                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-12-00127-CV


BEVERLY ANN GARVIN,                                                  APPELLANT
INDIVIDUALLY AND D/B/A
DENTON LIFESTYLES

                                        V.

MEISSNER PUBLISHING, LTD.,                                           APPELLEES
HAROLD MEISSNER, LISA
MEISSNER, AND MINDY BRUCE


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         FROM THE 431ST DISTRICT COURT OF DENTON COUNTY

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                                    ORDER

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      This court has received the record from the trial court=s hearing on the

contest to appellant Beverly Ann Garvin=s affidavit of indigency and reviewed it to

determine whether the trial court abused its discretion in sustaining the contest.

See In re Arroyo, 988 S.W.2d 737, 739 (Tex. 1998); In re C.D.S., 172 S.W.3d

179, 184 (Tex. App.––Fort Worth 2005, no pet.).
      The uncontroverted evidence shows that appellant=s sole income is from

social security benefits, that she is unemployed but looking for work, that her

living expenses and part of her mortgage are being paid by her ex-husband, and

that she is unable to pay for even a partial record of $925. See In re Doe 4, 19

S.W.3d 322, 325–26 (Tex. 2000) (holding that trial court cannot ignore

uncontroverted evidence even if trial court does not find witness credible).

      The test for indigency on appeal is whether an appellant shows by a

preponderance of the evidence that she would be unable to pay costs if she

really wanted to and made a good faith effort to do so. In re C.D.S., 172 S.W.3d

at 184. The supreme court has held that “[t]he rules allowing one to proceed

without being required to pay costs or give security therefor . . . do not require the

litigant to borrow money which cannot be repaid except by depriving the litigant

of the necessities of life.” Goffney v. Lowry, 554 S.W.2d 157, 159 (Tex. 1977);

Garza v. Garza, 155 S.W.3d 471, 476 (Tex. App.––San Antonio 2004, order).

Nor do those rules require a litigant to prove she has exhausted all potential

sources of charity. Garza, 155 S.W.3d at 476. Although appellant testified that

she had not attempted to obtain a loan on her home equity, she testified that

because of the $300,000 judgment against her and her credit history, she did not

think she would be able to obtain one. In addition, no one presented evidence

showing how appellant would be able to make payments on such a loan while

she was unemployed and receiving only social security as income. See Griffin

Indus., Inc. v. Honorable Thirteenth Court of Appeals, 934 S.W.2d 349, 351


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(“Requiring [appellant] to obtain formal loan rejections would exalt form over

substance . . . .”); see also Tex. R. App. P. 20.1(b)(2) (providing that affidavit

must provide court with income only of party and party’s spouse); Rodgers v.

Mitchell, 83 S.W.3d 815, 818 (Tex. App.––Texarkana 2002, no pet.) (“The court

must consider only the [appellant’s] personal financial condition, not those of his

parents, other relatives, friends, or employers.”).

      Accordingly, we reverse the trial court=s order sustaining the contest and

hold that appellant is entitled to the reporter’s record on appeal without

prepayment of costs. See Tex. R. App. P. 20.1(k); Garza, 155 S.W.3d at 477;

Gonzalez v. Gonzalez, No. 08-01-00453-CV, 2003 WL 1759587, at *2–3 (Tex.

App.––El Paso 2003, no pet.) (mem. op.); see also Tex. R. App. P. 20.1(m)

(providing that if indigent party later becomes able to pay for costs, appellate

court may order party to pay costs to the extent of that party’s ability).

      The reporter’s record on the merits is due Monday, November 5, 2012.

      The clerk of this court is directed to transmit a copy of the order to the

attorneys of record, the trial court judge, the trial court clerk, and the court

reporter.

      DATED September 21, 2012.

                                                      PER CURIAM




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