                                                                                      ACCEPTED
                                                                                 03-15-00107-CV
                                                                                        4404588
                                                                       THIRD COURT OF APPEALS
                                                                                  AUSTIN, TEXAS
                                                                             3/6/2015 2:57:19 PM
                                                                               JEFFREY D. KYLE
                                                                                          CLERK
                        NO. 03-15-00107-CV
__________________________________________________________________
                                                            FILED IN
                 IN THE THIRD COURT OF APPEALS 3rd COURT OF APPEALS
                                                      AUSTIN, TEXAS
                          AUSTIN, TEXAS
                                                  3/6/2015 2:57:19 PM
__________________________________________________________________
                                                    JEFFREY D. KYLE
                                                             Clerk
                       SUZANNA ECKCHUM
                                                              Appellant,

                                 v.

      THE STATE OF TEXAS FOR THE PROTECTION OF HAL KETCHUM
                                                         Appellee.
__________________________________________________________________

       ON APPEAL FROM THE COUNTY COURT AT LAW NO. 2
                        OF COMAL COUNTY
                      CAUSE NO. C2014-1690C
__________________________________________________________________

  APPELLANT’S MOTION TO CHALLENGE TRIAL COURT ORDER
     SUSTAINING CONTEST TO APPELLANT’S AFFIDAVIT OF
                           INDIGENCY
__________________________________________________________________

                               Mysha Lubke
                               BAKER BOTTS L.L.P.
                               State Bar No. 24083423
                               98 San Jacinto Blvd., Suite 1500
                               Austin, TX 78701
                               (512) 322-2500
                               (512) 322-2501 (fax)
                               mysha.lubke@bakerbotts.com

                                             ATTORNEY FOR APPELLANT




Active 18038052.1                1
TO THE HONORABLE THIRD COURT OF APPEALS:

                    Appellant Suzanna Eckchum1 respectfully requests that this Court

deny Court Reporter Dana Dance’s Contest to the Affidavit of Indigency Filed by

Suzanna Eckchum pursuant to Rule 20.1(j) of the Texas Rules of Appellate

Procedure.          The trial court erred in sustaining the court reporter’s contest to

Appellant’s affidavit of indigence for two reasons. First, Appellant’s completed

and verified affidavit shows that she is unemployed, disabled, and receives public

benefits, which is all sufficient to prove indigence. Second, Appellant had no

notice of the hearing on the contest and thus had no opportunity to offer testimony

about the contents of her affidavit as proof of indigence. For these reasons,

Appellant respectfully requests that this Court grant Appellant’s motion to

challenge, deny the court reporter’s contest, and order court reporter Dana Dance

to prepare the reporter’s record for appeal at no cost to the indigent appellant.

Appellant has requested that the trial court reconsider its order sustaining the

contest.




1
  Respondent respectfully notes that the style of the case in the trial court order listed her name
incorrectly, and the name should be listed as Suzanna Eckchum.

Active 18038052.1                               2
                        BACKGROUND FACTS AND PROCEDURE

                    After a hearing on January 16, 2015, the trial court entered a Stalking

Protective Order against Appellant on January 22, 2015. I CR 18-21. Proceeding

pro se2, Appellant timely filed her first Notice of Appeal on February 12, 2015.3

Id. at 24. On that same date, Appellant filed an “Affidavit of Indigency,” in which

she swore that she receives government entitlements, has been unemployed since

2010, has no property of any value, and cannot pay costs. Id. at 22-23. This is the

affidavit that Court Reporter Dana Dance timely contested on February 23, 2015.

The trial court set and held a hearing on the contest on February 25, 2015 at 1:30

p.m. C.R. Supp. I. Notice for this hearing was sent by counsel for Court Reporter

Dana Dance by certified mail, postmarked February 23, 2015. Id. Delivery of the

notice was not attempted until February 25, 2015 4—after the hearing. Ex. A.




2
  Appellant had trial counsel, but represented herself after trial and before engaging appellate
counsel on February 26, 2015 after qualifying for pro bono appellate representation, without
contingent fee, by a volunteer attorney through the Third Court of Appeals Pro Bono Program.
Counsel has not agreed to pay or advance any costs.
3
   Appellant filed multiple documents entitled “Notice of Appeal,” but each appears to be
different. The Notice of Appeal filed on February 17, 2015 also included a request for a court
transcript. I CR 25. And the Notice of Appeal filed on February 19, 2015 also included a
request for a new trial. Id. at 26.
4
  Appellant received the letter sent via First Class Mail as well as the notice of a Certified
mailing on the evening of February 26, 2015. However, accepting that the U.S. postal service
attempted to deliver at least the certified letter on February 25, 2015, Appellant refers to that date
as the date of receipt.

