Order issued November 1, 2012




                                   In The
                            Court of Appeals
                                  For The
                        First District of Texas


                            NO. 01-11-00552-CV


            MAXINE ADAMS AND CECIL ADAMS, Appellants

                                     V.

                         REBECCA ROSS, Appellee


                  On Appeal from the 269th District Court
                          Harris County, Texas
                    Trial Court Cause No. 2010-12207


                       MEMORANDUM ORDER

     Appellants, Maxine Adams and Cecil Adams, filed a notice of appeal from

the trial court’s judgment of August 24, 2011. Appellant Maxine Adams filed an

affidavit of inability to pay the costs of appeal on December 15, 2011. The
appellee, Rebecca Ross, and the court reporter filed separate contests to the

affidavit, and the trial court sustained the contests. Appellant Maxine Adams

appeals the trial court’s order sustaining the contests.

      We affirm the trial court’s order sustaining the contests.

              Standard of Review and Governing Legal Principles

      Texas Civil Practice and Remedies Code section 13.003 sets out certain

requirements that must be met for an appellant to obtain a free record on appeal.

TEX. CIV. PRAC. & REM. CODE ANN. § 13.003(a) (West 2002). Section 13.003

states, in pertinent part, that a trial court clerk and court reporter shall provide

without cost a record for appeal only if:

             (1)    an affidavit of inability to pay the cost of the appeal has
                    been filed under the Texas Rules of Appellate
                    Procedure; and
             (2)    the trial judge finds:
                    (A) the appeal is not frivolous; and
                    (B) the statement of facts and the clerk’s transcript is
                           needed to decide the issue presented by the
                           appeal.

Id.

      The first of these requirements, to file an affidavit of inability to pay the

costs of the appeal, is governed by Rule 20.1 of the Texas Rules of Appellate



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Procedure.    Rule 20.1 allows a party to proceed on appeal without advance

payment of costs if (1) the party files an affidavit of indigence in compliance with

the rule, (2) the indigence claim is not contestable, the claim is not contested, or, if

contested, the contest is not sustained by written order, and (3) the party timely

files a notice of appeal. See TEX. R. APP. P. 20.1(a)(2).

      The trial court clerk, court reporter, or any interested party may file a contest

to the affidavit of indigence, but must do so within 10 days after the date the

affidavit is filed. TEX. R. APP. P. 20.1(e). If a contest is filed, the trial court must

either conduct a hearing or sign an order extending the time to conduct a hearing

“within 10 days after the contest [is] filed.” TEX. R. APP. P. 20.1(i)(2).

      If contested, the appellant bears the burden to prove his indigence by a

preponderance of the evidence. Higgins v. Randall County Sheriff's Office, 257

S.W.3d 684, 686 (Tex. 2008); see TEX. R. APP. P. 20.1(g); Few v. Few, 271 S.W.3d

341, 345 (Tex. App.—El Paso 2008, pet. denied); Arevalo v. Millan, 983 S.W.2d

803, 804 (Tex. App.—Houston [1st Dist.] 1998, no pet.). Once the appellant

establishes a prima facie showing of indigence, the party contesting the affidavit

has the burden to offer evidence to rebut what was established. See Griffin Indus.,

Inc. v. Honorable Thirteenth Court of Appeals, 934 S.W.2d 349, 352 (Tex. 1996).

“The test for determining indigence is straightforward: ‘Does the record as a whole


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show by a preponderance of the evidence that the applicant would be unable to pay

the costs, or a part thereof, or give security therefor, if he really wanted to and

made a good-faith effort to do so?’” In re C.H.C., 331 S.W.3d 426, 429 (Tex.

2011) (citing Higgins, 257 S.W.3d at 686).

      Unless, within the period set for the hearing, the trial court signs an order

sustaining the contest, the affidavit’s allegations will be deemed true and the party

will be allowed to proceed without advance payment of costs. TEX. R. APP. P.

