Opinion
NO. 14-17-00914-CV
04-17-2018
NDEM BURABARI ODUU, Appellant v. BARIVURE ELIZABETH DAN-DUKOR, Appellee
On Appeal from the 311th District Court Harris County, Texas
Trial Court Cause No. 2016-00572
ORDER
Appellant Ndem Burabari Oduu filed a motion challenging the trial court's order that he pay the costs of his appeal. See Tex. R. Civ. P. 145(g). He contends the trial court abused its discretion in finding him not indigent and, therefore, able to afford payment of costs. We deny the motion and affirm the trial court's order.
BACKGROUND
A. Our first indigence ruling
On December 7, 2017, appellant filed in this court a document entitled, "Affidavit of Inability to Pay Costs," which we treated as a statement of inability to afford payment of costs. See Tex. R. App. P. 20.1. If appellant had not been required to pay costs in the trial court, he would not be required to pay costs on appeal absent a material change in circumstances. Tex. R. App. P. 20.1(b). We did not know whether appellant had been required to pay costs in the trial court, so we ordered the district clerk to file a partial clerk's record containing any statement of inability to afford payment of costs appellant had filed as well as any contest to the statement, ruling on the contest, and other documents regarding appellant's request to proceed without payment of costs.
The partial record filed by the district clerk contained a document entitled "Affidavit of Inability to Pay Costs" and file-stamped November 28, 2017. The record does not contain any contest to appellant's affidavit or order requiring appellant to pay costs. See Tex. R. Civ. P. 145(f). "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). Accordingly, on January 8, 2018, we ordered the district clerk and the court reporter to file the record without charge.
On February 1, 2018, the court reporter, Stephanie Wells, filed a letter in this court contending neither she nor the trial court knew appellant sought to appeal without payment of costs. She wrote:
Appellant did not file this Affidavit with the Clerk of the 311th District court and did not present the Affidavit to the Court for a ruling. Consequently, neither the Court nor I had notice that Appellant was attempting to appeal as an indigent.The letter also identified deficiencies with the affidavit. Wells asked us to abate the appeal and remand to the trial court so she could file a contest to appellant's statement of inability to afford payment of costs. The letter indicated it was sent by email to appellant. No response was filed.
We issued an order on February 22, 2018, abating the appeal and directing the trial court to permit Wells and other entitled entities to file a motion to require appellant to prove his inability to afford payment of costs. See Tex. R. Civ. P. 145(f).
B. Contest and amended affidavit
Wells filed a motion challenging appellant's claimed indigence on February 26, 2018. Appellant purportedly filed a response to Wells' contest and an amended affidavit of inability to pay costs around 2:30 a.m. on March 20, 2018, the day the motion was heard.
At the hearing, the court and parties discussed the fact that neither appellant's affidavit nor his response to Wells' contest bore a file-stamp. Counsel for appellee stated she received both documents at 2:38 a.m. on the day of the hearing. Counsel for Wells stated he had not received them by email as of 6:00 p.m. the previous evening but had not checked his email since that time. Appellant said he e-filed the affidavit and the response. The trial judge stated the court's clerk was handing her copies of both documents but did not state whether those documents were filed. As of the date of this order, we have not received a file-stamped copy of the affidavit or the response.
Appellant's amended affidavit states in relevant part:
In order to file this proceeding, I am giving the following statement under oath:
My approximate monthly income consists of the following: [no information]
1. Identity
Full Name: Ndem Burabari Oduu
. . .
Employment: N/A
2. IncomeAttached to the affidavit are:
N/A
3. Government Entitlement Income
Veteran,s [sic] Benefits $1, 594.23 now offset for debts
4. Account Financial Information
Financial institution
Sun-trust Bank [account number] Checking Current Balance $-889.23 negative
American Express Centurion Bank [account number] Checking Current Balance $1.58
AMOUNT SOURCE OR DESCRIPTION
a) Public Benefits Medicaid
b) Net Employment $500.00
c) Other Income VA HUD VASH Program $314
My approximate monthly expenses consist of the following:
a. Housing $744.00
b. Transportation $100.00
c. Food $250.00
d. Clothing $100.00
e. Utilities $178.89
g.[sic]Medical Expenses $ 0.00
h Other schools $300.00
II
The balance of any checking account I have is $ 0
The balance of any savings account or other account I have is $0
I have $ in cash 0
III
I am unable to pay the court costs and other fees. I verify that the statements made in this affidavit are true and correct.
1. a letter dated August 17, 2017 from the Texas Health and Human Services Commission stating Victoria B. Oduu receives health care
benefits from Children's Medicaid from September 1, 2017 through August 31, 2018;
2. a letter dated July 17, 2017 from Houston Housing Authority stating appellant's total contract rent was $744.00, his total resident rent was $430.00, his housing assistance payment was $314.00, and his utility reimbursement was $0.00;
3. a letter dated February 27, 2018 from the Internal Revenue Service verifying no tax return was filed using what is presumably appellant's social security number for the tax period December 2016;
4. appellant's notice of appeal in this case; and
5. a letter dated January 29, 2017 from the Department of Veterans Affairs stating appellant's monthly benefits will be retroactively reduced due to his conviction and incarceration.
