Order issued November 21, 2017




                                       In The

                               Court of Appeals
                                      For The

                           First District of Texas
                             ————————————
                               NO. 01-17-00593-CV
                            ———————————
                       CHRISTINE E. REULE, Appellant

                                         V.
SHERWOOD VALLEY 1 COUNSEL OF HOMEOWNERS, INC., GEORGE
 HENRY RAMSEY, III, TERRY A. FRAZEE, AND DANIEL GOLDBERG,
                          Appellees


                     On Appeal from the 80th District Court
                             Harris County, Texas
                       Trial Court Case No. 2016-37895


                           MEMORANDUM ORDER
      Appellant, Christine E. Reule, timely filed a pro se notice of appeal on July

25, 2017, from the trial court’s final judgment, signed on April 27, 2017, in this

quiet title case, after filing a motion for new trial. See TEX. R. APP. P. 26.1(a)(1).
With her notice of appeal, Reule also filed a Declaration of Indigence on July 25,

2017, in the trial court. Then Reule filed a premature “Notice of Appeal of the

Trial Court’s Reversal of Her Indigency Status” in this Court on August 9, 2017.

We construe Reule’s notice of appeal as a motion to review the trial court’s order

sustaining its own challenge to Reule’s declaration of indigence, under Texas Rule

of Civil Procedure 145(f)(4) and (g)(1), grant it, and reverse the order.

                                    Background
      Reule claimed that, although defendant Daniel Goldberg had not filed a

motion to contest her indigency in the trial court, he still had sent a notice of

hearing challenging her pauper’s oath on August 1, 2017, setting it for an August

4, 2017 hearing. At the end of that indigency hearing, Reule claimed that the trial

court orally overruled her objections, including that she had not received the

required ten days’ notice to prepare for the hearing, and declared her not indigent

for appellate costs purposes. After the Clerk of this Court requested an indigent

clerk’s record, it was filed on September 11, 2017, including the trial court’s order,

signed on August 24, 2017, denying Reule’s declaration of indigence.

      On August 24, 2017, the original clerk’s record was filed in this Court.

Then on September 25, 2017, the reporter’s record of the August 4, 2017 pauper’s

oath challenge hearing was filed.      At the August 4, 2017 hearing, defendant

Goldberg’s counsel confirmed that she did not file a contest, but that she had been


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informed by the trial court to file the notice of hearing for the court to hear Reule’s

declaration of indigence.

      We construe Reule’s premature August 9, 2017 notice of appeal as a motion

to review the trial court’s August 24, 2017 order denying her indigence claim, and

deem it timely filed on August 24, 2017. See TEX. R. CIV. P. 145(g)(1), (2); TEX.

R. APP. P. 27.2. Because the trial court’s order contained no findings of fact, this

Court abated this appeal on October 3, 2017, and requested the preparation of

detailed findings as required by Rule 145(f)(6). A supplemental clerk’s record was

filed on October 26, 2017, containing the following trial court’s findings of fact:

      1.     Reule filed the Lawsuit on June 6, 2016.

      2.     All Defendants were served and appeared before this Court.

      3.     On March 13, 2017, the Lawsuit was called to trial.

      4.     Reule and Defendants appeared and answered ready for trial.

      5.     Prior to a jury being impaneled, Reule and [Daniel J.] Goldberg
             entered into an Agreed Judgment, dated March 13, 2017.

      6.     The Agreed Judgment between Reule and Goldberg, dated March 13,
             2017, disposed of all of Reule’s claims against Goldberg.

      7.     Goldberg nonsuited his counterclaims for sanctions against Reule.

      8.     Reule proceeded to trial with her claims against the [Sherwood Valley
             1 Counsel of Co-Owners, Inc., George Henry Ramsey III, and Terry
             A. Frazee] Association Defendants.



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      9.     Prior to the Lawsuit being submitted to the jury, Reule and the
             Association Defendants reached Settlement.

