Opinion issued December 4, 2014




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                             ————————————
                              NO. 01-13-00577-CV
                            ———————————
                         ANGELO CLARK, Appellant
                                        V.
                           CARLA CLARK, Appellee


                    On Appeal from the 257th District Court
                             Harris County, Texas
                       Trial Court Case No. 2012-69700


                          MEMORANDUM OPINION

      Proceeding as a pro se inmate, Appellant Angelo Clark petitioned for

divorce from his wife, Carla Clark. With his petition for divorce, Clark filed an

affidavit of inability to pay costs. See TEX. R. CIV. P. 145; TEX. CIV. PRAC. & REM.

CODE ANN. § 14.004. (West Supp. 2014). The Harris County District Clerk filed a
contest to the affidavit. The trial court sustained the contest and ordered Clark to

pay the fees. Because Clark failed to pay the fees, the trial court dismissed the

case for want of prosecution.      We conclude that Clark was indigent and not

required to pay the fees, hold that the trial court abused its discretion in dismissing

his case for want of prosecution, and reverse the trial court’s dismissal order.

                                    Background

      Clark, an inmate of the Texas Department of Criminal Justice Institutional

Division, filed a petition for divorce, based on Carla having abandoned the

marriage, and an affidavit of inability to pay costs. Clark filed his affidavit with an

unsworn declaration under Chapter 132 of the Civil Practice and Remedies Code.

See TEX. CIV. PRAC. & REM. CODE ANN. § 132.001 (West Supp. 2014) (unsworn

declaration under penalty of perjury by an inmate in Texas Department of

Corrections may be used in lieu of affidavit).

      Clark averred specific facts supporting his inability to pay costs because of

poverty:

      I have no income, own no property except items of personal hygi[e]ne
      and small appliances. I received gifts from family and friends from
      time to time in an unscheduled manner. I have no investment in any
      form, Stock nor bonds, nor funds of any type annuities or other.

      Clark also included a copy of his inmate trust account statement, which

shows that he had a zero balance for the six months prior to his petitioning for

divorce and filing his affidavit of indigency.


                                          2
      The district clerk filed a contest to the affidavit of indigence, primarily

relying upon Chapter 14 of the Texas Civil Practice and Remedies Code, and the

trial court held a hearing on the contest. See TEX. CIV. PRAC. & REM. CODE ANN.

§ 14.001 (West 2002); TEX. R. CIV. P. 145. Clark did not appear at the hearing,

and the trial court took judicial notice that Clark was served notice of the hearing.

The record reflects that neither the district clerk nor the trial court discussed the

substance of Clark’s affidavit or the district clerk’s contest.       The trial court

sustained the contest and, on the same day, signed the Judgment and Order

Sustaining Contest to Pauper’s Oath, which ordered Clark to pay in full all filing

fees in the amount of $311.00 plus any and all costs incurred in the process of the

case. Two months later, the trial court dismissed the case for want of prosecution

because Clark had failed to pay the fees.

                                     Discussion

A.    Standard of Review

      We review the trial court’s dismissal of an in forma pauperis suit under an

abuse of discretion standard. Donaldson v. Tex. Dep’t of Criminal Justice-Corr.

Insts. Div., 355 S.W.3d 722, 724 (Tex. App.—Tyler 2011, pet. denied) (citing

Hickson v. Moya, 926 S.W.2d 397, 398 (Tex. App.—Waco 1996, no writ)). A trial

court abuses its discretion if it acts arbitrarily, capriciously, and without reference

to any guiding rules or principles. Id. (citing Lentworth v. Trahan, 981 S.W.2d



                                            3
720, 722 (Tex. App.—Houston [1st Dist.] 1998, no pet.)). We will affirm a

dismissal if it was proper under any legal theory. Id.; Johnson v. Lynaugh, 796

S.W.2d 705, 706–07 (Tex. 1990). “The trial courts are given broad discretion to

determine whether a case should be dismissed because (1) prisoners have a strong

incentive to litigate; (2) the government bears the cost of an in forma pauperis suit;

(3) sanctions are not effective; and (4) the dismissal of unmeritorious claims accrue

to the benefit of state officials, courts, and meritorious claimants.” Donaldson, 355

S.W.3d at 724.

