Opinion filed February 16, 2012




                                             In The


   Eleventh Court of Appeals
                                          __________

                                     No. 11-11-00183-CV
                                         __________

                         PAUL J. DELLA ROCCO, Appellant

                                                V.

                               JOSEPH OEI, MD, Appellee


                       On Appeal from the County Court at Law No. 2

                                     Midland County, Texas

                                  Trial Court Cause No. CC15143


                            MEMORANDUM OPINION

       This is an appeal from an order of the trial court determining that Paul J. Della Rocco is
not entitled to proceed in forma pauperis. Originally, Della Rocco filed an appeal from the trial
court‟s dismissal of his health care liability suit, our Cause No. 11-11-00063-CV. Upon being
notified that the filing fees and the record were due, appellant filed in this court an affidavit of
indigence. The court reporter, the district clerk, and Joseph Oei, MD each filed a contest.
Pursuant to TEX. R. APP. P. 20.1, we referred the matter to the trial court. After a hearing, the
trial court entered an order denying Della Rocco‟s indigent status. Della Rocco filed a notice of
appeal from that order.
         The record shows that the trial court timely conducted a hearing on June 27, 2011, and
entered an order effectively sustaining the contests under Rule 20.1(i). Della Rocco had the
burden at that hearing to prove his indigence.1 Rule 20.1(g). The burden in the trial court has
been stated as follows, “[T]he test for indigency is whether a preponderance of the evidence
shows the party would be unable to pay costs, „if (s)he really wanted to and made a good faith
effort do so.‟” Arevalo v. Millan, 983 S.W.2d 803, 804 (Tex. App.—Houston [1st Dist.] 1998,
no pet.) (citing Allred v. Lowry, 597 S.W.2d 353, 355 (Tex. 1980)). On appeal, the standard of
review is abuse of discretion. Rodgers v. Mitchell, 83 S.W.3d 815 (Tex. App.—Texarkana 2002,
no pet.); White v. Bayless, 40 S.W.3d 574 (Tex. App.—San Antonio 2001, pet. denied); Arevalo,
983 S.W.2d at 804.
         The record from the hearing shows that appellant failed to appear after being duly
notified by certified mail. The trial court noted that the return of service was in the court‟s file,
indicating that Della Rocco received notice of the hearing. Della Rocco, therefore, failed to meet
his burden of proof at the hearing. After reviewing the record from the June 27, 2011 hearing on
indigence, we cannot hold that the trial court abused its discretion in sustaining the contests.
         The order of the trial court is affirmed.


                                                                          PER CURIAM


February 16, 2012
Panel consists of: Wright, C.J.,
McCall, J., and Kalenak, J.




         1
           We note that Della Rocco was not incarcerated and that, therefore, he was not excused from his burden of proof
pursuant to Rule 20.1(g).

                                                           2