C. Hearing
Appellant acknowledged his original affidavit was deficient, alleging the defects were due to his mistake and were not intentional. He contended, though, that any contest to his affidavit had to be filed within 10 days, so Wells' contest was late.
Appellant then stated:
I think definitely I've proved my case with the affidavit that I have presented here because of — because of the information that she, my ex now filed with the Department of Veterans Affairs where they have forged my signature here with an attorney, and the Veterans Affairs was paying my monthly benefits. And unfortunately when they discovered that, because at that time I wasn't entitled to that; so I have to pay those moneys back. So they upset — I lost my benefits; so I don't have any money at this time. I don't have no money. . . . [T]hey were able to provide me an apartment with the little — with whatever I can — I come up with $400 a month.
And at that time I have — I also applied for Medicaid for my daughter, which is under the commissions of my inability to afford those costs. The Department of Human Services granted — I have that document attached to that. So I believe I'm entitled to proceed without the
payment of costs. . . .The trial court then asked, "So you're saying that's all that you have; so are you resting at this time?" Appellant confirmed, "Based on, well, the evidence — well, based on what I said, yeah, I'm resting right now. I don't want to say anything."
That's all I have, Your Honor.
The court reporter did not testify or cross-examine appellant.
D. Ruling and findings of fact
The trial court denied appellant's request to proceed as indigent and made findings of fact regarding his ability to pay costs. Those findings are, in essence:
• neither appellant's original nor amended affidavit included the information required by the form statement of inability to afford payment of costs approved by the Supreme Court of Texas;
appellant did not provide any evidence regarding legal aid representation, his dependents, or income from other people in his household;
The trial court concluded by finding appellant is not legally indigent and has the present ability to afford to pay costs.
• appellant did not sufficiently detail the sources of his income or the nature and amount of his debts;
• appellant's amended affidavit contains inconsistent statements regarding his income and bank accounts; and
• appellant failed to meet his burden to prove he is unable to afford to pay the costs of his appeal.
ANALYSIS
Appellant's motion in this court is difficult to follow, but we understand him to contend the trial court abused its discretion in finding him able to pay court costs despite his receipt of need-based public assistance and his lack of income.
I. Governing law and standard of review
A litigant who seeks to proceed without payment of court costs may file a Statement of Inability to Afford Payment of Costs. Tex. R. Civ. P. 145(a). The declarant (the person making the statement) must use the form statement of inability approved by the Supreme Court of Texas, or the statement must include the information required by the court-approved form. Tex. R. Civ. P. 145(b). The declarant must provide in the statement, and, if available, in attachments to the statement, evidence of his inability to afford costs. Tex. R. Civ. P. 145(e). Examples of such evidence include proof that the declarant: (1) receives need-based governmental entitlement benefits, (2) is being represented for free by a legal-aid lawyer, (3) applied for, qualifies for, but was denied such representation, or (4) does not have funds to afford payment of costs. See id.
The statement of inability to afford payment of costs approved by the Supreme Court of Texas asks for the following information:
1. the names, ages, and relationships of the declarant's dependents;
2. whether the declarant is being represented by a legal aid provider or applied for and qualified for but was denied such representation;
3. whether the declarant receives needs-based public benefits, including food stamps, public housing, and Medicaid;
4. the declarant's monthly income and income sources, including wages, unemployment benefits, public benefits, income from other people in the declarant's household, retirement accounts, social security, child support, and military housing;
5. the value of the declarant's property, including cash, bank accounts, vehicles, jewelry, stocks, and real property;
6. the declarant's monthly expenses, including housing, food, utilities,
clothing, medical expenses, insurance, school and child care, transportation, child support, and debt payments;Supreme Court of Texas, Misc. Docket No. 16-9122 (order of Aug. 31, 2016, eff. Sept. 1, 2016).
7. the nature and amount of any debts; and
8. a declaration under penalty of perjury that the information provided is true and correct and that the declarant cannot afford to pay court costs or cannot afford to pay an appeal bond.
A clerk, court reporter, other party, attorney ad litem for a parent in certain cases, or the court itself may move to require the declarant to prove his inability to pay costs. See Tex. R. Civ. P. 145(f). A motion by the clerk, other party, or attorney ad litem must be based on sworn evidence that the statement was materially false when made or is no longer true in all respects. See Tex. R. Civ. P. 145(f)(1), (2). However, a motion by the court reporter requires no such evidence. Tex. R. Civ. P. 145(f)(3). Unlike previous versions of the indigence rules, Rule 145 does not impose a deadline for a challenge to be filed. See Koehne v. Koehne, No. 01-17-00016-CV, 2017 WL 2375789, at *1 (Tex. App.—Houston [1st Dist.] June 1, 2017, order) (per curiam), disp. on merits, 2017 WL 4171897 (Tex. App.—Houston [1st Dist.] Sept. 21, 2017, no pet.) (mem. op.) (per curiam).
