AFFIRMED and Opinion Filed November 7, 2014




                                         S    In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-14-01330-CV

                  IN THE INTEREST OF J.A.H AND J.A.H, CHILDREN

                      On Appeal from the 254th Judicial District Court
                                   Dallas County, Texas
                            Trial Court Cause No. 05-13133-R

                             MEMORANDUM OPINION
                Before Chief Justice Wright and Justices Lang-Miers and Brown
                               Opinion by Chief Justice Wright
       Before the Court is the motion of appellant requesting appellate review of the trial court’s

order sustaining the contests to her affidavit of indigence. The trial court held a hearing on the

contests and signed an order sustaining the contests on October 23, 2014.

       In reviewing a trial court’s order sustaining a contest to an affidavit of indigence, our task

is to determine whether the court abused its discretion. See Jackson v. Tex. Bd. of Pardons &

Paroles, 178 S.W.3d 272, 275 (Tex. App.—Houston [1st Dist.] 2005, no pet.). The trial court

abuses its discretion when it acts without reference to any guiding rules or principles; the facts

and law permit only one decision, which is the opposite of the trial court’s decision; and the trial

court’s ruling is so arbitrary and unreasonable as to be clearly wrong. See Arevalo v. Millan, 983

S.W.2d 803, 804 (Tex. App.—Houston [1st Dist.] 1998, no pet.) (en banc). As the fact-finder,

the trial court is the sole judge of the credibility of the witnesses and evidence. See Prince v.

American Bank of Texas, 359 S.W.3d 380, 382 (Tex. App.—Dallas 2012, no pet.).
       The test for indigence is whether the appellant shows by a preponderance of the evidence

that he would be unable to pay the costs of appeal if he “really wanted to and made a good faith

effort [to] do so.” Arevalo, 983 S.W.2d at 804 (quoting Allred v. Lowry, 597 S.W.2d 353, 355

(Tex. 1980)). A trial court can consider a number of factors when determining the validity of a

challenge to an affidavit of indigence. Some of these factors include whether the litigant is

dependent upon public charity afforded through various welfare programs, Goffney v. Lowry,

554 S.W.2d 157, 159-60 (Tex. 1977); the litigant’s credit rating, Pinchback v. Hockless, 139

Tex. 536, 164 S.W.2d 19 (1942); the litigant’s employment history, Goffney 554 S.W.2d at 160;

and that the litigant cannot secure a bona fide loan to pay the costs, Pinchback, 164 S.W.2d at

20.

       In her motion to review the trial court’s order, appellant contends the contests were not

timely filed. Alternatively, she argues she proved her indigence through both her affidavit and

testimony at the hearing on the contests. Citing to rule of appellate procedure 20.1(e)(2),

appellant contends any contest to her affidavit had to be filed within three days. See TEX. R.

APP. P. 20.1(e)(2). This rule applies only when a presumption of indigence has been established

by the trial court in a suit filed by a governmental entity in which termination of the parent-child

relationship or managing conservatorship is requested. See TEX. R. APP. P. 20.1(a)(3) & (e)(2).

A contest to an affidavit of indigence where there is no presumption of indigence is due within

ten days after the date the affidavit is filed. See TEX. R. APP. P. 20.1(e)(1).

       The presumption of indigence is not applicable to this case. Thus, the contests were due

within ten days after the date appellant filed her affidavit. Appellant filed her affidavit on

October 13, 2014. Court Reporter Tanner Joy Feast filed her contest on October 17, 2014.

Court Reporter Kendra LaKissha Thibodeaux filed her contest on October 21, 2014. Because




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both contests were filed within ten days of October 13, 2014, they were timely. See TEX. R. APP.

P. 20.1(e)(1).

        We turn now to appellant’s alternative argument that she established her indigence. In

her affidavit, appellant states that her only income is approximately $800 a month that she gets

from selling items on eBay that she buys at garage sales. Appellant rents a three bedroom house

for $1,200 a month. She has a checking account with a balance of $200 and owns a 2002 Buick

LeSabre. Her monthly expenses are approximately $1,890. Her debts exceed $39,000.

       At the hearing on the contests, appellant testified that she has retained counsel on appeal.

She testified that she is thirty-nine years old and lives alone. She said her lease does not allow

her to have a roommate. She testified that her boyfriend has paid her rent for the past five

months. With her boyfriend paying the rent, appellant has approximately $110 left after paying

her monthly expenses.

       Appellant testified that she was last employed about ten years ago as a teacher but that

she did not have a teaching certificate. She said she is working on finding employment and had

applied for two jobs within the last three months. Appellant testified that neither her parents nor

her boyfriend are willing to loan her money for the costs of the appeal. She had not tried to get a

loan from a bank or a title loan for her car. Appellant testified that she did not have a gym

membership. However, when posts from her Facebook page were admitted into evidence, she

admitted that she did have a gym membership for which she paid five dollars a month. Her

Facebook page showed a picture of her holding a spinning instructor certificate. Appellant

testified, however, that she had not yet fulfilled all of the requirements. She did not testify that

she was in the process of completing the remaining requirements. At one point in the hearing,

the trial judge commented “I am not convinced [appellant’s] giving us credible, honest

testimony.”

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        As the fact-finder, the trial judge was the sole judge of the credibility of appellant’s

testimony. He questioned her credibility. There is no indication in the testimony that appellant

cannot be employed on a full-time basis. Her own testimony, however, showed that she has

made very little effort to obtain full-time employment. By her own testimony, appellant has

approximately $110 left over after paying her monthly expenses. For these reasons, we conclude

the record does not show a good faith effort on appellant’s part to pay the appellate costs. We

affirm the trial court’s order.




141330F.P05                                         /Carolyn Wright/
                                                    CAROLYN WRIGHT
                                                    CHIEF JUSTICE




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