                                  NO. 07-10-00205-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL A

                                   AUGUST 15, 2011


                       HAROLD F. EGGERS, JR., APPELLANT

                                            v.

              JOHN TOWNES VAN ZANDT, II, WILLIAM VINCENT VAN
               ZANDT, K. B. V. Z., A MINOR BY AND THROUGH HER
               NEXT FRIEND JEANENE VAN ZANDT, JEANENE VAN
                 ZANDT, AND TVZ RECORDS, LLC, APPELLEES


             FROM THE 345TH DISTRICT COURT OF TRAVIS COUNTY;

      NO. D-1GN-06-01169; HONORABLE GISELA D. TRIANA-DOYAL, JUDGE


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                               MEMORANDUM OPINION

      Appellant Harold F. Eggers, Jr. sought to proceed on appeal without advance

payment of costs by filing an affidavit of indigence. Appellees1 contested the affidavit


      1
          Eggers’ affidavit of indigence was challenged by the court reporter, LaDelle
Abilez, the plaintiffs in the underlying litigation John Townes Van Zandt, II, William
Vincent Van Zandt, Katie Belle Van Zandt, a minor, by and through her next friend
Jeanene Van Zandt, Jeanene Van Zandt, and third-party defendant TVZ Records, LLC.
Throughout this opinion the contestants of Eggers’ affidavit of indigence are collectively
identified as “appellees” and the plaintiffs in the underlying litigation are collectively
identified as “the Van Zandts.”
and the trial court sustained the contest. On Eggers’ appeal, we find the trial court did

not abuse its discretion by sustaining the contest, and will affirm its order.


                                        Background


       The Van Zandts sued Eggers for declaratory relief and damages on claims

arising from the ownership of rights to sound recordings of the late musician, John

Townes Van Zandt. The case was tried to a jury which found in favor of the Van

Zandts. The court signed a money judgment on December 15, 2009.2 Following the

completion of trial but before judgment, Eggers filed for relief under Chapter 13 of the

United States Bankruptcy Code.3 His Chapter 13 plan was confirmed by order of the

bankruptcy court.


       Meanwhile, Eggers filed a notice of appeal of the December 2009 judgment in

the underlying case. He qualified for pro bono appellate representation by a volunteer

attorney through a program of the Appellate Law Section of the State Bar of Texas. At

the hearing on appellees’ contest, Eggers testified the estimated total cost of the

reporter’s record and the clerk’s record is $8,500. Egger’s pro bono counsel testified

neither he nor his firm agreed to advance or pay Eggers’ costs on appeal. The trial

court sustained the contest and Eggers challenges the order through this separate




       2
        The Van Zandts’ suit against Eggers bore trial court cause number D-1-GN-06-
00169 in the 345th District Court of Travis County. In this court, its appeal carries
appellate case number 07-10-0109-CV.
       3
           11 U.S.C. § 1301, et seq.

                                              2
appeal. For this appeal, we ordered preparation of a record limited to the indigence

proceedings.4 Findings of fact and conclusions of law were not requested or filed.5


                                         Analysis


       Eggers presents one issue through which he argues the trial court abused its

discretion in sustaining appellees’ contest.    In support, he specifically contends his

evidence of entitlement to veterans’ disability benefits was prima facie proof of

indigence which went unrebutted; his affidavit and hearing evidence established

indigence; and his qualification for pro bono representation through the volunteer

attorney program established indigence “as a matter of law.”


       On appeal of an order sustaining a challenge to an affidavit of indigence, we

review the trial court’s ruling under the abuse of discretion standard. White v. Bayless,

40 S.W.3d 574, 576 (Tex.App.--San Antonio 2001, pet. denied). A trial court abuses its

discretion if it acts without reference to any guiding rules or principles; in other words,

we must decide whether the decision of the trial court was arbitrary or unreasonable.

Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).




