                                 Fourth Court of Appeals
                                         San Antonio, Texas

                                    MEMORANDUM OPINION
                                             No. 04-17-00633-CV

                                                 IN RE J.P.N.

                                      Original Mandamus Proceeding 1

Opinion by:       Rebeca C. Martinez, Justice

Sitting:          Marialyn Barnard, Justice
                  Rebeca C. Martinez, Justice
                  Irene Rios, Justice

Delivered and Filed: January 31, 2018

AFFIRMED

           Relator J.P.N. appeals the trial court’s order finding him not indigent and denying his

request for a free reporter’s record in his mandamus proceeding before this court. We conclude

the trial court did not abuse its discretion in sustaining the contest to Relator’s affidavit of

indigence and finding Relator has the ability to pay for the reporter’s record. We affirm the trial

court’s order.

                                                 BACKGROUND

           Relator was married to real party in interest, Y.N. The couple had two children when they

divorced in 2010. In the final divorce decree, Relator was designated sole managing conservator

and Y.N. was granted limited access to the children. Since the divorce, the parties have engaged



1
 This proceeding arises out of Cause No. 2009-CI-06183, styled In the Interest of J.T.N. and J.T.A.N, pending in the
407th Judicial District Court, Bexar County, Texas, the Honorable Cathleen M. Stryker presiding.
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in ongoing litigation involving the divorce decree’s custody provisions. On August 31, 2017,

following a hearing on July 17-18, 2017, the trial court issued temporary orders requiring a child

custody evaluation and psychological evaluations on both parents, with Relator to pay the costs of

the evaluations. Relator challenged this order with a petition for writ of mandamus filed on August

31, 2017.

       Relator did not file a reporter’s record of the July 17-18, 2017 hearing with his petition for

writ of mandamus. On October 2, 2017, Relator filed an affidavit of indigence. The court reporter

filed a contest to the affidavit of indigence. On October 26, 2017, the trial court conducted a

hearing on the contest at which Relator testified. At the conclusion of the hearing, the trial court

sustained the contest and signed an order stating Relator has the ability to pay the costs of court

incurred in the custody dispute, including the court reporter’s fee. Relator filed a motion appealing

the trial court’s order denying him indigent status. On appeal, Relator contends he is involuntarily

unemployed, has no income, receives food stamps and Medicaid for himself and the children, and

is assessed as 80% disabled by the U.S. Department of Veterans’ Affairs.

                                              ANALYSIS

       We review a trial court’s order sustaining a contest to an affidavit of indigence for an abuse

of discretion. White v. Bayless, 40 S.W.3d 574, 576 (Tex. App.—San Antonio 2001, pet. denied).

When a contest is filed, the affiant bears the burden to prove his indigence by a preponderance of

the evidence. Higgins v. Randall Cnty. Sheriff’s Office, 257 S.W.3d 684, 686 (Tex. 2008);

Basaldua v. Hadden, 298 S.W.3d 238, 241 (Tex. App.—San Antonio 2009, no pet.) (per curiam).

The test for determining indigence is whether the record as a whole shows by a preponderance of

the evidence that the affiant would be unable to pay all or part of the costs, or give security for the

costs, “if he really wanted to and made a good-faith effort to do so.” Higgins, 257 S.W.3d at 686;

Basaldua, 298 S.W.3d at 241.
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       “A litigant who voluntarily remains unemployed and lives by the generosity of relatives is

not entitled to require the officers of the court to render services free while other citizens are

required to pay for similar services.” Wallgren v. Martin, 700 S.W.2d 28, 30 (Tex. App.—Dallas

1985, orig. proceeding). A trial court does not abuse its discretion in sustaining a contest to an

affidavit of inability to pay when the record shows a party has the ability to earn money through

future employment. Id. Further, the failure by a person claiming indigence to make a real attempt

to obtain or find assets that could be used to provide funds for paying for the appellate record

constitutes evidence that a good-faith effort has not been made, and a trial court does not abuse its

discretion in sustaining a contest based on such evidence. See White, 40 S.W.3d at 576.

