Published order issued June 1, 2017
In The
Court of Appeals
For The
First District of Texas
NO. 01-17-00016-CV
DALE PATRICK KOEHNE, Appellant
V.
KALEIGH MICHELLE KOEHNE, Appellee
On Appeal from County Court at Law
Austin County, Texas
Trial Court Cause No. 2016L-6515
ORDER
Dale Patrick Koehne appeals from an order holding him in contempt and an
order revoking suspension of commitment to county jail. Koehne’s filed his notice
of appeal on December 27, 2016. On December 28, 2016, Koehne filed a
Statement of Inability to Afford Payment of Court Costs.
Koehne subsequently filed requests for the reporter’s records of hearings
held on August 26, 2016, December 16, 2016, January 17, 2017, and January 23,
1
2017. In requests for hearing records, Koehne attached his Statement of Inability as
well as Statements of Indigence.
The court reporter filed a contest and an amended contest. Koehne filed an
answer to the contest and to the amended contest, claiming the contests were
untimely filed. A hearing was held on January 17, 2017, and the trial court signed
an order the same day sustaining the contest. On January 23, 2017, the trial court
signed an amended order, finding that Koehne had already paid for the reporter’s
record for the August 26, 2016 hearing. Another hearing was held on February 6,
2017, but the record contains no further order on Koehne’s ability to pay.
The rules regarding indigence were revised effective September 1, 2016. See
TEX. R. CIV. P. 145; TEX. R. APP. P. 20.1. Under the revised rules, an appellant no
longer files an affidavit of indigence, but instead files a Statement of Inability to
Afford Payment of Court Costs. See TEX. R. CIV. P. 145(a). A court reporter may
contest the Statement by filing a motion, but there is no deadline for the filing of
the contest. See TEX. R. CIV. P. 145(f)(1).
A party who files a statement of inability to pay court costs may be required
to prove his inability at an oral evidentiary hearing, but the party may not be
required to pay court costs unless the trial court holds an evidentiary hearing, with
proper notice given to the declarant. See TEX. R. CIV. P. 145(f)(5). If the trial court
determines that the declarant can afford to pay court costs, the trial court must
2
issue an order containing detailed findings. See TEX. R. CIV. P. 145(f)(6). Absent a
challenge, a trial court order that the declarant can afford to pay court costs also
controls the costs on appeal unless the declarant files a motion in the appellate
court alleging a material change in circumstances. See TEX. R. APP. P. 20.1(b)(3).
The declarant may challenge a ruling that the declarant can afford to pay
court costs by timely filing a motion in the appellate court. See TEX. R. CIV. P.
145(g)(1). Once an appellant appeals from a trial court’s order finding he or she
can afford to pay costs, the trial court clerk and court reporter must prepare at no
charge a record of all proceedings regarding the declarant’s claim of indigence.
TEX. R. CIV. P. 145(g)(3).
Koehne filed a timely notice of appeal from the trial court’s order, which we
construe to be a motion challenging the order under Rule 145(g)(1). Because the
trial court’s order contained no findings, we issued an order on March 7, 2017,
requesting the preparation of detailed findings as required by Rule 145(f)(6). A
supplemental clerk’s record was filed on April 5, 2017, containing the trial court’s
findings.
The following is a summary of the trial court’s findings:
1. Koehne had paid his attorney’s fees of more than $12,000;
2. Koehne’s attorney sent the court reporter a check for $930 in payment for
the August 16, 2016 hearing record;
3
3. At the time of the August 16, 2016 hearing, Koehne was employed, and
was earning approximately $2,000.00 per month in gross wages;
4. Koehne had expenses of $500, leaving $1,500, to go toward other
financial obligations;
5. Koehne also had worked for his parents and was paid cash;
6. Koehne was not working or had not sought employment from August
2016 – December 2016;
7. Koehne occasionally received payment for odd jobs at his cousin’s shop,
but he did not know the total amount his cousin had paid him;
8. Koehne has borrowed money from his parents to pay his attorneys;
9. Koehne’s truck is paid for and he may be able to get a loan using the truck
as collateral, but not from a bank;
10. The cost of the August 26, 2016 reporter’s record was $500-550; and
11. Koehne’s Statement of Inability does not meet the requirements of TEX.
R. APP. P. 20.1(b) in that is does not show his inability or ability to pay some
of the reporter’s record costs.
Based on these findings, the trial court concluded that Koehne was not
indigent for purposes of receiving a free reporter’s record. The trial court also
found Koehne had withdrawn requests for free reporter’s records of the hearings
held on August 26, 2016 and January 23, 2017 (these were withdrawn because
Koehne’s attorney had allegedly paid for these, however, our records show no
hearing record for January 23, 2017 has been filed). The records of the January 17,
2017 and February 6, 2017 hearings on the contests to Koehne’s affidavit of
indigence have also been filed. Thus, the reporter’s records that have not yet been
filed are of hearings held on December 16, 2016 and January 23, 2017.