20.1(i)(4); see C.H.C., 331 S.W.3d at 429; Higgins, 257 S.W.3d at 688. When, as

in this case, the trial court sustains the contest to the appellant’s affidavit, the

appellant may obtain the record pertaining to the trial court’s ruling and may

challenge that ruling as part of his appeal. See In re Arroyo, 988 S.W.2d 737, 738–

39 (Tex. 1998).

      We review the trial court’s order under an abuse of discretion standard.

White v. Bayless, 40 S.W.3d 576, 576 (Tex. App.—San Antonio 2001, pet.

denied). The trial court abuses its discretion if it acts without reference to any

guiding rules or principles or in an arbitrary or unreasonable manner. Id.




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                                       Analysis

      Appellant Maxine Adams filed her affidavit of indigence in the trial court on

December 15, 2011.1 See TEX. R. APP. P. 20.1(a)(2)(A), (c)(1). In her affidavit,

Maxine Adams addresses the factors required by Texas Rule of Appellate

Procedure 20.1(b). TEX. R. APP. P. 20.1(b); see also Higgins, 257 S.W.3d at 687–

88 (finding affidavit sufficient even though information on all factors was not

included).   Maxine Adams swears, inter alia, that she and her spouse, Cecil

Adams, earn $4600 per month, that they have expenses of $4233.37 per month,

and that the expenses include $97.46 per month for “SBC global phone/Internet”

and “TMobile [sic] (cell [sic] phone.”

      On December 19, 2011, appellee, Rebecca Ross, filed a timely contest to

Maxine Adams’ affidavit of indigence and a motion for a hearing on the contest,

including a request that “the Court extend the time for the hearing.” See TEX. R.

1
      Appellant Maxine Adams’s notice of appeal was filed after, not “with or before,”
      her notice of appeal. See TEX. R. APP. P. 20.1(c)(1) (requiring that affidavit of
      indigence be filed with or before notice of appeal). Nevertheless, we do not
      “require strict conformance with . . . formal aspects of Rule 20.1, including the
      requirement that an affidavit of indigence be filed ‘with or before the notice of
      appeal.’” Higgins v. Randall County Sheriff’s Office, 257 S.W.3d 684, 688–89
      (Tex. 2008); see TEX. R. APP. P. 20.1(c)(3) (requiring notice and opportunity to
      cure when appellant fails to file affidavit); TEX. R. APP. P. 37.3(b) (requiring
      notice and opportunity to cure prior to dismissing case based on appellant’s failure
      to pay clerk’s fee for preparing clerk’s record); TEX. R. APP. P. 44.3 (requiring
      notice and opportunity to cure prior to dismissing case based on formal defect in
      appellate procedure); Sprowl v. Payne, 236 S.W.3d 786, 787 (Tex. 2007).

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APP. P. 20.1(e). The court reporter also filed a timely contest to Maxine Adams’

affidavit of indigence on December 27, 2011. See TEX. R. APP. P. 4.1(a), 20.1(e).

      A hearing on the contests was timely held on December 28, 2011—nine

days after appellee’s contest was filed. See TEX. R. APP. P. 20.1(i)(2)(A) (requiring

hearing to be held or order extending time for hearing to be signed within 10 days

of filing of contest). Maxine Adams was not, however, present at the hearing. As

a result, the trial court signed a timely order extending the time to conduct the

hearing to January 6, 2012, to provide Maxine Adams the opportunity to be present

at the hearing and to present evidence. See TEX. R. APP. P. 20.1(i)(2)(A), (i)(3)

(authorizing extension of time for hearing up to 20 days from date order extending

time is signed).

      A second timely hearing was held on the contests to the affidavit of

indigence on January 6, 2012. See TEX. R. APP. P. 20.1(i)(2)(A), (i)(3). Once

again, Maxine Adams did not appear for the hearing. At the conclusion of the

hearing, the trial court timely signed orders sustaining both appellee’s and the court

reporter’s contests to Maxine Adams’ affidavit of indigence. See TEX. R. APP. P.

20.1(i)(4).

