                                                                                      ACCEPTED
                                                                                  03-15-00107-CV
                                                                                          5540254
                                                                       THIRD COURT OF APPEALS
                                                                                  AUSTIN, TEXAS
                                                                              6/4/2015 9:48:08 AM
                                                                                JEFFREY D. KYLE
                                                                                           CLERK
                        NO. 03-15-00107-CV
__________________________________________________________________
                                                            FILED IN
                 IN THE THIRD COURT OF APPEALS 3rd COURT OF APPEALS
                                                      AUSTIN, TEXAS
                          AUSTIN, TEXAS
                                                  6/4/2015 9:48:08 AM
__________________________________________________________________
                                                    JEFFREY D. KYLE
                                                             Clerk
                       SUZANNA ECKCHUM
                                                              Appellant,

                                 v.

      THE STATE OF TEXAS FOR THE PROTECTION OF HAL KETCHUM
                                                         Appellee.
__________________________________________________________________

       ON APPEAL FROM THE COUNTY COURT AT LAW NO. 2
                        OF COMAL COUNTY
                      CAUSE NO. C2014-1690C
__________________________________________________________________

APPELLANT SUZANNA ECKCHUM’S MOTION FOR REHEARING ON
              COSTS ASSESSED ON CONSOLIDATION
__________________________________________________________________

                               Mysha Lubke
                               BAKER BOTTS L.L.P.
                               State Bar No. 24083423
                               98 San Jacinto Blvd., Suite 1500
                               Austin, TX 78701
                               (512) 322-2500
                               (512) 322-2501 (fax)
                               mysha.lubke@bakerbotts.com

                                             ATTORNEY FOR APPELLANT




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TO THE HONORABLE THIRD COURT OF APPEALS:

                    Appellant Suzanna Eckchum moves for rehearing of the Court’s May

21, 2015 Judgment ordering appellant to pay all costs relating to this appeal, both

in this Court and the court below. Appellant respectfully requests that this Court

grant this motion for rehearing, withdraw the judgment rendered on May 21, 2015,

and render a new judgment that assesses no costs because Ms. Eckchum is

indigent.


                            ISSUE PRESENTED FOR REVIEW

                    The only issue presented for the Court’s review is whether costs

should be assessed against Appellant who is indigent.


                                        ARGUMENT

                    When the Court granted Appellant’s motion to consolidate this appeal

with cause number 03-15-00270-CV and dismissed this cause number, the Court

also assessed costs against Appellant. While Tex. R. App. P 42.1(d) provides that

costs for dismissed appeals be taxed against the appellant, many courts have

declined to tax costs against indigent appellants on dismissal. In Interest of J.M.-

H., 04-15-00003-CV, 2015 WL 2124777, at *1 (Tex. App.—San Antonio May 6,

2015, no. pet. h.) (granting appellant’s motion to dismiss and ordering “that no

costs be assessed against appellant because he is indigent”); In re J.O., 04-14-

00516-CV, 2014 WL 5199539, at *1 (Tex. App.—San Antonio Oct. 15, 2014, no
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pet.) (same); Shabazz v. Etheridge, 07-14-00235-CV, 2014 WL 4055840, at *1

(Tex. App.—Amarillo Aug. 14, 2014, no pet.) (same); In re R.D., 08-04-00304-

CV, 2005 WL 82204, at *1 (Tex. App.—El Paso Jan. 13, 2005, no pet.) (making

no order regarding costs because appellant is indigent); see also Weather v.

Wheeler Coatings Asphalt, Inc., 03-00-00660-CV, 2001 WL 194277, at *1 (Tex.

App.—Austin Feb. 28, 2001, no pet.) (holding that because no party was indigent,

costs were taxed to the party incurring them in a judgment dismissing the case after

a settlement agreement);


                    Since filing her “Affidavit of Indigency” in the trial court along with

her notice of appeal,1 nothing in Ms. Eckchum’s financial status has changed such

that she is now able to pay any of the costs of appeal. See Tex. R. App. p. 20.1(m).

Further, the costs of this appeal are substantially the same as the costs of the appeal

for cause number 03-15-00270-CV into which this appeal was consolidated. Both

appeals stem from the same facts, involve the same parties, and require the same

records and filings on appeal. To require Ms. Eckchum to pay the costs of this

dismissed appeal is effectively requiring Ms. Eckchum to advance the costs of the

consolidated appeal although she is indigent. Though Ms. Eckchum’s affidavit of

indigence was initially contested, that contest was abandoned and/or overruled by


1
 CR at 22-23. The clerk’s record was filed in this Court under this cause number on February
21, 2015.
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operation of law, the allegations in the affidavit are deemed true, and Ms. Eckchum

is allowed to proceed with her now-consolidated appeal without advance payment

of costs. Tex. R. App. P. 20.1(i)(4); Montalvo v. JP Morgan Chase Bank, N.A.,

375 S.W.3d 553, 554 (Tex. App.—Houston [14th Dist.] 2012, no pet.).


                    Therefore, because Ms. Eckchum filed an affidavit of indigence to

establish her inability to pay costs, she asks that no costs be assessed against her in

this dismissed cause number. In re L.R., 07-12-00303-CV, 2012 WL 3536787, at

*1 (Tex. App.—Amarillo Aug. 16, 2012, no pet.) (granting appellant’s request to

dismiss the appeal and holding that “[a]ppellant timely filed an affidavit of

indigency, so costs are not assessed against appellant.”).


                                   PRAYER FOR RELIEF

                    Appellant respectfully requests that this Court grant this motion for

rehearing, withdraw the judgment rendered on May 21, 2015, and render a new

judgment assessing no costs because Ms. Eckchum is indigent.




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                    Respectfully submitted,

                    By: /s/ Mysha Lubke
                       Mysha Lubke
                       State Bar No. 24083423
                       mysha.lubke@bakerbotts.com
                       BAKER BOTTS L.L.P.
                       98 San Jacinto Blvd., Suite 1500
                       Austin, TX 78701
                       Telephone: (512) 322-2500
                       Facsimile: (512) 322-2501

                          ATTORNEY FOR APPELLANT
                          SUZANNA ECKCHUM




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                        CERTIFICATE OF COMPLIANCE

     As required by Texas Rule of Appellate Procedure 9.4(i), I certify that this
motion for rehearing contains 516 words, excluding the parts of the motion
exempted by Rule 9.4(i)(1).


                                       / s / Mysha Lubke
                                       Mysha Lubke


                          CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the foregoing has been served
by electronic filing and fax on June 4, 2015:

         Counsel for the State of Texas for the Protection of Hal Ketchum:
         The Honorable Jennifer A. Tharp
         Comal County Criminal District Attorney
         150 North Seguin, Suite 370
         New Braunfels, Texas 78130
         preslj@co.comal.tx.us
         fax: 830-608-2008

                                       / s / Mysha Lubke
                                       Mysha Lubke




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