Active 18038052.1                                 3
                            ARGUMENT AND AUTHORITIES

                    The trial court abused its discretion in granting the contest as the

evidence before the court proved Appellant’s indigence. The trial court also failed

to give Appellant due process in entering an order sustaining Court Reporter Dana

Dance’s Contest to the Affidavit of Indigency filed by Suzanna Eckchum without

notice of the hearing and without permitting Appellant the opportunity to be heard.


I.   The Trial Court Record As A Whole Shows Appellant Is Indigent and
Unable to Pay Costs
                    Even without Appellant’s appearance at the hearing on the contest,

evidence of Appellant’s indigence was properly before the trial court under Rule

20.1. “The purpose of Rule 20.1 is to permit parties to proceed without paying

filing fees if they are unable to do so, and we have long interpreted the Rules of

Appellate Procedure liberally in favor of preserving appellate rights.” Higgins v.

Randall County Sheriff's Office, 257 S.W.3d 684, 688 (Tex. 2008) “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?” Id. at 686. Moreover, “[t]he 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


Active 18038052.1                              4
pay the court costs or give security therefor.” Griffin Indus., Inc. v. Honorable

Thirteenth Court of Appeals, 934 S.W.2d 349, 351 (Tex. 1996) (quoting Goffney v.

Lowry, 554 S.W.2d 157, 159-60 (Tex. 1977). 5


                    Yet the court reporter did not contest the accuracy or contents of the

affidavit showing prima facie evidence of Appellant’s indigence.                        The court

reporter did not contest the indigent Appellant’s dependence on public welfare

programs such as SNAP food benefits listed in her affidavit or that her expenses

exceeded income sourced solely from government benefits. C.R. Supp. I. She

only contested the completeness of Appellant’s affidavit specifically with regards

to her income, personal property, and cash. See id. But an indigent appellant is

not required to attach any documents to the affidavit or address every factor in

Rule 20.1(b) because “[s]atisfaction of the indigence rules should be liberally

construed in favor of the right to appellate review.” Moreno v. Perez, 363 S.W.3d

725, 743 (Tex. App.—Houston [1st Dist.] 2011, no pet.); see also In re C.H.C.,

331 S.W.3d 426, 430 (Tex. 2011) (taking as true the allegations in an affidavit of

indigence although the indigent appellant did not attach any documents to her

affidavit or address every factor in Rule 20.1(b), but did swear that she had a

negative cash flow and no investments or cash to help pay for a record).

5
  The Texas Supreme Court has declined to rule on whether this standard is applicable in
appellate courts under Tex. R. App. P. 20.1 as it is in trial courts under Tex. R. Civ. P. 145. In re
C.H.C., 331 S.W.3d 426, 430 n.7 (Tex. 2011).
Active 18038052.1                                5
                    Moreover, Appellant’s affidavit was complete and indicated that she

would not be able to afford the costs of appeal. As to personal property and cash,

Appellant left blank the lines for financial assets, other property, and real estate

because she has none of these items. Evidence before the trial court showed that

Appellant rents an RV situated on a local ranch. She owns no property, so it

follows that she would have nothing to report for real estate and the like, and those

lines would be blank. Similarly, as to income, Appellant left blank the boxes that

did not apply to her. She has been unemployed since 2010, so it follows that she

would not have anything to provide in the spaces for “wages,” “job title,”

“employer,” “2nd job,” and the like. She provided the amount of income she

receives from government benefits, and her affidavit was complete and complied

with Rule 20.1. To suggest otherwise is to hold that an indigent Appellant must

pay costs of appeal if she fails to mark each available space with a “0” or

strikethrough. Such an elevation of form over substance is something the Texas

Supreme Court has admonished is particularly inappropriate when assessing

indigence. Higgins, 257 S.W.3d at 688–89. Thus, this Court should deny the court

reporter’s contest because the trial court abused its discretion in sustaining the

contest.




