COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
MEMORANDUM ORDER
Appellate case name: In the Interest of J.M.H., a child
Appellate case number: 01-12-00793-CV
Trial court case number: 2011-67740
Trial court: 309th District Court of Harris County
Appellant has filed a verified motion “Motion for Out of Time Challenge the Trial
Court’s Order Sustaining Contest of Appellant’s Indigency,” which we construe as a verified
motion for extension of time under Texas Rule of Appellate Procedure 10.5(b). See TEX. R. APP.
P. 20.1(j)(2). In the motion, appellant swears under penalty of perjury that he did not receive
notice of the trial court’s September 4, 2012 order sustaining the district clerk’s contest to his
affidavit of indigence until he received our November 27, 2012 order, and challenges the trial
court order sustaining the contest.
We GRANT appellant’s motion to extend the time to file his motion challenging the trial
court’s order sustaining the contest to his affidavit of indigence and will review the trial court’s
order sustaining the contest. We review the trial court’s order under an abuse of discretion
standard. White v. Bayless, 40 S.W.3d 574, 576 (Tex. App.—San Antonio 2001, pet. denied).
The trial court abuses its discretion if it acts without reference to any guiding rules or principles
or in an arbitrary or unreasonable manner. Id.
The reporter’s record of the indigence hearing reflects that the trial court sustained the
contest to appellant’s affidavit of indigence because appellant failed to appear at the hearing.
However, because appellant was incarcerated at the time of the hearing, “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.” TEX. R. APP. P. 20.1(g)(1). The record
reflects that the trial court failed to consider the affidavit as evidence, as required by Texas Rule
of Appellate Procedure 20.1(g)(1), and therefore abused its discretion. See White, 40 S.W.3d at
576.
In his affidavit, appellant addresses various factors required by Texas Rule of Appellate
Procedure 20.1(b). TEX. R. APP. P. 20.1(b). Appellant avers, among other things, that he is an
inmate, has no source of income, has no spousal income, owns no property or assets, and does
not have sufficient resources to prosecute the appeal. Because this information is sufficient “to
prove by a preponderance of evidence that [appellant] is unable to pay costs on appeal, the
affidavit is sufficient.” In re C.H.C., 331 S.W.3d 426, 429 (Tex. 2011).
Accordingly, we GRANT appellant’s motion challenging the trial court’s order
sustaining the contest to appellant’s affidavit of indigence.
The Clerk of this Court is ORDERED to make an entry in this Court’s records that
appellant is indigent and is allowed to proceed on appeal without advance payment of costs.
It is further ORDERED that the District Clerk file with this Court, within 30 days of the
date of this order and at no cost to appellant, a clerk’s record containing the items specified in
Texas Rule of Appellate Procedure 34.5(a). See TEX. R. APP. P. 20.1(i)(4). The District Clerk is
also ORDERED to send a copy of the clerk’s record to appellant at the same time that the record
is transmitted to this Court. See id.
It is further ORDERED that Court Reporter file with this Court, within 30 days of the
date of this order and at no cost to appellant, the reporter’s record. See id. The Court Reporter is
also ORDERED to send a copy of the reporter’s record to appellant at the same time that the
record is transmitted to this Court. See id.
Appellant’s brief is ORDERED filed with this Court within 30 days of the date the
complete record is filed in this Court. Appellee’s brief must be filed within 30 days of the date
appellant’s brief is filed.
All other pending motions are dismissed as moot.
It is so ORDERED.
Judge’s signature: /s/ Justice Rebeca Huddle
Acting individually Acting for the Court
Date: January 7, 2013