The declarant may not be required to pay costs without an oral evidentiary hearing of which the declarant is given at least 10 days' notice. Tex. R. Civ. P. 145(f)(5). The declarant bears the burden of proof to show his inability to afford payment of costs. In re R.J., No. 02-16-00445-CV, 2017 WL 2178879, at *1 (Tex. App.—Fort Worth May 18, 2017, order) (per curiam). An order requiring the declarant to pay costs must be supported by detailed findings that the declarant can afford to pay costs. Tex. R. Civ. P. 145(f)(6). "The issue is not merely whether a person can pay costs, but whether the person can afford to pay costs. A person may have sufficient cash on hand to pay filing fees, but the person cannot afford to pay the fees if paying them would preclude the person from paying for basic essentials, like housing or food." Tex. R. Civ. P. 145 2016 cmt.
If the trial court requires the declarant to pay costs, the declarant may challenge the order by filing a motion in the court of appeals. Tex. R. Civ. P. 145(g)(1). The court of appeals reviews the trial court's order for an abuse of discretion. See Koehne, 2017 WL 2375789, at *2. A trial court abuses its discretion only when its ruling is "so arbitrary and unreasonable as to be clearly wrong." Id. (quoting Arevalo v. Millan, 983 S.W.2d 803, 804 (Tex. App.—Houston [1st Dist.] 1998, no pet.)). Although a trial court may evaluate the defendant's credibility, the court may not disregard unrebutted evidence establishing the declarant's inability to afford to pay court costs. See id.
II. Application
Appellant's amended affidavit of indigence showed he receives some public benefits, including housing assistance from the Veterans Administration and Medicaid for his daughter. The affidavit also lists appellant's monthly expenses.
However, the affidavit is deficient because it: (1) fails to provide all of the information required by the form statement of inability to afford payment of costs approved by the Supreme Court of Texas; (2) lacks sufficient detail; and (3) is internally inconsistent.
• Missing required information. The affidavit does not include a list of appellant's dependents or information about whether appellant sought representation by a legal aid provider.
• Insufficient detail. The affidavit states "Net Employment $500" but does not identify the source of the income. Similarly, appellant states his VA entitlement benefits are "offset for debts" but does not identify the nature or amount of the debts.
• Internally inconsistent. Early in the affidavit, appellant states "N/A" for both employment and income. He later writes "Net Employment $500." He states he has two checking accounts, one with a negative balance of nearly $900 and one with a positive balance of $1.58. On the next page, he says the balance of any checking account he has is $0.
Further, appellant did not offer any evidence of the cost of the reporter's record. He cannot show he is unable to afford to pay for the record without proof of the cost of the record. In re J.S., No. 05-17-00341-CV, 2017 WL 1455406, at *2 (Tex. App.—Dallas Apr. 20, 2017, no pet.) (mem. op.) ("Without knowing the reporter's fee, we are unable to determine what effect payment of that fee would have on Mother's ability to meet her basic needs . . . ."). In cases holding the trial court abused its discretion in requiring the declarant to pay for the reporter's record, there was evidence of the cost of the reporter's record. E.g., In re A.R.M., No. 05-17-00651, 2017 WL 2962830, at *1 (Tex. App.—Dallas July 12, 2017, no pet.) (mem. op.) (court reporter testified record would cost between $4,800 and $9,600); Hollingsworth v. Walaal Corp., No. 05-17-00555-CV, 2017 WL 2492788, at *1 (Tex. App.—Dallas June 9, 2017, no pet.) (mem. op.) (declarant testified reporter's record was estimated to cost between $9,000 and $11,000; court reporter agreed with the estimated cost).
We conclude the trial court did not abuse its discretion in finding appellant is able to pay the costs of his appeal.
CONCLUSION
We WITHDRAW our January 8, 2018 order and DENY appellant's motion challenging the trial court's order finding him not indigent.
Appellant must provide proof to this court by May 2, 2018 showing he has paid or made arrangements to pay for the clerk's record and the reporter's record.
If appellant fails to make such a showing with respect to the clerk's record, this appeal may be dismissed. See Tex. R. App. P. 35.3(a)(2), 37.3(b).
If appellant fails to make such a showing with respect to the reporter's record, we may consider and decide those issues or points that do not require a reporter's record. See Tex. App. P. 35.3(b)(3), 37.3(c).
PER CURIAM Panel consists of Justices Boyce, Donovan, and Wise