Summary
disagreeing that appellate court could remand for missing findings required by Rule 145(f)
Summary of this case from Strickland v. iHeartMedia, Inc.Opinion
NO. 14-21-00430-CV
09-20-2021
In the INTEREST OF L.A.V. and S.H.V., Children
Sandra D. Hachem, Houston, Ieshia Champs, for Appellee. A V.V., Pro Se. T. V.V., Pro Se.
Sandra D. Hachem, Houston, Ieshia Champs, for Appellee.
A V.V., Pro Se.
T. V.V., Pro Se.
Panel consists of Justices Jewell, Spain, and Wilson
DISSENT TO ORDER
Charles A. Spain, Justice
I agree with the court's conclusion that the trial court's orders do not contain sufficiently detailed findings to satisfy Texas Rule of Civil Procedure 145(f)(2). Tex. R. Civ. P. 145(f)(2). I disagree, however, that we are authorized under these circumstances to order the trial court to cure its void orders.
I dissent.
Rule 145 unequivocally provides that, when, as here, a "Statement of Inability to Afford Payment of Court Costs" has been filed, "the declarant must not be ordered to pay costs " unless four "procedural requirements" have been satisfied":
(f) Notice; Hearing; Requirements of Order. When a Statement has been filed, the declarant must not be ordered to pay costs unless these procedural requirements have been satisfied:
(1) Notice and Hearing. The declarant must not be required to pay costs without an oral evidentiary hearing. The declarant must be given 10 days' notice of the hearing. Notice must either be in writing and served in accordance with Rule 21a or given in open court. At the hearing, the burden is on the declarant to prove the inability to afford costs.
(2) Findings Required. An order requiring the declarant to pay costs must be supported by detailed findings that the declarant can afford to pay costs.
(3) Partial and Delayed Payment. The court may order that the declarant
pay the part of the costs the declarant can afford or that payment be made in installments. But the court must not delay the case if payment is made in installments.
(4) Order Must State Notice of Right to Appeal. An order requiring the declarant to pay costs must state in conspicuous type: "You may challenge this order by filing a motion in the court of appeals within 10 days after the date this order is signed. See Texas Rule of Civil Procedure 145."
Tex. R. Civ. P. 145(f) (emphasis added). Rule 145 is likewise unambiguous that failure to satisfy the above requirements voids an order of costs in a judgment: "The judgment must not require the declarant to pay costs, and a provision in the judgment purporting to do so is void , unless the court has issued an order that complies with (f)[.]" Tex. R. Civ. P. 145(h).
I would read these provisions together to dictate that we cannot order a "do over" in this case. The plain text of the rule indicates that the trial court's failure to meet the requirements of Rule 145(f) voids its orders that "neither the court reporter nor the clerk of this court have a duty to prepare the records for appeal of the judgment in this case without payment of costs." It makes little sense to determine that such orders would be void in a judgment but are curable here.
While there does not appear to be a robust body of caselaw on this issue, at least one of our sister courts, when faced with an order to pay costs in a judgment when a statement of inability to pay costs had been filed and the requirements of rule 145(f) had not been met, sua sponte reversed the order as void and deleted it from the judgment. White v. Smith , 591 S.W.3d 198, 202–03 (Tex. App.—Tyler 2019, no pet.) ("If a ruling is void, the appellate court lacks jurisdiction to review the ruling's merits.").
In addition, one of the clear purposes of Rule 145 is to resolve these issues expeditiously. The rule specifically requires the appellate court to rule "promptly" and "at the earliest practicable time." Tex. R. Civ. P. 145(g)(4). This directive is all the more important in a case such as this involving termination of parental rights.
Not knowing which of the Houston courts of appeals this case would be assigned to, appellants filed their challenge to the trial court's orders in the trial court on August 2, 2021, and also noted in their notice of appeal their challenges to these orders. This court did not receive the challenges until August 27, 2021 when, pursuant to this court's proactive efforts to address these issues in this time-sensitive case, a clerk's record pertaining to trial court proceedings on appellants' claim of inability to afford payment of court costs was filed in this case.
--------
Nothing in Rule 145 grants this court the authority to remand for further proceedings when the requirements of the rule have not been met; instead, the plain text of the rule indicates that the trial court's orders are void. The rule further directs us to rule at the earliest practicable time. Under these circumstances, I would conclude appellants are entitled to a free record on appeal and would proceed to the merits of the case instead of taking additional time and judicial resources for further proceedings, both in the trial court and this court, on already void orders.
I dissent.
( Spain, J., dissenting).