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An affidavit of indigency must be challenged within 10 days [Jan. 28, 2011]

By Don Cruse

With today’s orders list, the Texas Supreme Court issued one per curiam opinion. The Court did not choose any new petitions for its argument calendar.

An affidavit of indigency must be challenged within 10 days

In re C.H.C., a child, No. 09-0480 (per curiam) (DDB)

Many first-time litigants are surprised to learn that the parties themselves must pay for the preparation of the transcript of trial court proceedings (the “Reporter’s Record”). After the trial proceedings conclude, a party who wishes to appeal generally must make arrangements to pay for that transcript to be sent to the court of appeals.¹

The problem for the justice system arises when the party cannot, due to financial hardship, pay. In Texas, the rules permit a party to file an “affidavit of indigency” establishing that they qualify for a free appellate record. See Tex. R. App. P. 20.

Who could object? Well, in addition to the adverse party (who might like to win without an appeal), both the court reporter and district clerk have a financial incentive to object to a private party not paying the full customary fees.

This appeal grew out of a child-custody dispute. The mother filed documents attempting to establish her indigency. She included an affidavit but no supporting exhibits; she did not, in that affidavit, walk through each of the elements discussed in Rule 20. No party filed an objection within 10 days.

Soon thereafter, the mother’s counsel withdrew. She later filed another motion about her indigency (which seemed to be asking the trial court to rule on her previous request), and when this new motion was set for a hearing, the father eventually raised objections to the affidavit.

The mother then filed a second, expanded affidavit about her indigency, attempting to address those concerns. No party objected within 10 days.

The trial court ultimately denied the mother’s request to be classified as indigent. She then sought relief from the court of appeals, which ordered the trial court to hold yet another hearing because it found the situation “unclear.”

The mother sought relief from the Texas Supreme Court. The Court now holds that the mother’s two original affidavits — neither of which was timely challenged — were good enough, even if they did not formally walk through each element in the Rule.

The Court’s opinion hedges somewhat about what is required for future affidavits. Although it says that the first affidavit “clearly indicates that [the mother] would be unable to afford the costs of appeal,” it then proceeds to say, “[e]ven if [the first] affidavit were deemed too conclusory,” the second was even more detailed. [To avoid any uncertainty, litigants will want to be as detailed as possible. That will also protect them if a contest is filed.]

The thrust of the holding, however, is plain enough. A party’s affidavit of indigency, if it is good enough to carry their burden (“preponderance of the evidence”) to establish their inability to pay, must be challenged within 10 days. If there is no timely challenge, the trial court must give it the benefit of the doubt.

1. Some purely legal disputes don’t require this reporter’s record, but anything that involves disputes over facts invariably does.

Full post as published by Supreme Court of Texas Blog on January 28, 2011 (boomark / email).