Arevalo v. Millan

ORDER EN BANC

PER CURIAM.

The appellate record in this ease costs $3,423. Appellant wants it for free, claiming she is indigent. Judge Bonnie Crane Hel-iums denied a free record. We affirm that order.

*804Appellant owns jewelry and a car admittedly worth $5,500, but she did not list either asset on her affidavit of indigency, and she did not reveal the value of the car, at $5,000 her most valuable asset, until she was cross-examined. On direct examination, she had testified the ear was two years older than it was. Also, appellant revealed for the first time on cross-examination that an $80 “monthly” vehicle maintenance expense, which she had listed on the affidavit and reaffirmed on direct examination, was a onetime-only expense. This alleged monthly expense equaled 15% of appellant’s monthly disposable income, until she abandoned it.

The question is whether the judge abused her discretion by ruling that appellant must use $3,423 of her admitted $5,500 liquid assets to pay for the record. We hold the judge did not abuse her discretion.

Mandamus or appeal?

Appellant sought a writ of mandamus in cause no. 01-97-01167-CV to get a free record in this appeal. After she filed her request for mandamus, the Texas Supreme Court decided In re Arroyo, 42 Tex.Sup.Ct.J. 64, 64-65, - S.W.2d -, -, 1998 WL 716921 (Oct. 15, 1998), which held that appeal, not mandamus, is now the sole way to review a denial of a free appellate record. The amended Rules of Appellate Procedure provide a mechanism for review “which is functionally identical to mandamus review used previously.” Id. Accordingly, instead of reviewing the indigency issue on appellant’s mandamus case, we will review the issue as a matter ancillary to appellant’s appeal. We will deny the mandamus by separate order in that case. See In re Isaura Arevalo, No. 01-97-01167-CV, 1998 WL 862495 (Tex.App.— Houston [1st Dist.], Dec. 3, 1998) (order) (unpublished).

Judge Heliums’s October 10,1997 order

Judge Heliums found that appellant had failed to disclose in her affidavit of indigency all her assets. The judge also found that appellant did not comply with Tex.R.App.P. 20.1(b)(ll), which requires appellant to “give complete information about ... whether an attorney has agreed to pay or advance court costs.”1 These findings are significant because they show the judge doubted appellant’s credibility.

Appealing as an indigent; standard of review

A party may appeal as an indigent by complying with Tex.R.App.P. 20.1(b). When, as here, the district clerk and the court reporter file a contest, the party must prove indigence. Tex.R.App.P. 20.1(g); Griffin Indus., Inc. v. Thirteenth Court of Appeals, 934 S.W.2d 349, 351 (Tex.1996); Cronen v. Smith, 812 S.W.2d 69, 70 (Tex.App.—Houston [1st Dist.] 1991, orig. proceeding). In the trial court, the test for indigency is whether a preponderance of the evidence shows the party would be unable to pay costs, “if (s)he really wanted to and made a good faith effort do so.” Allred v. Lowry, 597 S.W.2d 353, 355 (Tex.1980); Cronen, 812 S.W.2d at 70. When, as here, the trial judge sustains the contest, then we must decide whether the judge abused her discretion. Cronen, 812 S.W.2d at 70. Abuse of discretion is a heavy burden. It means that the judge acted without reference to any guiding rules or principles, that the facts and law permit only one decision and it is the opposite of the trial judge’s decision, and that the ruling is so arbitrary and unreasonable as to be clearly wrong. Cronen, 812 S.W.2d at 71.

The evidence in the trial court

Appellant’s affidavit of indigency listed the following assets and monthly expenses:

*805(1) Monthly earnings of $770 net and no property except personal effects.
(2) Monthly expenses of rent ($167.50); child support ($200); telephone ($20); utilities ($48); food and toiletries ($100); maintenance and repair of 1984 Chevy truck ($80);2 clothing, meals, and entertainment of children during visitation ($100); laundry ($20), attorney ad litem fee ($50).

The affidavit also stated that appellant had been denied a bank loan for appeal costs.3

Appellant testified her monthly net wage income was $700 to $720,4 lower than in her affidavit of indigency, and that $200 was withheld monthly for child support. She testified she had previously taken a second job to pay for car repairs, but she quit because, “I pick up the children on Friday and I return them on Sunday.”5 Appellant was in good health and left work daily at 3:30 p.m.

Appellant testified that her divorce decree awarded her a portable stereo, a portable TV, a camera, a .22 magnum rifle, a china cabinet, a bedroom set, and a 40% interest in her former husband’s retirement plan, but no benefits were yet due.6 Appellant testified that, except for the china cabinet and the bedroom set, her former husband still possessed the personal items listed above.

Appellant owned jewelry for which a pawn shop had offered $500, and she twice offered in court to sell it to pay for the record. She also owned a 1992 Toyota Supra in her name that was worth $5,000, apparently free and clear. No debt was mentioned. Within the past year, she had purchased a color TV, a VCR, and a stereo cassette player.

In summary, appellant’s affidavit of indi-geney did not reveal the existence of her most valuable property, the Toyota and the jewelry. Although she did not list that property, appellant testified to and listed under oath as a “monthly expense” an item equal to more than 15% of her monthly disposable income, and she did not reveal it as a onetime expense until she was cross-examined. Appellant never disclosed the value of her most expensive property — the $5,000 1992 Toyota — until she was cross-examined.

Abuse of discretion

Appellant admittedly could have sold the $5,000 1992 Toyota and the $500 jewelry, purchased the record for $3,423, and still had $2,077 cash remaining. Even if the judge believed appellant was telling the truth, which she had reason not to do and apparently did not do, her decision was not an abuse of discretion. The facts and the law here do not permit but one decision — in favor of appellant. See Cronen, 812 S.W.2d at 71. A judge is not required by law to find that a person holding $5,500 of reluctantly revealed liquid assets cannot afford a $3,423 record. We hold that Judge Heliums did not abuse her discretion.

The order denying a free record is affirmed.

Justice O’CONNOR, joined by Justices MIRABAL and ANDELL, dissents from this order.

. In the trial court and on appeal, appellant has been represented by a free lawyer from the University of Houston Legal Aid Clinic. At trial, the clinic paid the cost of a translator and offered to pay for examinations by a psychologist. When the court reporter and the district clerk argued in the trial court that appellant had not given complete information about whether her Legal Aid attorney had agreed to pay or advance the costs of appeal, appellant's attorney was conspicuously silent. The attorney did not seek to amend the affidavit of indigency, to testify, or to give evidence that she had not agreed to pay costs. See American Comm. Telecomm., Inc. v. Commerce North Bank, 660 S.W.2d 570, 571 (Tex.App.—San Antonio 1983, no writ) (a party may amend a defective affidavit of inability to pay costs).

. The appellant admitted when cross-examined that this was a one-time expense, not a monthly charge.

. Appellant introduced into evidence Texas Commerce Bank’s letter denying her application for a loan of $45,000, a figure unrelated to the costs in this case.

. However, appellant offered into evidence one pay record which showed that from September 8 to September 21, 1997, her gross wages were $401.46 and her deductions were $43.62. This extrapolates to a monthly gross wage of $875 less deductions of $95, leaving a net income of $780, not $700-$720 as she had testified. Appellant produced no evidence of any other period. The discrepancy was pointed out in the trial court.

. Appellant’s children live with their father. She has possession every other weekend.

. Appellant could not receive benefits until her former husband did. As of October 1997, he had 13 years, 6 months of service and would qualify for a benefit at age 60, but no evidence showed his age, whether his benefit had vested, or whether appellant had tried to sell or mortgage her interest.