Jermaine A. Hopkins v. Marc Ott, in His Official and Personal Capacities Hubert "Art" Acevedo, in His Official and Personal Capacities Anne Morgan Jannette Goodall 98th District Court Cathy Curtis Stephen Elkins Mark Washington Joya Hayes
03-15-00606-CV
| Tex. App. | Oct 20, 2015Background
- Plaintiff/Appellant Jermaine A. Hopkins is a disabled, unmarried U.S. Army veteran receiving $1,134.71/month in VA disability benefits (70% rating) and was formerly an Austin police officer who alleges employment-related claims and sought public records.
- Hopkins filed an affidavit of inability to pay appellate costs (indigency affidavit) sworn Sept. 29 / filed Oct. 6, 2015 to perfect an appeal after adverse rulings below.
- Official court reporter Amanda Anderson filed a Contest of Affidavit of Inability to Pay Costs on Oct. 7, 2015; a hearing occurred Oct. 19, 2015 before Judge Tim Sulak.
- At the Oct. 19 hearing Hopkins testified, offered five exhibits (two later excluded), and argued his limited assets and inability to pay; Anderson objected and cross‑examined but offered no affirmative evidence under oath.
- The trial court sustained Anderson’s contest (no written order issued at the hearing) and Hopkins moves to the Third Court of Appeals seeking review, arguing the contest was overruled by operation of law for failure to timely rule and that the record supports indigence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of trial court ruling on contest | Hopkins: contest filed Oct. 7; court failed to sign timely extension or rule within 10 days, so contest overruled by operation of law and affidavit deemed true | Anderson: (implicit) contest should be adjudicated at Oct. 19 hearing and sustained | Trial court sustained Anderson’s contest at conclusion of the Oct. 19 hearing (but Hopkins contends no timely written order was entered and operation‑of‑law rule applies) |
| Sufficiency/authentication of evidence | Hopkins: he testified and authenticated exhibits; he offered evidence of VA income, assets, debts, expenses showing inability to pay | Anderson: objected to authenticity of exhibits and challenged omissions; primarily cross‑examined rather than introducing contrary evidence | Trial court sustained contest, excluding two exhibits; Hopkins argues absence of rebuttal evidence means indigence proof should prevail |
| Burden to prove indigence / good‑faith effort to pay | Hopkins: he showed no funds, no marketable assets (except older vehicle with lien), no ability to borrow, and made job‑search efforts; substantial compliance with TRCP 145 suffices | Anderson: argued Hopkins could pay or had omitted information and thus failed to show inability to pay | Trial court found for Anderson; Hopkins asks appellate court to find abuse of discretion and that record preponderates in his favor |
| Effect of docket entry vs written order | Hopkins: no written signed order was issued at hearing; docket entry is insufficient, so allegations of affidavit are deemed true | Anderson: treated the hearing result as sustaining contest | Trial court sustained contest by order (Hopkins contends written order was not timely/signed); dispute over whether operation‑of‑law reversal is required |
Key Cases Cited
- Walker v. Blue Water Garden Apts., 776 S.W.2d 578 (Tex. 1989) (pauper affidavit need only substantially comply with rules)
- Calhoon v. [unknown caption], 889 S.W.2d 257 (Tex. 1994) (failure to timely rule causes affidavit allegations to be accepted)
- Smith v. McCorkle, 895 S.W.2d 692 (Tex. 1995) (docket entry does not substitute for written order sustaining contest)
- In re G.C., 22 S.W.3d 932 (Tex. 2000) (trial court must sign extension within ten days to delay ruling timeline)
- Griffin Indus. v. Thirteenth Ct. of Appeals, 934 S.W.2d 349 (Tex. 1996) (when indigent offers some evidence, court cannot disregard it absent rebuttal)
- Montalvo v. JP Morgan Chase Bank, 375 S.W.3d 553 (Tex.App.—Houston [14th Dist.] 2012) (timeliness of hearing and ruling on contest)
- Higgins v. Randall Cty. Sheriff’s Office, 257 S.W.3d 684 (Tex. 2008) (preponderance standard for inability-to-pay findings)
- Sansom v. Sprinkle, 799 S.W.2d 776 (Tex.App.—Fort Worth 1990) (cross‑examination is no substitute for offering rebuttal evidence)