Memorandum Opinion by Justice Burgess

On Appeal from the County Court at Law No. 2 Gregg County, Texas
Trial Court No. 2015-1679-CCL2 Before Morriss, C.J., Moseley and Burgess, JJ.
Memorandum Opinion by Justice Burgess MEMORANDUM OPINION

On January 11, 2017, Felicia Pierce filed a Statement of Inability to Afford Payment of Court Costs in the County Court at Law No. 2 of Gregg County in trial court cause number 2015-1679-CCL2, styled Felicia Pierce v. Andrew Riley, et al. Defendants CitiFinancial Servicing, LLC, and Andrew Riley (collectively CitiFinancial) contested Pierce's alleged inability to afford payment of court costs and further claimed that, pursuant to Section 13.003 of the Texas Civil Practice and Remedies Code, Pierce was not entitled to a free appellate record because her appeal was frivolous. See TEX. CIV. PRAC. & REM. CODE ANN. § 13.003 (West 2002). Following a hearing on January 26, 2017, the trial court sustained the contest and issued an order denying Pierce's claim of inability to afford payment of court costs. In its order, the trial court included a finding that the appeal of the trial court's judgment was frivolous.

Pierce timely filed a motion in this Court challenging the trial court's order. See TEX. R. CIV. P. 145(g)(1). We review the trial court's order for an abuse of discretion. See Garza v. Garza, 155 S.W.3d 471, 475 (Tex. App.—San Antonio 2004, no pet.).

Rule 145 of the Texas Rules of Civil Procedure was rewritten, effective September 1, 2016. Under the revised Rule, "A party who files a Statement of Inability to Afford Payment of Court Costs cannot be required to pay costs except by order of the court as provided by this rule." TEX. R. CIV. P. 145(a). The Rule further requires the declarant to provide, in the statement of inability to pay costs, evidence of his inability to afford costs.

Here, Pierce's statement indicates that she is "unable to pay court costs." The statement further indicates that Pierce receives "Food Stamps/SNAP" and Medicaid. Pierce's total monthly net income is $1,476.00, and her monthly expenses, which were itemized on the statement, total $1,063.00. The statement further indicates that Pierce has three financially dependent minor children. Pierce owns property in the total amount of $624.52 and owes debts in the amount of $48,000.00 (student loans), $14,120.00 (repossession), and $3,025.00 (other loans).

A person who files a statement of inability to pay court costs can be required to prove her inability to afford costs at an oral evidentiary hearing. TEX. R. CIV. P. 145(f). In this case, CitiFinancial contested Pierce's declaration. There is no indication in the record before us, however, that CitiFinancial's contest was sworn to or otherwise complied with the requirements of the Rule. See TEX. R. CIV. P. 145(f)(1).

At the hearing, Pierce stated that her annual gross income was $16,135.70 and introduced a copy of her W-2 Wage and Tax Statement for 2016, which reflected that amount. Pierce's children received free lunches as students in the Frisco Independent School District, and Pierce received government assistance through the Supplemental Nutrition Assistance Program (SNAP) and through Medicaid for herself and her three children. Pierce introduced, without objection, the affidavit of Tonja Hawthorne, who stated that Pierce's family members and friends were able to help her pay for "court fees" in the past, but are no longer able to do so. Pierce also introduced a statement from the Texas Health and Human Services Commission, without objection, that she and her three children receive SNAP benefits, together with a letter from the Frisco ISD Child Nutrition Department stating that Pierce's three children are eligible for free breakfast and lunch.

Pierce testified that, although her family has helped finance this lawsuit in the past, she is no longer able to garner additional financial support. She has contacted approximately fifteen family members seeking assistance in paying for the appellate record, but to no avail. Pierce has a business called the Hookum Music Group, in which she assists independent artists with songwriting. Pierce testified that Hookum does not currently generate income. A business profile for Hookum was offered into evidence. The profile, which apparently was generated by Buzzfile, indicates that Hookum is estimated to generate $84,221.00 in annual revenue. Pierce denied that Hookum made any money whatsoever. Pierce is currently employed by VSSI, LLC, and earns annual gross wages of $16,135.70.

