                                                                                  ACCEPTED
                                                                             03-15-00107-CV
                                                                                     4468940
                                                                    THIRD COURT OF APPEALS
                                                                              AUSTIN, TEXAS
                                                                        3/12/2015 9:43:21 AM
                                                                            JEFFREY D. KYLE
                                                                                       CLERK
                     CAUSE NO. 03-15-00107-CV
   _____________________________________________________________
                                                          FILED IN
                                                   3rd COURT OF APPEALS
                IN THE THIRD COURT OF APPEALS AUSTIN, TEXAS
                         AUSTIN, TEXAS             3/12/2015 9:43:21 AM
   ____________________________________________________________
                                                     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
________________________________________________________________________

            COURT REPORTER DANA DANCE’S RESPONSE TO
      APPELLANT’S MOTION TO CHALLENGE TRIAL COURT ORDER
    SUSTAINING CONEST TO APPELLANTS’S AFFIDAVIT OF INDIGENCY
_______________________________________________________________________

                                 James S. Bettersworth
                                 The Bettersworth Law Firm
                                 State bar No. 24005342
                                 110 West Faust Street
                                 New Braunfels, Texas 78130
                                 (830) 606-0404
                                 (830) 626-1414 (fax)
                                 bettersworth@bettersworthlaw.com

                                 Attorney for Dana Dance




                                   1
TO THE HONORABLE JUDGES OF SAID COURT:

           Now Comes DANA DANCE, the Court Reporter for the Comal County Court

at Law, Comal County Texas, and respectfully request that the Court deny the Appellant’s

request to be allowed to proceed with her appeal without payment of costs and that the

order sustaining the contest be upheld; or in the alternative, that this cause be sent back to

the trial court for a new hearing on DANA DANCE’s contest to the affidavit of indigence

filed by SUZANNA ECKCHUM pursuant to Tex.R.App.20.1(i) and for same would

show unto the court as follows:

                                   A. Procedural History

           As stated in the Appellant’s motion, Appellant timely filed her notice of Appeal

on February 12, 2015. On that same date, Appellant filed an “Affidavit of Indecency.”

DANA DANCE timely contested the affidavit on February 23, 2015 by filing her contest

with the trial court clerk pursuant to Tex.R.App.20.1(e)(1). The trial court held a hearing

on the contest on February 25, 2015 at 1:30 p.m. C.R. Supp.1.      Notice of the hearing was

sent by counsel for DANA DANCE by both certified mail and email.

           The trial court signed an order sustaining DANA DANCE’s contest on

February 25, 2015.

                                B. Argument & Authorities

           The trial court did not abuse its discretion in sustaining the contest.




                                              2
      1. When a contest is filed, the party who filed the affidavit of indigence must
prove the affidavit’s allegations.

       The Appellant acknowledges that a timely contest to the affidavit of indigence was

filed. According to Tex.R.App. 20.1(g), if a contest is timely filed, the party who filed the

affidavit of indigence must prove the affidavit’s allegations. As such, when DANA

DANCE timely filed the contest, the burden to prove the affidavit’s allegations shifted to

the appellant.   If the Appellant was incarcerated at the time of the hearing on contest is

held, the affidavit must be considered as evidence and is sufficient to meet the indigent

party’s burden to present evidence without the indigent party’s attending the hearing. The

Appellant in this case was not incarcerated at the time of the hearing. The Appellant

points to no authority to support the argument that when a contest is timely filed and a

hearing held, the Appellant may simply rely on the affidavit as evidence of indigence.

In this case, the Appellant did not prove the affidavit’s allegations as required by

Tex.R.App.20.1(g).

       2. Notice was sent to the Appellant pursuant to T.R.C.P. 21a

       As reflected in the certificate of service to the Contest filed by DANA DANCE, said

contest was served pursuant to the Texas Rules of Civil Procedure. However, it does not

appear that the contest nor the notice of hearing on same were sent out until February 23,

2015 as opposed to February 20, 2015. Counsel for DANA DANCE informed the trial

court of this fact at the hearing held on February 25, 2015 at 1:30. Counsel for DANA

DANCE further informed the trial court that both the contest and the notice of hearing on

same were sent to the Appellant via certified mail, return receipt requested and to the email



                                             3
address provided by the Appellant on her Affidavit of Indigence. The Appellant claims in

her motion that she did not receive the certified mail which contained the contest or notice

of hearing until after the hearing had been held however she does not indicate whether she

received the contest and notice of hearing on same via email. Service by email is

permitted by T.R.C.P. 21a(a)(2). Counsel for DANA DANCE will represent that while

the contest and notice of hearing were sent to the email address provided by the Appellant

on her affidavit of indigence, counsel for DANA DANCE does not have confirmation that

Appellant received the email.

       Both the contest and the notice of hearing on same were e-filed. Service through

the electronic filing manager is permitted by T.R.C.P. 21a(a)(1). Counsel for DANA

DANCE was unable to verify if the Appellant received service through the EFM system.

                                       C. Conclusion

       FOR THESE REASONS, DANA DANCE asks the Court to deny the Appellant’s

motion or in the alternative that the Court refer this matter back to the trial court for a new

hearing on DANA DANCE’s contest.

                                              Respectfully submitted,

                                               /s/ James S. Bettersworth
                                             JAMES S. BETTERSWORTH
                                             The Bettersworth Law Firm
                                             State bar No. 24005342
                                             110 West Faust Street
                                             New Braunfels, Texas 78130
                                             (830) 606-0404
                                             (830) 626-1414 (fax)
                                             bettersworth@bettersworthlaw.com

                                             Attorney for Dana Dance


                                              4
                            CERTIFICATE OF SERVICE

      I certify that on March 12, 2015 a true and correct copy of the above and foregoing
response was served to each person listed below by fax.

             Joshua D. Presley
             Comal County Assistant District Attorney
             150 North Seguin, Suite 370
             New Braunfels, Texas 78130
             Fax: (830) 608-2008

             Mysha Lubke
             Baker Botts, L.L.P.
             98 San Jacinto Blvd., Suite 1500
             Austin, Texas 78701
             Fax: (512) 322-2501


                                            /s/ James S. Bettersworth
                                           JAMES S. BETTERSWORTH




                                           5