      On January 12, 2012, Maxine Adams filed a “Notice of Untimely Paupers

[sic] Contest Hearing Held On 1/6/2012 and Motion for Relief,” challenging the


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trial court’s orders on the grounds that the trial court did not timely sign an order

extending the time for the hearing on the contests and therefore did not have

jurisdiction to sustain the contests. Maxine Adams further filed a document on

January 18, 2012 challenging the trial court’s orders on the grounds that the trial

court’s orders were untimely, because, according to Maxine Adams, the trial court

was required to hold the hearing or to sign an order extending the time for the

hearing within 10 days of the date the affidavit was filed.

      Because a timely contest was filed and a timely hearing was held, Maxine

Adams was required to prove the affidavit’s allegations. See TEX. R. APP. P.

20.1(g). But the court reporter’s record shows that Maxine Adams failed to appear

at the hearing and therefore failed to present any evidence to establish her

indigence2 or to establish the cost of the appellate record. Because she failed to

appear at the hearing and present evidence, Maxine Adams cannot show that she

sustained her burden of proving the allegations in her affidavit and we cannot

2
      If Maxine Adams had been incarcerated, the affidavit would be considered as
      evidence and would be sufficient to meet her “burden to present evidence without
      [her] attending the hearing.” TEX. R. APP. P. 20.1(g)(1). Because she was not
      incarcerated, however, she was required to “prove the affidavit’s allegations.” Id.;
      cf. TEX. R. EVID. 802 (“Hearsay is not admissible except as provided by statute or
      these rules or by other rules prescribed pursuant to statutory authority.”); Lewallen
      v. Hardin, 563 S.W.2d 356, 357 (Tex. Civ. App.—Dallas 1978) (“The general rule
      is that affidavits have been held to be inadmissible hearsay upon the final trial of a
      case, and without probative force.”).

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conclude that the trial court abused its discretion in sustaining the contests to the

affidavit. See id.

      Furthermore, even if we consider Maxine Adams’ affidavit as evidence in

the hearing, the allegations in her affidavit establish that she has household income

of $4600 and expenses of only $4233.37, of which she spends $97.46 on

discretionary services. See In re Guardianship of Bryan Rombough, No. 02-11-

00181-CV, 2012 WL 1624027, at *5 (Tex. App.—Fort Worth May 10, 2012, no

pet.) (holding that trial court did not abuse its discretion in sustaining contest to

affidavit of indigence when appellant’s affidavit stated she paid for cell phone

service and cable and Internet service); In re A.L.V.Z., 352 S.W.3d 568, 571 (Tex.

App.—Dallas 2011, no pet.) (holding that trial court did not abuse its discretion in

sustaining contest to affidavit of indigence when appellant testified that she paid

for cable television and Internet access).     Based on Maxine Adams’ monthly

disposable income of $464.09, and the complete lack of evidence regarding the

cost of the appellate record, the trial court could reasonably conclude that Maxine

Adams is able to pay the $175 filing fee, the clerk’s fee, and the reporter’s fee. See

C.H.C., 331 S.W.3d at 429 (considering whether record, in whole, shows by

preponderance that “applicant would be unable to pay the costs, or a part thereof,

or give security therefor, if he really wanted to and made a good-faith effort to do


                                          8
so”); Basaldua v. Hadden, 298 S.W.3d 238, 241–42 (Tex. App.—San Antonio

2009, no pet.) (affirming trial court’s order sustaining contest when appellant’s

affidavit stated he made $500 per month, appellant testified he was not working as

much as he should, and appellant’s expenses were $390 per month).

      On the record before this Court, we cannot conclude that the trial court

abused its discretion by sustaining the contests to Maxine Adams’ affidavit of

indigence. See TEX. R. APP. P. 20.1(g); C.H.C., 331 S.W.3d at 429; A.L.V.Z., 352

S.W.3d at 571; Basaldua, 298 S.W.3d at 241–42.

      Accordingly, we affirm the trial court’s orders sustaining the appellee’s and

court reporter’s contests to the affidavit of indigence.

                                   PER CURIAM

Panel consists of Justices Keyes, Massengale, and Brown.




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