B.    Applicable Law

      “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?’” Higgins v. Randall Cnty. Sheriff’s Office,

257 S.W.3d 684, 687 (Tex. 2008) (quoting Pinchback v. Hockless, 139 Tex. 536,

164 S.W.2d 19, 20 (1942)).

      Chapter 14 of the Texas Civil Practice and Remedies Code governs suits

brought by an inmate in which the inmate filed an affidavit or unsworn declaration

of inability to pay costs, but does not apply to an action brought under the Family

Code. TEX. CIV. PRAC. & REM. CODE ANN. § 14.002(a), (b) (West Supp. 2014)

(“This chapter does not apply to an action brought under the Family Code”). As



                                          4
such, none of the Clerk’s arguments in support of the contest were valid to the

extent they relied upon Chapter 14.

      Any party who is unable to afford costs associated with an original action,

regardless of whether the party is an inmate, must file an affidavit in lieu of paying

or giving security for such costs. TEX. R. CIV. P. 145(a). A party “unable to afford

costs” is defined as a person who is presently receiving a governmental entitlement

based on indigency or any other person who has no ability to pay costs. Id. Upon

a party’s filing of such an affidavit, the clerk must docket the action, issue citation,

and provide such other customary services as are provided any party. Id. Texas

Rule of Civil Procedure 145 requires that an affidavit of indigency include:

      complete information as to the party’s identity, nature and amount of
      governmental entitlement income, nature and amount of employment
      income, other income, (interest, dividends, etc.), spouse’s income if
      available to the party, property owned (other than homestead), cash or
      checking account, dependents, debts, and monthly expenses. The
      affidavit shall contain the following statements: “I am unable to pay
      the court costs. I verify that the statements made in this affidavit are
      true and correct.” The affidavit shall be sworn before a notary public
      or other officer authorized to administer oaths.

TEX. R. CIV. P. 145(b).

      Once a contest is filed, if the court finds at the first regular hearing in the

course of the action that the party, other than a party receiving a governmental

entitlement based on indigency, is able to afford costs, the party must pay the costs

of the action. TEX. R. CIV. P. 145(d). A trial court that finds that a party is able to



                                           5
afford costs must set forth its “[r]easons for such a finding” in an order. Id.

Except with leave of court, no further steps in the action will be taken by a party

who is found able to afford costs until payment is made. Id.

      When an affidavit of indigence is filed pursuant to Rule 145, a trial court

may dismiss the case on a finding that the allegation of poverty in the affidavit is

false. TEX. CIV. PRAC. & REM. CODE ANN. § 13.001(a)(1) (West 2002); In re

Kastner, No. 14–09–00653–CV, 2009 WL 3401867, at *1 (Tex. App.—Houston

[14th Dist.] 2009, orig. proceeding [mand. denied]) (mem. op.) (“When the trial

court has sustained a contest to an affidavit of indigence filed pursuant to Texas

Rule of Civil Procedure 145, the court typically dismisses the case, finding the

allegation of poverty is false and/or the case is frivolous.”). The purpose of section

13.001 is to ensure that limited resources are employed as efficiently as possible to

resolve arguable claims and claims without merit are dismissed at an early stage in

the proceedings. Black v. Jackson, 82 S.W.3d 44, 53 (Tex. App.—Tyler 2002, no

pet.); Pedraza v. Tibbs, 826 S.W.2d 695, 698 (Tex. App.—Houston [1st Dist.]

1992, writ dism’d w.o.j.).

C.    Analysis

      In his sole issue, Clark challenges the trial court’s order dismissing his

petition for divorce based upon the implied finding that his allegation of poverty

was false. Because Clark’s petition for divorce, based on abandonment, was



                                          6
brought under the Family Code, Chapter 14 of the Civil Practice and Remedies

Code does not apply. See TEX. CIV. PRAC. & REM. CODE ANN. § 14.002(b) (“This

chapter does not apply to an action brought under the Family Code”); TEX. FAM.