       4
        An appellate court may on its own initiative apply Rules of Appellate Procedure
34.5(c)(1) and 34.6(d) to obtain preparation by the clerk and court reporter of the
portions of record necessary to review an order denying indigence status. In re Arroyo,
988 S.W.2d 737, 739 (Tex. 1998) (orig. proceeding); Kastner v. Texas Board of Law
Examiners, No. 03-08-00515-CV, 2009 Tex. App. Lexis 6381, at *3 n.5 (Tex.App.--
Austin August 12, 2009, no pet.) (mem. op.) (citing In re Arroyo); Tex. R. App. P. 34.5,
34.6.
       5
         The present appeal and the underlying case were transferred to this court from
the Third Court of Appeals by docket equalization order of the Supreme Court of Texas.
See Tex. Gov’t Code Ann. § 73.001 (West 2005).
                                            3
       “A party who cannot pay the costs in an appellate court may proceed without

advance payment of costs if the party files an affidavit of indigence in compliance with

[Rule of Appellate Procedure 20.1]; the claim of indigence is not contestable, is not

contested, or, if contested, the contest is not sustained by written order; and the party

timely files a notice of appeal.” Tex. R. App. P. 20.1(2). When a contest is filed, it is the

burden of the party filing an affidavit of indigence to prove the affidavit’s allegations.

Tex. R. App. P. 20.1(g). “The test for determining indigence is straightforward: Does the

record as a whole 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?” Higgins v. Randall County Sheriff’s Office, 257

S.W.3d 684, 686 (Tex. 2008) (internal quotation marks omitted, citing Pinchback v.

Hockless, 139 Tex. 536, 539, 164 S.W.2d 19, 20 (Tex. 1942)).


Receipt of Veterans’ Disability Payments


       Eggers testified he is a military veteran and has received veterans’ disability

benefits since 1972.     His initial 10 percent permanent disability rating was later

increased to 50 percent. According to Eggers, he receives disability benefits for anxiety

and a retention disorder. He added that his retention capacity is “almost gone.”


       Rule of Civil Procedure 145, governing affidavits of indigency in the trial courts,

defines a “party who is unable to afford costs” as “a person who is presently receiving a

governmental entitlement based on indigency or any other person who has no ability to

pay costs.” Tex. R. Civ. P. 145. In cases under former Rule 40 of the Rules of Appellate

Procedure, courts also found that indigence was demonstrated by a showing of

                                             4
dependence on public assistance. See Griffin Indus. v. Thirteenth Court of Appeals,

934 S.W.2d 349, 351 (Tex. 1996). “The fact that any individual is dependent upon the

charity of the public afforded through the various welfare programs is, by itself, prima

facie evidence that the person is financially unable to pay the court costs or give

security therefor.” Id. (quoting Goffney v. Lowry, 554 S.W.2d 157, 159-60 (Tex. 1977)).


       Recently, the Supreme Court of Texas has pointed out that the current appellate

procedure rule on indigency in civil cases, Rule 20.1, “does not contain the broad

definition found in Civil Rule 145.” In re C.H.C., 331 S.W.3d 426, 430 n.7 (Tex. 2011).

The court went on to state that the case before it did not require a determination

“whether the standard mentioned in Griffin and present in Civil Rule 145 also applies to

our new Appellate Rule 20.1.” Id.


       A claim for veterans’ disability benefits requires establishment of five elements:

(1) veteran status; (2) existence of a disability; (3) service connection of the disability;

(4) degree of disability; and (5) effective date of the disability. Maggitt v. West, 202 F.3d

1370, 1375 (Fed. Cir. 2000); see 38 U.S.C.A. § 1110 (West 2002) (setting forth the

basic requirements for compensation for a disability resulting from active military service

during a period of war); 38 U.S.C.A. § 1131 (West 2002) (setting forth the basic

requirements for a disability resulting from active military service during other than a

period of war). The veteran must have been “discharged or released under conditions

other than dishonorable.” 38 U.S.C.A. § 1110; 38 U.S.C.A. § 1131.


       For demonstrating indigence based on receipt of public assistance or charity, we

find a material distinction between dependence on a public charity and dependence on

                                             5
disability benefits. Receipt of need-based public assistance means the party asserting

indigence on appeal has met the qualifying standard of a government agency or

program for receipt of need-based benefits. Cf. Tex. R. App. P. 20.1(a)(1) (affidavit of

party meeting rule’s criteria, including screening and rescreening by designated

programs, may not be contested). Civil Rule 145 speaks of “governmental entitlement

based on indigency.” Tex. R. Civ. P. 145. Entitlement to veterans’ disability benefits is

not based on the applicant’s indigency.


       Assuming the standard previously noted in Griffin and Rule of Civil Procedure

145 also applies to Rule of Appellate Procedure 20.1, a question we also need not

address, we conclude Eggers did not make prima facie proof of indigence merely by

proving his receipt of veterans’ disability benefits.