4
We review a trial court’s order using an abuse-of-discretion standard. See
Arevalo v. Millan, 983 S.W.2d 803, 804 (Tex. App.—Houston [1st Dist.] 1998, no
pet.). In deciding whether the declarant is unable to afford to pay court costs, the
test is whether the declarant proved either that he receives public assistance, is
being assisted pro bono by counsel, or is unable to afford the payment of court
costs. See TEX. R. CIV. P. 145(e). We may find an abuse of discretion by the trial
court only if the trial court’s ruling is “so arbitrary and unreasonable as to be
clearly wrong.” Arevalo, 983 S.W.2d at 804. Although a trial court may evaluate
the declarant’s credibility, the court may not disregard evidence establishing the
declarant’s inability to afford to pay court costs, particularly when that evidence is
not rebutted. In re Sosa, 980 S.W.2d 814, 816 (Tex. App.—San Antonio 1998,
orig. proceeding).
We first address the trial court’s final finding of fact that Koehne’s
Statement of Inability does not satisfy the rules because Koehne did not state
whether he could afford to pay a portion of the costs. Neither Rule 145 of the
Texas Rules of Civil Procedure nor Rule 20.1 of the Texas Rules of Appellate
Procedure, however, require such a statement. The Statement of Inability used by
Koehne is the one approved by the Texas Supreme Court. See TEX. R. CIV. P.
145(b); TEX. R. APP. P. 20.1. This form does not ask a declarant to state what
portion of costs he or she is able to afford. Thus, the trial court abused its
5
discretion in determining that Koehne’s affidavit was deficient for not including a
statement regarding his ability to pay a portion of the costs.
Turning to the trial court’s other findings, many are expressly based on
Koehne’s financial condition in August 2016, rather than on his current financial
condition. Although some of Koehne’s financial conditions are the same, some are
not. For example, the record shows that when Koehne filed his Statement of
Inability, he was living with his parents, had been unemployed since February
2016 except for a 90-day temporary job and the occasional odd job working for his
cousin. Thus, the trial court abused its discretion in determining Koehne’s current
ability to pay costs based on his August 2016 testimony about short-term
employment that paid approximately $2,000 per month.
As for the finding that Koehne was able to borrow money, Koehne testified
that his family had loaned him money to pay his attorney’s fees but were no longer
able to loan him money, he was unable to pay his current attorney and she was now
“operating without receipt of payment.” As for the payment made by his attorney
to the court reporter, Koehne testified that he does not know the origin of those
funds, but he did not pay it. The trial court also found that Koehne could borrow
money using his truck as collateral. However, Koehne’s 2007 truck had almost
200,000 miles, was valued at $1759, and already has a lien against it. Thus, the
6
record does not support the finding that Koehne can borrow money to pay court
costs.
Additionally the record showed that Koehne had debts of approximately
$22,000 for attorney fees, unpaid medical bills (his and his children’s), and
outstanding child and spousal support. Finally, Koehne was unable to seek or
obtain employment after December 16, 2016, because he was in jail for
nonpayment of child support and had no funds for bond. Thus, his expenses exceed
his income.
The evidence shows Koehne did not have the ability to pay court costs. He
has no current income, his expenses exceed his ability to pay, he has no cash or
assets that can be sold to pay costs, he is unable to borrow money, and he is
currently in jail. Although the trial court was required to evaluate Koehne’s
credibility, it was not free to disregard the evidence of Koehne’s current financial
condition and focus instead on Koehne’s financial condition in August 2016, when
he had a short-term job and was not in jail. See Sosa, 980 S.W.2d at 816 (granting
relief because unrebutted testimony established that expenses exceeded income and
no assets were available to finance payment of costs on appeal); In re A.M., –
S.W.3d –, No. 08–16–00277–CV, 2016 WL 6835727, at * 3 (Tex. App.—El Paso
Nov. 21, 2016, no pet.) (holding trial court abused discretion in concluding
appellant could afford to pay court costs where evidence established monthly
7
expenses exceeded average monthly income); In re N.V.R., No. 06–17–00022–CV,
2017 WL 727261, at *3 (Tex. App.—Texarkana Feb. 24, 2017, no pet.) (holding
trial court abused its discretion in determining appellant could afford to pay court
costs where no evidence controverted his proof of inability). Because Koehne
presented evidence he was currently unable to afford the costs on appeal, and no
evidence rebutted this testimony regarding Koehne’s current financial condition,
the trial court’s determination that Koehne could afford to pay court costs was “so
arbitrary and unreasonable as to be clearly wrong.” Arevalo, 983 S.W.2d at 804;
Sansom v. Sprinkle, 799 S.W.2d 776, 778 (Tex. App.—Fort Worth 1990, orig.
proceeding) (requiring trial court to withdraw order sustaining contest because
appellant presented evidence supporting indigence and no evidence rebutted
appellant’s testimony). On the record before us, we find the trial court abused its
discretion in sustaining the court reporter’s contest.
We reverse the trial court’s January 17, 2017 order and we order that
Koehne may proceed with this appeal without payment of filing fees or costs for
the record.
We reinstate the appeal on the active docket and order the court reporter to
file within 30 days of the date of this order the reporter’s records of hearings held
December 16, 2016, and January 23, 2017. Appellant’s brief will be due 30 days
after these reporter’s records are filed.
8
It is so ORDERED.
PER CURIAM
Panel consists of Justices Higley, Bland, and Brown.
Publish.
9