motion on the
basis that his appeal is frivolous. Metcalf asks this Court
to require the trial court to hold an evidentiary hearing
whereby he may prove his inability to afford costs, to
provide him 10 days' written notice of the hearing, and
to make detailed findings that he can afford to pay costs,
should the trial court so find. Metcalf further claims that
the reporter's record is indispensable given his legal
and factual sufficiency arguments. See Tex. Civ.
Prac. & Rem. Code Ann. § 13.003(a)(2)(B).
not find it necessary to abate this matter for a hearing
on Metcalf's indigence. Under Section
13.003(a)(2)(A) of the Texas Civil Practice and Remedies
Code, "a trial court's frivolousness determination
has the consequence of denying an indigent appellant the
right to a free clerk's record and reporter's record
of the underlying trial." In re T.C., 200
S.W.3d 788, 792 (Tex. App.-Fort Worth 2006, no pet.).
"This . . . consequence, the statutory denial of a free
appellate record to an indigent appellant, occurs, of course,
only when the appellant is indigent." Id.;
see Baughman v. Baughman, 65 S.W.3d 309, 315 (Tex.
App.-Waco 2001, pet. denied) (by determining that appellant
was not indigent, it was unnecessary for the trial court to
reach issues of whether the appeal was frivolous and whether
the record was necessary to present issues on appeal). Stated
differently, the denial of a free record because of
frivolousness presumes that the appellant is indigent. Here,
it is apparent that the trial court did not deny the free
record because Metcalf was not indigent. The trial court
denied a free record because of frivolousness.
said, the trial court did not conduct a hearing on the issue
of whether the appeal is, in fact, frivolous. "As the
Court made clear in Coppedge [v. United
States, 369 U.S. 438, 446-48 (1962)], while the federal
Constitution does not guarantee an appellant a free record to
pursue a frivolous appeal, it does require that she receive a
sufficient record, without charge, to establish the trial
court erred in finding that her appeal is frivolous."
De La Vega v. Taco Cabana, Inc., 974 S.W.2d 152, 154
(Tex. App.-San Antonio 1998, no pet.). In the absence of a
frivolity hearing, Metcalf cannot establish, by a
"sufficient record," that the trial court erred in
finding that his appeal is frivolous. "Whether a ground
for appeal is frivolous necessarily involves questions of
both fact and law; consequently, this issue must be decided
by the trial court in the first instance" following a
hearing on this issue. Garza v. Garza, 155 S.W.3d
471, 477 (Tex. App.-San Antonio 2004, no pet.).
we abate this appeal to the trial court to conduct a hearing
on the question of whether Metcalf's appeal is frivolous.
See Tex. Civ. Prac. & Rem. Code Ann. §
13.003(a)(2)(A). In making this determination, the trial
court "may consider whether the appellant has presented
a substantial question for appellate review." Tex. Civ.
Prac. & Rem. Code Ann. § 13.003(b).
instruct the trial court to conduct the hearing within
fifteen days of the date of this order. The trial court's
findings shall be entered into the record of the case and
filed with this Court as a supplemental clerk's record
within ten days of the date of the hearing. The supplemental
reporter's record of the hearing shall be filed within
ten days of the date of the hearing.
appellate timetables are stayed and will resume on our
receipt of the supplemental clerk's and reporter's
This code provision requires the court
reporter and the clerk to provide the record without cost if
the appellant files an affidavit of inability to pay the
costs of appeal and the trial court finds that the appeal is
not frivolous and the record is needed to decide the issue
presented by the appeal. Tex. Civ. Prac. & Rem. Code Ann.
§ 13.003(a)(1), (2). "In determining whether an
appeal is frivolous, a judge may consider whether the
appellant has presented a ...