      10.    The terms of Settlement were stated on the record.

      11.    Reule and the Association Defendants entered into an Agreed Final
             Judgment, dated April 27, 2017.

      12.    The Agreed Final Judgment, dated April 27, 2017, provides that Reule
             will receive a [$11,400.00] Settlement Check for final resolution of all
             claims against the Association Defendants.

      13.    On August 4, 2017, after being duly sworn, Reule testified that she
             cashed the Settlement Check following receipt.

      14.    Based on her declaration, Reule lives rent-free with a friend and has
             no housing expenses. Reule also receives an amount of $16,600 in
             governmental assistance annually (Social Security), which equates to
             around $1,333 per month.

      15.    Reule’s Declaration of Indigence does not list the amount of the
             Settlement Check as money maintained by her in a bank account.

      16.    At the time of the August 4, 2017 hearing, Reule had approximately
             $11,400 in cash due to the Settlement Check. Based on Reule’s stated
             monthly expenses in her declaration, this $11,400 plus the $1,333 she
             receives every month in Social Security means she has available funds
             to afford to pay for costs of an appeal in this lawsuit, and her paying
             these costs will not cause her harm.

      Based on these findings of fact, signed on October 24, 2017, the trial court

concluded that Reule was not indigent for purposes of appellate costs.

                                   Applicable Law
      The rules regarding indigence were revised effective September 1, 2016.

See TEX. R. CIV. P. 145; TEX. R. APP. P. 20.1. Under the revised rules, an appellant

no longer files an affidavit of indigence, but instead files a Statement of Inability to
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Afford Payment of Court Costs. See TEX. R. CIV. P. 145(a). The district clerk, a

party, or court reporter may contest the Statement by filing a motion, but there is

no deadline for the filing of the contest. See id. 145(f)(1), (3). The district court

may also contest the Statement on its own motion “[w]henever evidence comes

before the court that the declarant may be able to afford costs, or when an officer

or professional must be appointed in the case, the court may require the declarant

to prove the inability to afford costs.” Id. 145(f)(4).

      A party who files a statement of inability to pay court costs may be required

to prove his inability at an oral evidentiary hearing, but the party may not be

required to pay court costs unless the trial court first holds an oral evidentiary

hearing, and ten days’ notice of the hearing must be given to the declarant. See

TEX. R. CIV. P. 145(f)(5).      “Notice must either be in writing and served in

accordance with Rule 21a or given in open court,” and at “the hearing, the burden

is on the declarant to prove the inability to afford costs.” Id. If the trial court

determines that the declarant can afford to pay court costs, the trial court must

issue an order containing detailed findings. See id. 145(f)(6). Absent a challenge,

a trial court order that the declarant can afford to pay court costs also controls the

costs on appeal unless the declarant files a motion in the appellate court alleging a

material change in circumstances. See TEX. R. APP. P. 20.1(b)(3).



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      The declarant may challenge an order that the declarant can afford to pay

court costs by timely filing a motion for review, within ten days of the signing of

the order, in the appellate court. See TEX. R. CIV. P. 145(g)(1). Once an appellant

appeals from a trial court’s order finding he or she can afford to pay costs, the trial

court clerk and court reporter must prepare at no charge a record of all proceedings

regarding the declarant’s claim of indigence. Id. 145(g)(3).

                                Standard of Review
      We review a trial court’s order on indigence using an abuse-of-discretion

standard. See Koehne v. Koehne, No. 01-17-00016-CV, 2017 WL 2375789, at *2

(Tex. App.—Houston [1st Dist.] June 1, 2017, order) (per curiam) (citing Arevalo

v. Millan, 983 S.W.2d 803, 804 (Tex. App.—Houston [1st Dist.] 1998, no pet.)).

In deciding whether the declarant is unable to afford to pay court costs, the test is

whether the declarant proved either than she receives public assistance, is being

assisted pro bono by counsel, or is unable to afford the payment of court costs. See

TEX. R. CIV. P. 145(e). We may find an abuse of discretion by the trial court only

if the trial court’s ruling is “so arbitrary and unreasonable as to be clearly wrong.”

