In Re CHC
331 S.W.3d 426
| Tex. | 2011Background
- Hawkins sought to appeal a trial court modification and contempt order involving C.H.C.; she filed an indigence affidavit on Oct 15, 2008 and later an amended affidavit with evidence of government assistance.
- No party timely contested Hawkins's first indigence affidavit; the trial court held the appeal indigence-deficient and dismissed the appeal.
- After counsel withdrew, Hawkins filed an amended affidavit with attachments showing public assistance; no timely contest followed.
- The court of appeals remanded to address indigence; the trial court later held another hearing and denied indigence, leading to dismissal of the appeal.
- The Texas Supreme Court ultimately held Hawkins established indigence, reversed the dismissal, and remanded for further proceedings, including consideration of appointed counsel for the suspended sentence issue.
- The Court instructed the court of appeals to accept the appeal without filing fees, prepare the record at no cost, and address the merits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Hawkins’s indigence affidavit supported a free record on appeal | Hawkins shows indigence and should have a free record | Clerk contested defects; affidavit not sufficiently detailed | Yes; Hawkins established indigence and entitlement to a free record |
| Whether lack of timely contest to the affidavit defeated indigence | No timely contest; presumption of indigence applies | Contest required to trigger a hearing; absence defeats indigence | No; absence of timely contest allowed proceeding without costs |
| Whether the suspended sentence requires appointed counsel on appeal | Appeal should include counsel for challenged sentence | Issue preserved for merits review; no ruling yet | Remand to consider the appointment of counsel before addressing merits |
Key Cases Cited
- Higgins II, 257 S.W.3d 684 (Tex. 2008) (indigence standard; absence of contest permits proceeding without costs)
- Higgins I, 193 S.W.3d 898 (Tex. 2006) (procedure for correcting defective indigence affidavits)
- Pinchback v. Hockless, 164 S.W.2d 19 (Tex. 1942) (indigence considerations and costs)
- Griffin Indus., Inc. v. Thirteenth Court of Appeals, 934 S.W.2d 349 (Tex. 1996) (public assistance as evidence of indigence; burden on opponent to rebut)