Motion Denied; Order filed August 19, 2016.




                                      In The

                     Fourteenth Court of Appeals
                                   ____________

                              NO. 14-16-00577-CV
                                   ____________

                       CHARLIE JONES, JR., Appellant

                                         V.

                       CHRISTOPHER FUNK, Appellee


             On Appeal from the County Civil Court at Law No. 2
                           Harris County, Texas
                      Trial Court Cause No. 1064844

                                     ORDER

      This is an appeal from a judgment signed June 8, 2016. Appellant filed an
affidavit of indigence in the trial court to which the Harris County Clerk filed a
contest. On August 10, 2016, the trial court signed an order sustaining the county
clerk’s contest and ordering appellant to pay costs on appeal.
      On August 10, 2016, appellant filed a motion with this court requesting that
we review the trial court’s order sustaining the contest to his affidavit of indigence.
See Tex. R. App. P. 20.1(j)(1).

      When a contest is sustained and a review of the ruling is sought, the question
is whether an examination of the record as a whole establishes that the trial court
abused its discretion. See Jones v. Duggan, 943 S.W.2d 90, 93 (Tex. App.—Houston
[1st Dist.] 1997, orig. proceeding). In ruling on the merits of the evidence at the trial
court level, the test for determining entitlement to proceed in forma pauperis is
whether the preponderance of the evidence shows that the appellant would be unable
to pay the costs of appeal, if he really wanted to and made a good faith effort to do
so. See Griffin Indus. v. Thirteenth Court of Appeals, 934 S.W.2d 349, 351 (Tex.
1996). To show a clear abuse of discretion, the appellant must show that, under the
circumstances of the case, the facts and law permit the trial court to make but one
decision. See Cronen v. Smith, 812 S.W.2d 69, 70 (Tex. App.—Houston [1st Dist.]
1991, orig. proceeding).

      Texas Rule of Appellate Procedure 20.1 governs affidavits of indigence. It
permits a party to proceed with an appeal without advance payment of costs if (1)
the party files an affidavit of indigence in compliance with the rule; (2) either the
claim of indigence is not contested or the contest is not sustained; and (3) the party
files a timely notice of appeal. Tex. R. App. P. 20.1(a). The affidavit must identify
the party filing it, state the amount of costs the party can pay, if any, and contain
complete information regarding sources of income and property. Tex. R. App. P.
20.1(b). The affidavit must specifically state:

      (1) the nature and amount of the party’s current employment income,
      government-entitlement income, and other income;
      (2) the income of the party’s spouse and whether that income is
      available to the party;
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      (3) real and personal property the party owns;
      (4) cash the party holds and amounts on deposit that the party may
      withdraw;
      (5) the party’s other assets;
      (6) the number and relationship to the party of any dependents;
      (7) the nature and amount of the party’s debts;
      (8) the nature and amount of the party’s monthly expenses;
      (9) the party’s ability to obtain a loan for court costs;
      (10) whether an attorney is providing free legal services to the party
      without a contingent fee; and
      (11) whether an attorney has agreed to pay or advance court costs.

Tex. R. App. P. 20.1(b)(1)–(11).

      In appellant’s affidavit, he listed as assets $700 in monthly earnings the
previous month, the address of real property owned other than his homestead, and a
truck on which he owed payment.

      The burden of proof at the hearing on the contest to the affidavit is on the
individual claiming indigence. See Tex. R. App. P. 20.1(g). At the hearing appellant
testified that he does not have a full-time job but works “odds and ends.” Appellant
stated that the affidavit of indigence was not recent, and that he had not earned $700
in the previous month. Appellant has a zero balance in his bank account despite
stating in his affidavit that he had $102. Appellant owns a truck, and has
approximately $400 in personal property. He does not own the home he lives in, but
does odd jobs in exchange for rent. The real property listed on his affidavit is the
subject of the judgment he wishes to appeal. On the first day of the hearing, the trial
court noted that appellant’s affidavit was not sworn and did not contain each of the
items required by Texas Rule of Appellate Procedure 20.1. The trial court read the
requirements in open court, and appellant asked for more time to prepare. Appellant

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agreed that one additional day was sufficient to meet the requirements of Rule 20.1.
The hearing was continued to the following day.

      At the hearing the next day appellant failed to appear. On the record the trial
court noted that it waited more than fifteen minutes for appellant, but appellant failed
to appear. The court noted that appellant’s affidavit of indigence was not verified or
sworn. The court further noted that the previous day when appellant appeared in
court he was carrying a “smart phone,” which the court concluded indicated
appellant had resources with which to purchase the phone. At the conclusion of the
second hearing, the trial court sustained the county clerk’s contest.

      Having reviewed the evidence at the hearing in the trial court, we conclude
the court did not abuse its discretion in denying appellant’s request to proceed
without the payment of costs. Therefore, appellant is directed to pay or make
arrangements to pay for the record in this appeal. See Tex. R. App. P. 35.3(a)(2).
Unless appellant provides this court with proof of payment for the filing fee within
fifteen days of the date of this order, we will dismiss the appeal for want of
prosecution. See Tex. R. App. P. 37.3(b).

                                        PER CURIAM

Panel consists of Chief Justice Frost and Justices Boyce and McCally.




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