Reversed and Rendered and Opinion and Concurring Opinion filed July 10, 2012.




                                         In The

                      Fourteenth Court of Appeals
                                     ____________

                                 NO. 14-11-01022-CV
                                   ____________

               HUMBERTO MONTALVO, INDIVIDUALLY AND
             D/B/A MONTALVO PRODUCE OF MEXICO, Appellant

                                           V.

                    JP MORGAN CHASE BANK, N.A., Appellee



                       On Appeal from the 113th District Court
                               Harris County, Texas
                         Trial Court Cause No. 2010-23102


                         CONCURRING OPINION

      I respectfully concur with the majority opinion but write separately to express my
concern with the fact that the hearing in this case was set by submission. A number of
years ago, trial courts began to hold “hearings by submission.” In such a “hearing,” the
trial court rules solely on the parties’ written submissions and does not hear evidence or
arguments of the parties. These submission hearings are useful to both the trial court and
the parties, allowing the court to rule on issues without the added time and expense of an
oral hearing in court.

       Some parties have contested the use of a submission docket, arguing that a hearing
by submission does not meet the requirements of the Texas Rules of Civil Procedure.
The Texas Supreme Court has routinely rejected the argument that the word “hearing” in
the rules of civil procedure necessarily means an “oral hearing.” See, e.g., Martin v.
Martin, Martin & Richards, Inc., 989 S.W. 2d 357, 359 (Tex. 1998) (oral hearing not
required on motion for summary judgment); Cire v. Cummings, 134 S.W.3d 835, 843–44
(Tex. 2004) (oral hearing not required on motion to compel and for sanctions). However,
an oral hearing may be required when the express language of the rule or the context of
the rule would require an oral hearing. See Gulf Coast Inv. Corp. v. Nasa 1 Bus. Ctr.,
754 S.W. 2d 152 (Tex. 1988) (oral hearing required on motion to reinstate when language
of rule required court to notify all parties of the date, time and place of hearing).

       Rule 20.1 of the Texas Rules of Appellate Procedure does not expressly require an
oral hearing. See TEX. R. APP. P. 20.1. However, I believe that a careful reading of the
rule’s language and context suggests that one may be required. First, Rule 20.1(g)(1)
specifically provides that, if an indigent person is incarcerated at the time of the hearing
on the contest, the affidavit must be considered as evidence and is sufficient to meet the
indigent’s burden to present evidence “without the indigent party’s attending the
hearing.” See TEX. R. APP. P. 20.1(g)(1). This would imply that the hearing on a contest
is one that would have required attendance—i.e., an oral hearing. Second, Rule 20.1(h)
provides additional context supporting this interpretation, even though it does not directly
address trial courts.    Under Rule 20.1(h), appellate courts may conduct a hearing or
decide the contest based on the affidavit and any other timely filed documents. See TEX.
R. APP. P. 20.1(h)(1)–(2). This implies that conducting a “hearing” in the context of Rule
20.1 is an oral hearing because it is different from deciding the contest solely on the
affidavits and other documents, which is what happens in a submission hearing. Section
20.1(h) also allows an appellate court to refer the matter to the trial court “to hear

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evidence,” which could only occur at an oral hearing. See TEX. R. APP. P. 20.1 (h)(4).
Finally, this interpretation is supported by the language of Rule 20.1(i), which is entitled
“Hearing and Decision in the Trial Court.” This section requires the trial court to set a
hearing and notify the parties and the court reporter of the hearing if a contest was filed
or if the appellate court refers a contest to the trial court for a hearing. The purpose of the
appellate court referral discussed in this rule is for the trial court to “hear evidence.” See
TEX. R. APP. P. 20.1(h)(4). This provision further supports my conclusion that the
hearing on a contest in the trial court should be an oral hearing at which a party presents
evidence.

       Even if the rule did not require an oral hearing, I would have concerns about the
submission process. It is true that the notice of submission in this case stated that a party
could request an oral hearing, but at what point would a party have to make that request?
And, given the tight time requirements in this rule, the oral hearing would have to take
place the same day that the hearing was set on the submission docket. This might be
unworkable. Also, under section 20.1(g)(1), once a contest is filed, a party must “prove
the affidavit’s allegations.” TEX. R. APP. P. 20.1(g)(1). Normally, this takes place at an
oral hearing by testimony of the party. The party’s oral testimony of indigence, under
cross examination, is sufficient. The indigent person does not have to bring any records
with him, although it may be useful to do so. If the matter was on submission, what
would replace the indigent’s own testimony? Would the indigent party have to submit
another affidavit to prove the affidavit already on file? According to the findings of fact,
the trial judge in this case did review the original affidavit of the party when he sustained
the contest, and appears to have considered it for the truth of the matters asserted.1 But

1
  It appears from the trial court’s findings of fact that the trial court’s ruling was based on the
affidavit. The trial court found that “defendant has exempt unencumbered assets that defendant
has not attempted to collateralize to pay for the costs of the appeal” and that “defendant failed to
state what costs he could pay on appeal.” There is no evidence to support either of those
findings. Defendant testified that he had tried to sell the two exempt pieces of property but
received no offers on them, and said that he was told that he cannot sell or get a loan on his
properties because of pending tax liens, environmental penalties and an IRS lien. Further, he
plainly stated in his affidavit, “I am unable to pay the costs of appeal.”
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he also faulted the party’s affidavit as defective, when this defect could have been cured
at an oral hearing. See In re M.G.D., 108 S.W.3d 508, 516 (Tex. App.—Houston [14th
Dist.] 2003, pet. denied) (“Trial courts generally may allow a defective affidavit of
indigency to be . . . supplemented with testimony at the hearing.”) (citing In re J.W., 52
S.W.3d 730, 732 (Tex. 2001)); Weeks v. Hobson, 877 S.W.2d 478, 480 (Tex. App.—
Houston [1st Dist.] 1994, orig. proceeding) (implying that affidavit of indigence could
have been amended by testimony at evidentiary hearing).

       I concur in the majority as to the disposition of this case, but urge trial courts to be
mindful of the potential pitfalls of setting these motions on their submission dockets.




                                    /s/    Tracy Christopher
                                           Justice



Panel consists of Justices Boyce, Christopher, and Jamison. (Jamison, J., majority).




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