Active 18038052.1                             6
II.      The Hearing on Contest was Held with No Notice to Appellant
                    Appellant had no notice of any hearing on the court reporter’s contest

to her affidavit of indigence. After a contest to an affidavit is filed, “the trial court

must set a hearing and notify the parties and the appropriate court reporter of the

setting.” Tex. R. App. 20.1(i)(1) (emphasis added); Kastner v. Texas Bd. of Law

Examiners, 03-10-00355-CV, 2011 WL 3659146, at *1 (Tex. App.—Austin Aug.

18, 2011, no pet.) (“[T]he trial court must provide notice and set a hearing to

determine whether the party is indigent.”).            While it is true that a rebuttable

presumption exists that if notice is properly addressed and mailed, that it was

received by the addressee, In re M.A.H., 98 S.W.3d 745, 748 (Tex. App.—Waco

2003, no pet.), Appellant did not receive notice of this hearing on the contest until

after the contest occurred.


                    The notices sent regarding the contest prove that they were not sent in

time to provide the indigent Appellant with actual notice of the hearing and rebut

any presumption otherwise. Appellant received two mailings from counsel for

Dana Dance both containing identical correspondence: a cover letter dated

February 20, 2015 enclosing (1) the contest, (2) a motion to inspect Appellant’s

home and tax returns going back eight years, and (3) a motion to set with notice of

the setting. C.R. Supp. I; Ex. A. The Notice of Setting was signed by the Civil

District Court Coordinator on February 23, 2015 setting a hearing for two days

Active 18038052.1                               7
later on February 25, 2015. Id. Although the cover letter attaching the contest,

motions, and notice was dated February 20, 2015, it contains the date and time of

the hearing—a setting that was not obtained until February 23, 2015. Thus, the

cover letter, contest, motions, and notice could not have been sent at any time

before February 23, 2015.               This is so despite counsel for Dana Dance’s

certifications on each motion that the motions were served on Appellant on

February 20, 2015. That cannot be so especially considering that the postmarked

date on each envelope received by Appellant was not stamped until the following

Monday, February 23, 2015. Ex. A. Further, the envelope of the certified mailing

shows that the postal service did not attempt delivery until February 25, 2015—the

day that the hearing was set. Id. Thus, Appellant had no notice of a hearing on the

contest.


                    It is well established that procedural due process requires notice and a

hearing. City of Houston v. Fore, 412 S.W.2d 35, 37 (Tex. 1967). Yet, the lack of

notice of a hearing as to this contest in preparation for an appeal has resulted in the

possibility of excluding Appellant from the courts, when “[c]ourts should be open

to all, including those who cannot afford the costs of admission.” In re C.H.C.,

331 S.W.3d at 429. For these reasons, the Court should deny the contest to the

affidavit of indigence and order Court Reporter Dana Dance to prepare the

reporter’s record.         Appellant has provided additional evidence to support her

Active 18038052.1                               8
“Affidavit of Indigency” which she was not permitted to provide to the trial court

in the attached affidavit and exhibits.


                                       CONCLUSION

                    For the above reasons, Appellant respectfully requests to be allowed

to proceed with her appeal without payment of costs, including requiring that the

court reporter prepare the appellate record without payment.




                                            Respectfully submitted,

                                            By: _/s/ Mysha Lubke
                                               Mysha Lubke
                                               State Bar No. 24083423
                                               mysha.lubke@bakerbotts.com
                                               BAKER BOTTS L.L.P.
                                               98 San Jacinto Blvd., Suite 1500
                                               Austin, TX 78701
                                               Telephone: (512) 322-2500
                                               Facsimile: (512) 322-2501

                                                   ATTORNEY FOR APPELLANT
                                                   SUZANNA ECKCHUM




Active 18038052.1                              9
                        CERTIFICATE OF CONFERENCE

      I hereby certify that counsel for Appellant Suzanna Eckchum conferred with
Josh Presley, Counsel for the State of Texas for the Protection of Hal Ketchum on
March 5, 2015 and determined that the State of Texas opposes this motion at this
time.


