Published order issued June 1, 2017




                                     In The
                               Court of Appeals
                                    For The
                           First District of Texas

                              NO. 01-17-00016-CV

                   DALE PATRICK KOEHNE, Appellant
                                V.
                 KALEIGH MICHELLE KOEHNE, Appellee

                    On Appeal from County Court at Law
                           Austin County, Texas
                     Trial Court Cause No. 2016L-6515

                                    ORDER


      Dale Patrick Koehne appeals from an order holding him in contempt and an

order revoking suspension of commitment to county jail. Koehne’s filed his notice

of appeal on December 27, 2016. On December 28, 2016, Koehne filed a

Statement of Inability to Afford Payment of Court Costs.

      Koehne subsequently filed requests for the reporter’s records of hearings

held on August 26, 2016, December 16, 2016, January 17, 2017, and January 23,

                                        1
2017. In requests for hearing records, Koehne attached his Statement of Inability as

well as Statements of Indigence.

      The court reporter filed a contest and an amended contest. Koehne filed an

answer to the contest and to the amended contest, claiming the contests were

untimely filed. A hearing was held on January 17, 2017, and the trial court signed

an order the same day sustaining the contest. On January 23, 2017, the trial court

signed an amended order, finding that Koehne had already paid for the reporter’s

record for the August 26, 2016 hearing. Another hearing was held on February 6,

2017, but the record contains no further order on Koehne’s ability to pay.

      The rules regarding indigence were revised effective September 1, 2016. See

TEX. R. CIV. P. 145; TEX. R. APP. P. 20.1. Under the revised rules, an appellant no

longer files an affidavit of indigence, but instead files a Statement of Inability to

Afford Payment of Court Costs. See TEX. R. CIV. P. 145(a). A court reporter may

contest the Statement by filing a motion, but there is no deadline for the filing of

the contest. See TEX. R. CIV. P. 145(f)(1).

      A party who files a statement of inability to pay court costs may be required

to prove his inability at an oral evidentiary hearing, but the party may not be

required to pay court costs unless the trial court holds an evidentiary hearing, with

proper notice given to the declarant. See TEX. R. CIV. P. 145(f)(5). If the trial court

determines that the declarant can afford to pay court costs, the trial court must
                                          2
issue an order containing detailed findings. See TEX. R. CIV. P. 145(f)(6). Absent a

challenge, a trial court order that the declarant can afford to pay court costs also

controls the costs on appeal unless the declarant files a motion in the appellate

court alleging a material change in circumstances. See TEX. R. APP. P. 20.1(b)(3).

      The declarant may challenge a ruling that the declarant can afford to pay

court costs by timely filing a motion in the appellate court. See TEX. R. CIV. P.

145(g)(1). Once an appellant appeals from a trial court’s order finding he or she

can afford to pay costs, the trial court clerk and court reporter must prepare at no

charge a record of all proceedings regarding the declarant’s claim of indigence.

TEX. R. CIV. P. 145(g)(3).

      Koehne filed a timely notice of appeal from the trial court’s order, which we

construe to be a motion challenging the order under Rule 145(g)(1). Because the

trial court’s order contained no findings, we issued an order on March 7, 2017,

requesting the preparation of detailed findings as required by Rule 145(f)(6). A

supplemental clerk’s record was filed on April 5, 2017, containing the trial court’s

findings.

      The following is a summary of the trial court’s findings:

      1. Koehne had paid his attorney’s fees of more than $12,000;

      2. Koehne’s attorney sent the court reporter a check for $930 in payment for
      the August 16, 2016 hearing record;

                                         3
      3. At the time of the August 16, 2016 hearing, Koehne was employed, and
      was earning approximately $2,000.00 per month in gross wages;

      4. Koehne had expenses of $500, leaving $1,500, to go toward other
      financial obligations;

      5. Koehne also had worked for his parents and was paid cash;
      6. Koehne was not working or had not sought employment from August
      2016 – December 2016;
      7. Koehne occasionally received payment for odd jobs at his cousin’s shop,
      but he did not know the total amount his cousin had paid him;

      8. Koehne has borrowed money from his parents to pay his attorneys;

      9. Koehne’s truck is paid for and he may be able to get a loan using the truck
      as collateral, but not from a bank;
      10. The cost of the August 26, 2016 reporter’s record was $500-550; and
      11. Koehne’s Statement of Inability does not meet the requirements of TEX.
      R. APP. P. 20.1(b) in that is does not show his inability or ability to pay some
      of the reporter’s record costs.

      Based on these findings, the trial court concluded that Koehne was not

indigent for purposes of receiving a free reporter’s record. The trial court also

found Koehne had withdrawn requests for free reporter’s records of the hearings

held on August 26, 2016 and January 23, 2017 (these were withdrawn because

Koehne’s attorney had allegedly paid for these, however, our records show no

hearing record for January 23, 2017 has been filed). The records of the January 17,

2017 and February 6, 2017 hearings on the contests to Koehne’s affidavit of

indigence have also been filed. Thus, the reporter’s records that have not yet been

filed are of hearings held on December 16, 2016 and January 23, 2017.