Although the trial court ruled that Pierce is not entitled to a free appellate record, that order did not comply with Rule 145. When the trial court orders a declarant to pay court costs, it is required under Rule 145 to support that order with "detailed findings that the declarant can afford to pay costs." TEX. R. CIV. P. 145(f)(6). No such findings were included in the trial court's order.

Here, Pierce filed a statement of inability to pay court costs that complied with Rule 145. She introduced evidence of her inability to afford payment of court costs at the hearing. Further, CitiFinancial's contest to Pierce's statement failed to comply with Rule 145. The only controverting evidence introduced at the hearing was a document printed from Buzzfile estimating Hookum's annual revenue, which statement was disputed by Pierce. Moreover, the trial court's order was unsupported by findings required by Rule 145. Given these circumstances, we find that the trial court erred in holding that Pierce was not entitled to a free appellate record based on her inability to afford to pay for the record.

CitiFinancial also challenged Pierce's entitlement to a free record pursuant to Section 13.003 of the Texas Civil Practice and Remedies Code. This Section provides that a free record is only available if the appeal is not frivolous. See TEX. CIV. PRAC. & REM. CODE ANN. § 13.003(a)(1)(A). An appeal "is frivolous when it 'lacks an arguable basis either in law or in fact.'" In re K.D., 202 S.W.3d 860, 866 (Tex. App.—Fort Worth 2006, no pet.) (quoting De La Vega v. Taco Cabana, Inc., 974 S.W.2d 152, 154 (Tex. App.—San Antonio 1998, no pet.)). "In determining whether an appeal is frivolous, a judge may consider whether the appellant has presented a substantial question for appellate review." TEX. CIV. PRAC. & REM. CODE ANN. § 13.003(b). We review a trial court's determination of whether an appeal is frivolous for an abuse of discretion. In re A.V., 350 S.W.3d 317, 320 (Tex. App.—San Antonio 2011, no pet.). A trial court abuses its discretion if it acts without reference to any guiding rules or principles. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).

Pierce filed a trespass to try title action in the trial court. Rule 784 of the Texas Rules of Civil Procedure provides that the defendant in a trespass to try title action "shall be the person in possession if the premises are occupied, or some person claiming title thereto in the case they are unoccupied." TEX. R. CIV. P. 784. In accordance with Rule 784, Pierce named as defendants those individuals in physical possession of the property. In accordance with Rule 39(a) of the Texas Rules of Civil Procedure, however, the trial court ordered Pierce to name certain (unnamed) additional parties to the action. Despite having being initially accorded ninety days in which to name the additional defendants as ordered by the trial court, Pierce allegedly failed to name all additional parties that could have an interest in the lawsuit. Thereafter, the trial court extended the time within which compliance with its order should be accomplished. Although Pierce served a number of additional defendants in accordance with the trial court's order, she evidently failed to add all of the required parties to her lawsuit—none of whom were evidently listed in any order issued by the trial court. Consequently, the trial court entered a final judgment with prejudice to refiling in favor of "movants and all defendants on all claims and causes of action" including "trespass to try title, slander of title, conspiracy to steal and commit fraud, civil conversion, trespass and Texas Theft Liability Act." Additionally, the trial court denied Pierce's motion for temporary and permanent injunctive relief, dismissed those claims with prejudice, and ordered that the notice of lis pendens filed by Pierce in the deed records of Gregg County, Texas, "will be void upon entry of this judgment in the absence of an appeal."

On the scant record before us, we cannot determine whether the trial court acted within its discretion in finding the appeal frivolous. To make such a determination would require an analysis of whether the trial court abused its discretion in requiring the joinder of absent persons and entities and whether the trial court erred in dismissing the entirety of Pierce's claims. This analysis and resulting decision would necessarily encompass the entirety of Pierce's appeal. We, therefore, hold that the appeal cannot be classified as frivolous.

We reverse the order of the trial court and remand this matter for further proceedings consistent with this opinion.

Ralph K. Burgess

Justice Date Submitted: March 6, 2017
Date Decided: March 16, 2017