                                       / s / Mysha Lubke
                                       Mysha Lubke


                          CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the foregoing has been served
by fax on this 5th day of March, 2015:

         Counsel for the State of Texas for the Protection of Hal Ketchum:
         The Honorable Jennifer A. Tharp
         Comal County Criminal District Attorney
         150 North Seguin, Suite 370
         New Braunfels, Texas 78130
         fax: 830-608-2008

         Counsel for Court Reporter Dana Dance:

         James S. Bettersworth
         The Bettersworth Law Firm
         110 W. Faust Street
         New Braunfels, Texas 78130
         fax: 830-626-1414

                                       / s / Mysha Lubke
                                       Mysha Lubke




Active 18038052.1                        10
                                         NO. 03-15-00107-CV


                              IN THE THIRD COURT OF APPEALS
                                       AUSTIN, TEXAS


                                        SUZANNA ECKCHUM
                                                                                              Appellant,

                                                      v.

            THE STATE OF TEXAS FOR THE PROTECTION OF HAL KETCHUM
                                                                                               Appellee.


                     ON APPEAL FROM THE COUNTY COURT AT LA WNO. 2
                                   OF COMAL COUNTY
                                 CAUSE NO. C2014-1690C


        STATE OF TEXAS                                 §
                                                       §
        COUNTY OF TRAVIS                               §

     1. My name is Suzanna Eckchum, and I am the Appellant in this case. I am over 18 years of age, of
        sound mind, and capable of making this affidavit. The facts stated in this affidavit are within my
        personal knowledge and are true and correct.

     2. I received first-class mail addressed from the Bettersworth Law Firm on February 26, 2015. On
        that same date, I received a notice of a certified mailing being held at the post office for pick-up.
        Exhibit A to this affidavit is a true and correct copy of the envelopes I received on that date.

     3. My only source of income is government assistance. I receive Social Security benefits due to a
        disability. I also receive SNAP benefits to cover the costs of food monthly. Exhibit B is
        documentation from the Texas Health and Human Services Commission regarding my Medicare,
        SNAP Food Benefits, and Social Security benefits. Exhibit C is my 2014 Form SSA-1099
        Social Security Benefit Statement.

     4. I receive these government benefits via a debit card provided by the government which also
        allows me to charge expenses on the same card.

     5. Because my income is provided on a debit card not tied to a bank account, I do not use any bank
        accounts. I keep a bank account open, but have no funds on deposit.

Active 18060973. I
     6. In addition to government assistance for income, I rely on government assistance for healthcare
        expenses. I receive both Medicare and Medicaid. Exhibit D to this affidavit is a true and correct
        copy of my Medicaid card.

     7. I am receiving pro bono legal assistance with my appeal and my appellate attorney has not
        agreed to advance costs of appeal. There is no contingent fee.

     8. I am unemployed, but have pursued work as a photojournalist for decades. I am also a radio host
        at a non-profit radio station which is an unpaid position. I am a singer-songwriter, but due to my
        disability-multiple sclerosis-I have not been able to earn any money from my music since
        before 2010.

     9. I own a 1993 Honda Accord LX that I purchased in 2008 for $1,5 00. It is in poor condition, and
        I cannot afford to repair it. Because it is my only source of transportation to doctors
        appointments and in seeking employment, I cannot sell it. There is very limited and umeliable
        public transportation in Wimberley, Texas that cannot transport me to my doctor's appointments
        in Northwest Austin, Texas.

     I 0. I own no other property of any value and live in a rented motor home.

     11. I owe tens of thousands of dollars of debf and cannot obtain a loan for court costs.

     12. Because I am unemployed, rely on government assistance, am indebted, poor, and struggling, I
         cannot afford the costs of appeal, including the cost of a court reporter's record.

        I verify that the statements made in this affidavit are true and correct.



                                                 ~~
                                                  fiant
                                                 -A
                                                        ccic:A~
        BEFORE me, Melissa V. De Pagter, Notary Public, on this day personally appeared Suzanna
        Eckchum, known to me through personal knowledge to be the person whose name is subscribed to the
        foregoing instrument .

   SUBSCRIBED AND SWORN TO BEFORE ME, on March 6, 2015.



                                                           NOTARY PUBLIC, STATE OF TEXAS

                                                              Me1, ~.sl\ v· w f~.f.-4,,
                                                           Printed Name

My commission Expires:         t)/ ~ </ }o(l
Active 18060973. I                                        2
EXHIBIT A
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                                                    Suzanna [.ckchum
                                                    PO Box 476
                                                    'Nirr~berley TX 78676-0476




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EXHIBIT B
                                                                                                           Form TF0001
                                                                                                            August2014

         HHSC - MIDLAND
         PO BOX 14900
         MIDLAND TX 79711-4900
                                                                   M\TEXAS
                                                                   k...,.. .• · Health and Human
                                                                   -..,(       Services Commi:>sion


          Date:   02/11/2015                                       Need help?
   Case Number:
                                                                             Call 2-1-1 or 1-877-541-7905
                                                                   If you have a hearing or speech disability,
                                                                   call 7-1-1 or any relay service.
                                                                           All numbers are free to call.