CODE ANN. § 6.005 (West 2006) (court may grant divorce if one spouse left

complaining spouse with intention of abandonment and remained away for at least

one year). Accordingly, we review Clark’s affidavit and the district clerk’s contest

only under Texas Civil Procedure Rule 145 and Chapter 13 of the Civil Practice

and Remedies Code.

      Here, the trial court’s order sustaining the Clerk’s contest did not expressly

identify its statutory basis for dismissing Clark’s case. But because the order

sustaining the district clerk’s contest stated that Clark was “able to pay all filing

fees” and had not filed his affidavit in good faith, we conclude that the trial court’s

dismissal was based upon section 13.001(a)(1), which permits a court to dismiss a

lawsuit upon finding that the allegation of poverty is false. See Jackson v. North

Forest Indep. Sch. Dist., No. 01-10-00010-CV, 2012 WL 246052, at *4 (Tex.

App.—Houston [1st Dist.] 2012, no pet.) (mem. op.) (trial court’s dismissal based

upon section 13.001(a)(1) where dismissal order did not state statutory basis for

dismissing but expressly found appellants were able to pay all costs and “in its

prior order sustaining the district clerk’s contest, which the trial court effectively

incorporated into its dismissal order, the trial court stated that [appellants] had not



                                          7
filed their affidavit in good faith”); see also In re Kastner, 2009 WL 3401867, at

*2 (noting that courts, after sustaining contest to affidavit of indigence, “typically”

dismiss cases under grounds articulated in section 13.001).

       In his affidavit, Clark averred that he was an inmate, had no income, owned

no personal property, and had no investments. Clark’s affidavit therefore complies

in all material respects with Rule 145 and provided the information specifically

articulated in the Rule, and we conclude that in considering the record as a whole,

the preponderance of the evidence demonstrates that Clark was unable to pay the

costs ordered by the trial court. See In re C.H.C., 331 S.W.3d 426, 429 (Tex.

2011).

       Additionally, if a trial court finds that a party is able to afford to pay court

costs, the trial court’s order must include “[r]easons for such a finding.” See TEX.

R. CIV. P. 145 (“If the court finds . . . that the party . . . is able to afford costs, the

party must pay the costs of the action. Reasons for such a finding must be

contained in an order.”) This court has held that it is an abuse of discretion to

sustain a contest and dismiss a lawsuit “[w]ithout any record as to why the trial

court found the [appellants’] affidavit of indigency to be false, and without the

benefit of any reasoning set forth by the trial court in its order sustaining the

contest or in its subsequent dismissal order.” See Jackson, 2012 WL 246052, at

*5–6. Here, in addition to relying upon the inapplicable provisions of Chapter 14



                                            8
of the Civil Practice and Remedies Code, 1 the district clerk’s contest to Clark’s

affidavit included a general citation to Rule 145(b), the statutory language of

145(b), and the assertion that Clark “failed in complying with one or more of the

statutory requirements of TRCP 145(b).” At the hearing, the district clerk did not

identify any errors or omissions in Clark’s affidavit and the trial court ruled on the

contest without any substantive discussion regarding the contest or affidavit. The

trial court’s order sustaining the contest and its dismissal order set forth no

reasoning to support its finding that Clark’s allegation of poverty was false.

Because the trial court failed to set forth any reasoning in its order sustaining the

contest or in its subsequent dismissal order, we conclude that the trial court erred

by dismissing Clark’s suit. See Jackson, 2012 WL 246052, at *5–6.

      We sustain Clark’s sole issue.




1
      The district clerk’s contest also alleged that Clark’s affidavit failed to comply with
      statutory requirements under Chapter 14 of the Civil Practice and Remedies Code.
      See TEX. CIV. PRAC. & REM. CODE ANN. §§ 14.004(a), (c), (f) (West Supp. 2014).
      But because Chapter 14 does not apply here, the trial court could not have
      properly sustained the contest based on such allegations. See id. § 14.002(b)
      (West Supp. 2014) (“This chapter does not apply to any action brought under the
      Family Code”).

                                            9
                                    Conclusion

      We reverse the trial court’s order of dismissal and remand the case for

further proceedings consistent with this opinion.



                                              Rebeca Huddle
                                              Justice

Panel consists of Justices Massengale, Brown, and Huddle.




                                         10
