Motion Denied; Order filed December 8, 2016.




                                       In The

                     Fourteenth Court of Appeals
                                    ____________

                               NO. 14-16-00619-CV
                                    ____________

DORA LINDA RODRIGUEZ AND FRANCISCO RODRIGUEZ, Appellants

                                          V.

                      OVATION SERVICE, LLC, Appellee


                    On Appeal from the 333rd District Court
                             Harris County, Texas
                       Trial Court Cause No. 2014-41901

                                      ORDER

      Appellants were not permitted to proceed without payment of costs in the trial
court. On September 23, 2016, appellants Dora Linda Rodriguez and Francisco
Rodriguez filed in this court a motion to show material change in financial
circumstances. See Tex. R. App. P. 20.1(b)(3). According to appellants’ motion, on
October 16, 2014, the trial court sustained the district clerk’s contest to appellants’
pauper’s oaths. Texas Rule of Appellate Procedure 20.1(b)(3)(B) provides that this
court may decide such a motion based on the record or refer the motion to the trial
court with instructions to hear evidence and issue findings of fact.

       On October 13, 2016, this court referred appellants’ motion to the trial court.
On November 10, 2016, the trial court held a hearing at which all parties appeared.
Appellants Francisco and Dora Linda Rodriguez testified at the hearing. Francisco
testified that their financial circumstances had changed dramatically since the trial
court’s initial ruling in 2014. He testified that their previous lawyer drained their
finances by charging them $3,000, but not performing to the Rodriguezes’
satisfaction. At the time of the hearing Francisco had been unemployed for
approximately one month. His electricity and gas had been turned off, and his car
had been repossessed. He has paid property taxes on the property that is the subject
of the litigation.

       Francisco submitted an affidavit to the court, which was deficient in that it
failed to (1) state the costs he had to pay for the appeal; (2) list real or personal
property; (3) list dependents or debts owed; or (4) list the nature and amount of
monthly expenses. Francisco testified that his wife attempted to obtain loans to pay
the court costs, but was denied. He had no records of the attempts to obtain loans.

       Dora Linda Rodriguez, Francisco’s wife, testified that at the time of the
hearing the Rodriguezes were one month behind in rent. Dora Linda testified that
their previous lawyer moved to Kuwait before completing work for them. Dora
Linda testified that they still owned property that was the subject of the suit. They
were paying property taxes and no financial institution or taxing authority had begun
foreclosure proceedings. Dora Linda takes home approximately $2,000 in monthly
income, and has a car.

       No evidence was presented as to the cost of the clerk’s record or reporter’s
record.
      On November 11, 2016, the trial court signed findings of fact and conclusions
of law in which the court found:

      Findings of Fact

      1. On September 23, 2016, Plaintiffs/Appellants filed a Motion at the
      Fourteenth Court of Appeals to show material change in financial
      circumstances.
      2, On October 18, 2016, Plaintiffs/Appellants filed a Motion to
      Determine Inability to Pay Costs (titled by Plaintiffs/Appellants as
      “Motion to Determine Indigency Upon Hearing, For Purposes of
      Appeal.”).
      3. On October 19, 2016, Court Reporter, Jodi Masera, filed a Contest
      of Affidavit of indigence under Texas Rule of Appellate Procedure
      20.1.
      4. Plaintiff/Appellant, Francisco Rodriguez, filed an Affidavit of
      Indigency with the Court on September 7, 2016.
      5. On November 10, 2016 an evidentiary hearing was held to determine
      Plaintiffs/Appellants ability to afford costs.
      6. Plaintiff/Appellant, Francisco Rodriguez, testified that there was a
      change in the affidavit, in particular that his net income after taxes
      decreased, but that his wife’s income increased by more than the
      decrease.
      7. Plaintiff/Appellant, Dora Rodriguez, did not file an Affidavit of
      Indigency itemizing the information required by Texas Rule of
      Appellate Procedure 20.1(b).
      8. Plaintiff/Appellant, Dora Rodriguez, filed an Affidavit certain facts
      about her financial condition, but did not describe the items set forth in
      Texas Rule of Appellate Procedure 20.1(b).
      9, Plaintiffs/Appellants did not provide evidence regarding the amount
      of court costs.
      10. Plaintiffs/Appellants did not provide evidence of their inability to
      afford court costs.

      Conclusions of Law

      1. Plaintiffs/Appellants bore the burden to prove inability to afford
      costs.
      2. Proper notice of the oral evidentiary hearing required under Texas
      Rule of Civil Procedure 145(f)(5) was given.
      3. The Court finds that despite being given proper notice of the oral
      evidentiary hearing, the Plaintiffs/Appellants failed to provide
      sufficient evidence of costs. Based on the burden and the lack of
      evidence presented to carry their burden, this Court finds that
      Plaintiffs/Appellants can afford to pay the costs of Court,
      4. The Court finds that despite being given proper notice of the oral
      evidentiary hearing, Plaintiffs/Appellants failed to provide sufficient
      evidence of their inability to afford costs. Based on the burden and the
      lack of evidence presented to carry their burden, this Court finds that
      Plaintiffs/Appellants can afford to pay the costs of Court.
      5. The Court finds that despite being given proper notice of the oral
      evidentiary hearing, Plaintiffs/Appellants failed to comply with the
      requirements of Texas Rule of Appellate Procedure 20.1(b). Based on
      the burden and the lack of evidence presented to carry their burden, this
      Court finds that Plaintiffs/Appellants can afford to pay the costs of
      Court
      6. The Court finds that despite being given proper notice of the oral
      evidentiary hearing, Plaintiffs/Appellants failed to provide sufficient
      evidence to illustrate a change in financial circumstances to show
      inability to afford costs. Based on the burden and the lack of evidence
      presented to carry their burden, this Court finds that
      Plaintiffs/Appellants can afford to pay the costs of Court[.]
      7. The Court finds that, the Plaintiffs/Appellants’ Net Combined
      Income increased from the Plaintiff/Appellant Francisco Rodriguez
      filed his Affidavit of Indigency.
      8. The Court finds that, based on the evidence provided by
      Plaintiffs/Appellants, they have not had a change in financial
      circumstances and can therefore afford costs.

      Having reviewed the record, we conclude it contains sufficient evidence to
support the trial court’s findings that appellants’ financial circumstances have not
materially changed. Accordingly, we deny appellants’ motion to proceed without
payment of costs.
      Appellants are directed to pay the filing fee in this appeal, and to pay or make
arrangements to pay for the clerk’s record and the reporter’s record. Unless
appellants pay the filing fee, and provide this court with proof of payment for the
record within fifteen days of the date of this order, we will dismiss the appeal for
want of prosecution. See Tex. R. App. P. 37.3(b).

                                       PER CURIAM

Panel consists of Chief Justice Frost and Justices McCally and Brown.