Arevalo, 983 S.W.2d at 804; see also In the Interest of B.T.G., No. 05-17-00521-

CV, 2017 WL 2334243, at *1 (Tex. App.—Dallas May 30, 2017, no pet.) (mem.

op.) (stating that an “order granting the motion [contesting indigence] is reviewed

for abuse of discretion on appeal and will be affirmed unless the record reflects the


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trial court acted in an arbitrary and unreasonable manner or without reference to

any guiding rules or principles”) (citation omitted). “Generally, a complaint for

appellate review must be preserved by specific objection or motion in the trial

court to allow the trial court an opportunity to correct the error.” In the Interest of

B.T.G., 2017 WL 2334243, at *1 (citing, inter alia, TEX. R. APP. P. 33.1).

                                      Analysis
      Reule’s notice of appeal made several objections, including that she did not

receive the required ten days’ notice before the indigency hearing, that she did not

have enough time to prepare for the hearing, and she claims she was not required

to attend this hearing because there was no motion filed by a party. See TEX. R.

CIV. P. 145(f)(1), (5). Reule’s notice also contends that the appellees gave “her

back money that they stole from her” and “[b]ecause of [her] desperate situation,

(she’s been homeless since February 2017) she agreed to take the money and

dismiss the case leaving in[]tact her right to appeal.” Reule had objected at the

pauper’s oath challenge hearing that she had not received the required ten days’

notice, that she “had no ability to properly prepare for this hearing, and there’s no

motion before the court.”      Thus, Reule’s complaint that she did not receive

adequate notice is properly preserved. See In the Interest of B.T.G., 2017 WL

2334243, at *2 (citation omitted).




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      While the district court can sua sponte require the declarant to prove the

inability to afford costs, it still must provide ten days’ notice before the hearing.

See TEX. R. CIV. P. 145(f)(4), (5).       The district court responded to Reule’s

objection about lack of adequate notice by stating, “Okay. The Court has to rule

on an indigency affidavit within a certain period [of] time, isn’t that correct?”

However, while the district court provided an explanation for failing to provide the

ten days’ notice, “Texas Rule of Civil Procedure 145 does not allow for the

shortening of the notice period.” In the Interest of B.T.G., 2017 WL 2334243, at

*2 (citations omitted). Because Reule had the burden at the hearing to prove her

inability to pay costs and she received inadequate notice of that hearing, we

conclude that the district court abused its discretion in granting its own motion

challenging Reule’s declaration of indigence after only three days’ notice for the

hearing. See TEX. R. CIV. P. 145(f)(4), (5); see, e.g., In the Interest of B.T.G., 2017

WL 2334243, at *2 (granting appellant’s motion for review, reversing trial court’s

order sustaining contest to inability to pay court costs due to only six days’ notice

of hearing, and remanding for another hearing) (citation omitted).

      Because the clerk’s record was filed in this Court on August 24, 2017, we do

not need to remand for another hearing. On the record before us, we hold that the

trial court abused its discretion in sustaining its own motion contesting Reule’s



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declaration of indigence after only three days’ notice. See Koehne, 2017 WL

2375789, at *3.

                                    Conclusion
      Accordingly, we reinstate this appeal on the active docket, grant Reule’s

motion to review, reverse the trial court’s August 25, 2017 order, and we order

that Reule may proceed with this appeal without payment of filing fees or costs for

the clerk’s or reporter’s records. We further order the court reporter to file within

30 days of the date of this Order the reporter’s records of any trial hearings held on

March 13, 2017, or April 27, 2017. Appellant’s brief will be due 30 days after the

reporter’s records are filed.

      It is so ORDERED.

Judge’s signature: /s/ Evelyn V. Keyes
                    Acting for the Court

Panel consists of Justices Keyes, Brown, and Lloyd




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