Proof of Indigence by Affidavit and Hearing Evidence


       At the hearing on appellees’ contest, Eggers presented evidence of his financial

condition. His veterans’ disability payment amounts to $770 per month. He also earns

$150 per week straightening displays for an Austin newspaper. For nine weeks during

2009, he did “computer work” for an individual. He was terminated from this position,

however, as he was unable to perform the work. Between the computer work and his

newspaper position, Eggers earned $6,600 in 2009. At the conclusion of the hearing,

Eggers was permitted to address the court. In his narrative, among other things Eggers

explained, “I’m in the music business. We work on spec.” He added that he makes

“record deals” which require three years to complete.



                                              6
        Eggers owns a condominium, free of encumbrance, which he valued at $63,000.

He testified this property was originally purchased with proceeds of a loan made by his

parents and was at times titled to his parents or his sister to prevent him from selling or

encumbrancing the dwelling. Eggers owns a 2003 Toyota Matrix automobile. The

vehicle has been driven 130,000 miles and requires repairs he said would cost in the

“range of two thousand dollars.” He also expressed the opinions his assets6 are “really

not worth anything,” and any attempted sale would require approval of the bankruptcy

court. Eggers testified his monthly income is $1,370.


        Eggers’ affidavit listed monthly expenses totaling some $1325.        Additionally,

Eggers’ monthly plan payment in bankruptcy is $201.88. At the time of the hearing,

Eggers had not been ordered to make regularly scheduled child support payments for

his minor son nor did he voluntarily make such payments.


        Eggers’ bankruptcy schedules were appended to his affidavit of indigence.

There, he itemized his personal property and valued it collectively at $33,556.17. He

listed “accounts receivable” described as “[m]onies owed by TVZ records” as a property

item.       He valued the receivables at $15,269.7      Eggers listed a “50% interest in

copyrights to Townes Van Zandt recordings[,] Townes Van Zandt CD documentary [,

and] Richard Dobson CD--Mankind.” According to the schedule, Eggers does not have

        6
            Apparently, excluding his condominium.
        7
          Also in a bankruptcy schedule, Eggers identified “Jeanene Van Zandt, et al”
(sic) as creditors of a disputed $300,000 claim partially collateralized by monies
($15,269.17) owed him by TVZ Records. According to the judgment in the main case,
the trial court “made no determination concerning any offset or recoupment issues, and
the Parties are free to seek disposition of these issues in [Eggers’] bankruptcy
proceeding.”
                                             7
an appraisal of these assets but values them at $1,000. Eggers listed an interest in

“Donovan/Eggers Music,” with the explanation “no present income,” and an interest in a

book valued at “$200/year for 10 years/$100 year for 20 years.” Eggers values these

two assets at $2,000 apiece although he testified neither is “worth anything” and the

book “had already had its day.”


       There was no evidence Eggers attempted to raise cash from his personal

property for payment of the reporter’s record. While the overarching fact that Eggers is

a Chapter 13 debtor sounds generally synonymous with insolvency, specific facts

demonstrating how his Chapter 13 plan could stymie an effort to generate funds for

payment of the record, either by asset liquidation or obtaining credit, were not presented

to the trial court.   Along with Eggers’ testimony attributing little or no value to his

business assets, the trial court also was faced with his bankruptcy schedules in which

he swore to the values we have noted.


       As appellees point out, Eggers owns a condominium and personal property he

valued in excess of $33,000. Even with his Chapter 13 plan payment, Eggers presents

a positive monthly cash flow and offered no proof why some of his monthly expenses

could not be further reduced. Cf. Morris v. Aguilar, No. 03-08-0078-CV, 2010 Tex. App.

Lexis 5365, at *9-*11 (Tex.App.--Austin July 9, 2010, pet. filed) (questioning why

appellant and her husband could not further reduce expenses, including some related to

husband’s deafness, and holding trial court did not abuse its discretion in denying free

record on appeal even though appellant presented a negative monthly cash flow).




                                            8
       The trial court was the sole judge of the credibility of the witnesses and the

weight assigned their testimony.      In re T.E.G., 222 S.W.3d 677, 679 (Tex.App.--

Eastland 2007, no pet.) (citing City of Keller v. Wilson, 168 S.W.3d 802, 821-28 (Tex.

2005)). There is no abuse of discretion if the trial court bases its decision on conflicting

evidence and, as here, some evidence supports its decision. In re Barber, 982 S.W.2d

364, 366 (Tex. 1998) (orig. proceeding).         And we may not reverse the trial court’s

decision simply because we might have reached a different result. Downer, 701 S.W.2d

at 242. We are unable to see an abuse of discretion in the trial court’s evaluation of the

evidence before it. Tex. R. App. P. 20.1(g); Higgins, 257 S.W.3d at 686.