       Relator had the burden to prove by a preponderance of the evidence that he cannot pay the

cost for preparing the reporter’s record for his mandamus proceeding. In his affidavit of inability

to pay, Relator contends he has $132,793.93 in debt, owns property valued at $6,540.71, has total

monthly expenses of $2,752.39, and a total monthly income of $2,108.37.

       At the hearing on the contest to Relator’s affidavit of indigence, Relator offered his own

testimony and that of his mother. Relator has a law degree, a bachelor’s degree in biochemistry,

an associate’s degree in cardiopulmonary technology, and a Master’s Level Certification in

Education. Relator testified he was discharged from the military and assessed at 70% disabled due

to anxiety and depression; his disability rating was increased to 80% in May 2017. Relator

attended law school after being discharged from the military, passed the bar exam, and has earned

income as an attorney. Relator was employed as a teacher at the beginning of 2017, but “stopped

being able to go through this case and function as a teacher.” According to Relator, his employer

terminated him because “there were so many trials.” Relator’s certification in cardiopulmonary

technology is expired, and he has not taken any action to reactivate that certification. According

to Relator, he has focused his job search in the legal profession.
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       Relator offered in evidence a document in which he acknowledged he owed his mother

$120,573.13. This money was allegedly loaned to Relator by his mother to pay legal expenses

arising from his child custody dispute. Relator also introduced testimony from his mother.

Relator’s mother testified that she had loaned Relator money in the past and he repaid her. She

stated she loaned him $120,573.13 for legal fees and expected him to repay the loan. Relator’s

mother also testified she loaned Relator money to buy a house, but then he got a loan for the house

that resulted in her recouping most of her loan, except for “about $24,000 to $27,000.”

       Based on our review of the record before us, we cannot say the trial court abused its

discretion in sustaining the contest to Relator’s affidavit of inability to pay. In making its ruling,

the trial court made several findings with respect to Relator’s ability to pay for the costs of the

reporter’s record. The court found Relator has the ability to continue to work as a licensed attorney

by virtue of his past employment and his current legal work in the instant case; was current on his

mortgage and property taxes; has an annual income over the Federal Poverty Guidelines threshold

for a household of three; spends the majority of his day working on this litigation; has received

money and charity from his mother in the past and continues to do so, and his mother will not

“impose legal collection practices to recoup” any of this money; and Relator is “voluntarily

unemployed and lives by the generosity of relatives.”

       The failure by a person claiming indigence to make a real attempt to obtain or find assets

that could be used to provide funds for paying for the appellate record constitutes evidence that a

good-faith effort has not been made, and a trial court does not abuse its discretion in sustaining a

contest based on such evidence. See White, 40 S.W.3d at 576. The record here supports the trial

court’s fact findings and conclusion that Relator has failed to make a good-faith effort to obtain

funds to pay the fee for the court reporter’s record. Because the evidence does not show that

Relator “would be unable to pay the costs, or a part thereof, if he really wanted to and made a
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good-faith effort to do so,” the trial court did not abuse its discretion in sustaining the contest to

his claim of indigence. See Higgins, 257 S.W.3d at 686; see also Basaldua, 298 S.W.3d at 241.

Therefore, Relator is not entitled to proceed without paying for the court reporter’s record. See

TEX. R. CIV. P. 145.

        Based on the foregoing, we hold the trial court did not abuse its discretion in sustaining the

contest to Relator’s claim of indigence and, we affirm the trial court’s order. Relator is therefore

ordered to: (1) pay, or make arrangements to pay, for the reporter’s record within fifteen days from

the date of this opinion; and (2) file written verification of such payments or payment arrangements

with this court no later than the 15th day after the date of this opinion. We caution Relator that

failure to pay for the reporter’s record will result in consideration of this mandamus proceeding

without a reporter’s record. See TEX. R. APP. P. 52.7; Walker v. Packer, 827 S.W.2d 833, 837

(Tex. 1992) (party seeking mandamus relief bears the burden of providing this court with a record

sufficient to establish its right to relief).

                                                   Rebeca C. Martinez, Justice




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