                                          4
      We review a trial court’s order using an abuse-of-discretion standard. See

Arevalo v. Millan, 983 S.W.2d 803, 804 (Tex. App.—Houston [1st Dist.] 1998, no

pet.). In deciding whether the declarant is unable to afford to pay court costs, the

test is whether the declarant proved either that he receives public assistance, is

being assisted pro bono by counsel, or is unable to afford the payment of court

costs. See TEX. R. CIV. P. 145(e). We may find an abuse of discretion by the trial

court only if the trial court’s ruling is “so arbitrary and unreasonable as to be

clearly wrong.” Arevalo, 983 S.W.2d at 804. Although a trial court may evaluate

the declarant’s credibility, the court may not disregard evidence establishing the

declarant’s inability to afford to pay court costs, particularly when that evidence is

not rebutted. In re Sosa, 980 S.W.2d 814, 816 (Tex. App.—San Antonio 1998,

orig. proceeding).

      We first address the trial court’s final finding of fact that Koehne’s

Statement of Inability does not satisfy the rules because Koehne did not state

whether he could afford to pay a portion of the costs. Neither Rule 145 of the

Texas Rules of Civil Procedure nor Rule 20.1 of the Texas Rules of Appellate

Procedure, however, require such a statement. The Statement of Inability used by

Koehne is the one approved by the Texas Supreme Court. See TEX. R. CIV. P.

145(b); TEX. R. APP. P. 20.1. This form does not ask a declarant to state what

portion of costs he or she is able to afford. Thus, the trial court abused its

                                          5
discretion in determining that Koehne’s affidavit was deficient for not including a

statement regarding his ability to pay a portion of the costs.

      Turning to the trial court’s other findings, many are expressly based on

Koehne’s financial condition in August 2016, rather than on his current financial

condition. Although some of Koehne’s financial conditions are the same, some are

not. For example, the record shows that when Koehne filed his Statement of

Inability, he was living with his parents, had been unemployed since February

2016 except for a 90-day temporary job and the occasional odd job working for his

cousin. Thus, the trial court abused its discretion in determining Koehne’s current

ability to pay costs based on his August 2016 testimony about short-term

employment that paid approximately $2,000 per month.

      As for the finding that Koehne was able to borrow money, Koehne testified

that his family had loaned him money to pay his attorney’s fees but were no longer

able to loan him money, he was unable to pay his current attorney and she was now

“operating without receipt of payment.” As for the payment made by his attorney

to the court reporter, Koehne testified that he does not know the origin of those

funds, but he did not pay it. The trial court also found that Koehne could borrow

money using his truck as collateral. However, Koehne’s 2007 truck had almost

200,000 miles, was valued at $1759, and already has a lien against it. Thus, the



                                           6
record does not support the finding that Koehne can borrow money to pay court

costs.

         Additionally the record showed that Koehne had debts of approximately

$22,000 for attorney fees, unpaid medical bills (his and his children’s), and

outstanding child and spousal support. Finally, Koehne was unable to seek or

obtain employment after December 16, 2016, because he was in jail for

nonpayment of child support and had no funds for bond. Thus, his expenses exceed

his income.

         The evidence shows Koehne did not have the ability to pay court costs. He

has no current income, his expenses exceed his ability to pay, he has no cash or

assets that can be sold to pay costs, he is unable to borrow money, and he is

currently in jail. Although the trial court was required to evaluate Koehne’s

credibility, it was not free to disregard the evidence of Koehne’s current financial

condition and focus instead on Koehne’s financial condition in August 2016, when

he had a short-term job and was not in jail. See Sosa, 980 S.W.2d at 816 (granting

relief because unrebutted testimony established that expenses exceeded income and

no assets were available to finance payment of costs on appeal); In re A.M., –

S.W.3d –, No. 08–16–00277–CV, 2016 WL 6835727, at * 3 (Tex. App.—El Paso

Nov. 21, 2016, no pet.) (holding trial court abused discretion in concluding

appellant could afford to pay court costs where evidence established monthly

                                         7
expenses exceeded average monthly income); In re N.V.R., No. 06–17–00022–CV,

2017 WL 727261, at *3 (Tex. App.—Texarkana Feb. 24, 2017, no pet.) (holding

trial court abused its discretion in determining appellant could afford to pay court

costs where no evidence controverted his proof of inability). Because Koehne

presented evidence he was currently unable to afford the costs on appeal, and no

evidence rebutted this testimony regarding Koehne’s current financial condition,

the trial court’s determination that Koehne could afford to pay court costs was “so

arbitrary and unreasonable as to be clearly wrong.” Arevalo, 983 S.W.2d at 804;

Sansom v. Sprinkle, 799 S.W.2d 776, 778 (Tex. App.—Fort Worth 1990, orig.

proceeding) (requiring trial court to withdraw order sustaining contest because

appellant presented evidence supporting indigence and no evidence rebutted

appellant’s testimony). On the record before us, we find the trial court abused its

discretion in sustaining the court reporter’s contest.

      We reverse the trial court’s January 17, 2017 order and we order that

Koehne may proceed with this appeal without payment of filing fees or costs for

the record.

      We reinstate the appeal on the active docket and order the court reporter to

file within 30 days of the date of this order the reporter’s records of hearings held

December 16, 2016, and January 23, 2017. Appellant’s brief will be due 30 days

after these reporter’s records are filed.

                                            8
      It is so ORDERED.

                                      PER CURIAM

Panel consists of Justices Higley, Bland, and Brown.
Publish.




                                        9