Participation in Pro Bono Program

       Finally, Eggers asserts because he is represented by pro bono counsel as part of

the State Bar of Texas Appellate Section’s pro bono program he is entitled to a free

record as a matter of law.      Eggers concedes, however, this is not the law.          He

nevertheless asks that we extend the law so that he is accommodated.


       The website of the Appellate Section indicates it sponsors a pro bono pilot

program in the Third Court of Appeals.            See http://www.tex-app.org/probono.php.

According to the Third Court of Appeals’ Pro Bono Pilot Program Pamphlet (09/01/07)

(available at: http://www.tex-app.org/pamphlet), the program’s goal “is to match clients

who are financially unable to obtain legal representation with volunteer lawyers who

agree to serve without expectation of compensation for their service.” A party with

retained counsel in the trial court may qualify for the program if he can no longer afford

an attorney. A “significant factor” in qualifying a program applicant is his ability to pay


                                             9
for legal services although the screening committee considers such other factors as

current program case volume, the number of available volunteer attorneys, and issues

presented by the appeal.      The screening committee applies 175% of the poverty

guidelines published by the United States Department of Health and Human Services

as a benchmark for determining whether an applicant qualifies for free legal services.

Of these facts concerning the pilot program, we take judicial notice on our own initiative.

See Tex. R. Evid. 201(b)(2), (c), (f) (at any stage of proceeding, court in its discretion

and on its own motion can take judicial notice of facts capable of accurate and ready

determination by resort to sources whose accuracy cannot reasonably be questioned).


       Rule of Appellate Procedure 20.1 provides in part:


       If the appellant proceeded in the trial court without advance payment of
       costs pursuant to a certificate under Texas Rule of Civil Procedure 145(c)
       confirming that the appellant was screened for eligibility to receive free
       legal services under income guidelines used by a program funded by
       Interest on Lawyers Trust Accounts or the Texas Access to Justice
       Foundation, an additional certificate may be filed in the appellate court
       confirming that the appellant was rescreened after rendition of the trial
       court's judgment and again found eligible under program guidelines. A
       party’s affidavit of inability accompanied by the certificate may not be
       contested.

Tex. R. App. P. 20.1(a)(1). The record contains no indication Eggers proceeded in the

trial court without advance payment of costs under a Rule of Civil Procedure 145(c)

certificate. There is also no indication the program through which Eggers was matched

with his appellate counsel is an Interest on Lawyers Trust Accounts program or Texas

Access to Justice Foundation program. As is apparent, factors beyond poverty may

favor an applicant’s acceptance by the pilot program. And we are not shown that the

                                            10
income guidelines applied by the pilot program mirror those of the programs Rule

20.1(a)(1) specifies. We conclude it is not possible to bring the pro bono appellate

representation the pilot program is providing Eggers within the ambit of Rule 20.1(a)(1).8


       In that regard, and especially considering that Eggers’ appeal originated in the

Third Court of Appeals, we take note of that court’s opinion in Morris, 2010 Tex. App.

Lexis 5365. While the effect of participation in the Third Court of Appeals’ pro bono pilot

program was not at issue in Morris, the appellant there testified that she and her

husband qualified for the program; yet, the appellate court affirmed the trial court’s order

sustaining the court reporter’s contest of the appellant’s affidavit of indigence. Morris,

2010 Tex. App. Lexis 5365, at *7, *11.

       While we commend counsel’s willingness to provide pro bono legal services for

Eggers, and find the Appellate Section’s pilot pro bono program laudable, we are not

authorized to stretch the bounds of Rule 20.1(a)(1) to include it.


       Finding none of Eggers’ appellate contentions persuasive, we overrule his sole

issue on appeal.




       8
        Rule of Appellate Procedure 2 authorizes us on motion or our own initiative to
suspend a rule’s operation in a particular case and order a different procedure, “to
expedite a decision or for other good cause.” Tex. R. App. P. 2. We will not invoke
Rule 2 here.
                                            11
                                         Conclusion


       Because we find the trial court did not abuse its discretion in sustaining

appellees’ contest of Eggers’ affidavit of indigence and Eggers is not otherwise entitled

to a free record on appeal, we affirm the trial court’s order.




                                                         James T. Campbell
                                                              Justice




                                             12