                                                                   SUZANNE ECKCHUM
                                                                   PO BOX476
                                                                   WIMBERLEY TX 78676-0476




Notice about your case:
Medicare Savin
                              Who is in a Medicare Savings Program
                     Name                                    EOG Number and Benefit                        Date
                                                                                                      12/01 /2014 -
Suzanne Eckchum                                                      C-QMB
                                                                                                        Ongoing



Factswe have a b OU t vour case:
                             Money coming into your home (income)
                                                                                                         Monthly amount
                                                                                 Where the money          before taxes
         Month              Person who gets the money      Type of money           comes from               (gross)

      March 2015            Suzanne Eckchum             Unearned Income        RSDI                        $ 766.00


SNAP F.ood Benefits
EOG number: 604200638

                                   Who gets SNAP Food Benefits
                     Name                                             Date                            Monthly Amount

Suzanne Eckchum                                             03/01 /2015 - 02/29/2016                    $ 194.00

                                                                                                                       2221
                                                    Page 1 of 3
                                                                                           Form TF0001
                                                                                            August2014


Fact swe have a bOU t vour case:
                     Money coming into your home (income)
                                                                                         Monthly amount
                                                                      Where the money     before taxes
       Month        Person who gets the money      Type of money        comes from          (gross)

     March 2015     Suzanne Eckchum              Unearned Income     RSDI                  $ 766.00


                    Costs that lower your income (deductions)
       Month                      Type of cost                       Cost               Deduction

     March 2015     Shelter                                        $ 938.00             $ 632.50




                                            Page 2 of 3                                             2222
EXHIBIT C
                                                                                                                      1993-261-00
                                                  LIFTTO OPEN                                               CU1263424-11A61263800 ,




                                                           '
                                       2014"- ShoWs the fut.al am.omit


            FORM SSA-1099 - SOCIAL SECURITY BENEFIT STATEMENT
                                                                                       1\Il10UilL ill DOX '±.




 201 4 •             PART OF YOUR SOCIAL SECURITY BENEFITS SHOWN IN BOX 5 MAY BE TAXABLE INCOME.
                    •SEE THE REVERSE FOR MORE INFORMATION.
~B-o_x_1_.N_a_m_e~~~~~~~~~~~~~~~~~~~~~~~----.-B-
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  SUZANNE ECKCHUM                                                                                                                     .
                                                                                                                                      ~

1--~~~~~~~~~~~~~....--~~~~~~~~~~~~---l,....----------------.-------------- ~
Box 3. Benefits Paid in 2014          Box 4. Benefits Repaid to SSA in 2014                                                           ii:
                $9,!f'47.60                           NONE                                                                            ~
                                                                                                                                      "'
              DESCRIPTION OF AMOUNT IN BOX 3                              DESCRIPTION OF AMOUNT IN BOX 4
  Paid by check or direct deposit              $9,572.10                                   NONE
  Medicare Part B premiums deducted
    from your benefits                           $419.60
  Total Additions                              $9,991.70
  Subtract
    Non-taxable payments                        $944.10
  Benefits for 2014                            $9,047.60



                                                             Box 6. Voluntary Federal Income Tax Withheld

                                                                                          NONE

                                                             Box 7. Address

                                                               SUZANNE ECKCHUM
                                                               POBOX476
                                                               WIMBERLEY TX 78676-0476

                                                                                                                                      n
                                                                                                                                      c:

                                                           1--~~~~~~~~~~~~~~~~~~~~~
                                                                                   S1
                                                             Box 8. Claim Number   (Use this number if you need to contact SSA.)      t
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EXHIBIT D
    ~Your Te.ma Benefits
    ..r        Health and Human Sesvica Commbsion
                                                    QM8

             M11dicaid ID Card
    M•mb..-Name:
    SUZANNA ECKCHUM
'   Mo<n1>or10 1 n1d .101:


    . _ I0<(8GUOJ                Olllo =<I sont:
    610258                           11123/12
    RllalN: 610084
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    RxGRP:   MEDICAID
