Lead Opinion
delivered the opinion of the Court,
Texas Rule of Appellate Procedure 20.1 governs the procedures to establish an appellant’s indigence. The rule enumerates eleven items of financial information that the affidavit of indigence must contain, Tex.R.App. P. 20.1(b), and also provides that if no contest to the affidavit is filed, “no hearing will be conducted, the affidavit’s allegations will be deemed true, and the party will be allowed to proceed without advance payment of costs,” Tex.R.App. P. 20.1(f). We must decide whether the appeal of a party asserting indigence may proceed when the affidavit lacks complete information on all of the items enumerated in subsection (b) but no contest to the affidavit is filed. We hold that it may. Accordingly, we reverse the court of appeals’ judgment of dismissal and remand the case to that court for consideration of the petitioner’s appeal.
Lawrence Higgins, a pro se inmate, timely appealed the trial court’s dismissal of his civil suit for want of prosecution but failed to either pay the fifing fee or file an affidavit of indigence. When the court of appeals requested payment of the fifing fee within ten days, Higgins filed an affidavit of indigence. Because Higgins failed to file the affidavit with his appeal as Texas Rule of Appellate Procedure 20.1(c)(1) provides, and because the affidavit failed to fully comply with Rule 20.1(b), the court dismissed Higgins’s appeal. Higgins v. Randall County Sheriffs Office,
After our decision, by letter dated July 18, 2006, the court of appeals directed Higgins to file, by July 27, 2006, a written response justifying the late fifing of his
I, Lawrence Daniel Higgins, hereby swear that I am unable to pay any court costs in court of appeals No. 07-05-00004-CV. I am incarcerated and do not receive any monies from anywhere. I have no money at this time nor do I expect any money in the immediate future. I have attached a copy of the last trust fund account statement that I received which shows my balance to be $00.03. Please allow my appeal to proceed in forma pauperis since I am unable to pay the costs.
Higgins contends that under prison rules governing access to the law library, it was impossible for him to access the appellate rules and ascertain Rule 20.1’s requirements in time to comply with the court’s July 27th deadline. No contest was filed to Higgins’s affidavit. The court of appeals dismissed Higgins’s appeal for failure to comply with Rule 20.1(b). No. 07-05-0004-CV,
The concept that courts should be open to all, including those who cannot afford the costs of admission, is firmly embedded in Texas jurisprudence. See, e.g., Tex. Const. art. I, § 13; Griffin Indus., Inc. v. Thirteenth Court of Appeals,
The method of ensuring fairness, permitting interested parties to contest the claim of indigence, has also been in place for more than a century. Act of Apr. 14, 1879, 16th Leg., R.S., ch. 81, § 1, art. 1401, 1879 Tex. Gen. Laws 90 (amending Act of May 3,1871,12th Leg., R. S., ch. 71, §§ 1-2, 1871 Tex. Gen. Laws 74); Tex.R.App. P. 20.1(e). If the affidavit is contested, the burden is on the applicant to prove indigence by a preponderance of the evidence. Tex.R.App. P. 20.1(g); Pinchback,
(1) the nature and amount of the party’s current employment income, government-entitlement income, and other income;
(2) the income of the party’s spouse and whether that income is available to the party;
(8)real and personal property the party owns;
(4)cash the party holds and amounts on deposit that the party may withdraw;
(5)the party’s other assets;
(6)the number and relationship of any dependents;
(7)the nature and amount of the party’s debts;
(8)the nature and amount of the party’s monthly expenses;
(9)the party’s ability to obtain a loan for court costs;
(10) whether an attorney is providing free legal services to the party without a contingent fee; and
(11) whether an attorney has agreed to pay or advance court costs.
Tex.R.App. P. 20.1(b). Although the rule was revised in 1997 to include these enumerated items, such information was already considered by the courts in determining whether, “from the record as a whole, it really appears that a party is unable to pay the costs.” Pinchback,
The financial information described in Rule 20.1(b) is virtually the same information that Texas Rule of Civil Procedure 145 requires to demonstrate indigence in the underlying proceedings before the trial court. Tex.R. Crv. P. 145(b). Unlike in federal court,
On appeal, Higgins’s affidavit did not specifically discuss all of the items enumerated in Rule 20.1(b). However, Higgins did clearly attest that he had no cur
If the affidavit of indigence is filed in an appellate court and a contest is filed, the court may:
(1) conduct a hearing and decide the contest;
(2)decide the contest based on the affidavit and any other timely filed documents;
(3) request the written submission of additional evidence and, without conducting a hearing, decide the contest based on the evidence; or
(4)refer the matter to the trial court with instructions to hear evidence and grant the appropriate relief.
Tex.R.App. P. 20.1(h) (emphasis added). If no contest is filed, subsection (f) provides that “no hearing will be conducted, the affidavit’s allegations will be deemed true, and the party will be allowed to proceed without advance payment of costs.” Tex. R.App. P. 20.1(f).
The purpose of Rule 20.1 is to permit parties to proceed without paying filing fees if they are unable to do so, and we have long interpreted the Rules of Appellate Procedure liberally in favor of preserving appellate rights. See Verburgt v. Dorner,
Once again, “[w]e decline to elevate form over substance, as the dissenters would,” Verburgt,
Higgins’s affidavit adequately explained that he is unable to pay the required filing fee and, as no challenge was made to his assertion of indigence, Higgins is entitled to proceed without advance payment of costs. Accordingly, without hearing oral argument, we grant the petition for review, reverse the court of appeals’ judgment, and remand Higgins’s appeal to that court for further proceedings consistent with this opinion. See Tex.R.App. P. 59.1.
Notes
. In federal court, an indigent party may rely upon the affidavit filed in the trial court and need not file a second affidavit on appeal. 28 U.S.C. § 1915(a). The Federal Rules of Civil Procedure contain a form that indigent parties may complete to satisfy the indigence requirements. See Fed.R.Civ.P. form 4.
. Rule 145 was amended in 2005 to prohibit contests to affidavits of indigence that are accompanied by an IOLTA certificate indicating that the party has passed the rigorous screening process for beneficiaries of IOLTA-funded programs. See Tex.R. Civ. P. 145(c)-(d). The amendment’s purpose was to eliminate frivolous challenges to a party’s indigence, thereby promoting “two important principles of our judicial system — conservation of judicial resources and increased access to justice for the poor.” Chief Justice Wallace B. Jefferson, Access to Justice, 70 Tex. B.J. 687, 687 (2007). Our proposed 2008 rule changes extend the IOLTA certificate rule to appellate filings. See Court Orders, 71 Tex. BJ. 286, 289-90 (2008).
. Respondent Randall County Sheriff's Office elected not to file either a response to Higgins’s petition for review or a brief on the merits in this Court.
Dissenting Opinion
joined by Justice WAINWRIGHT and Justice WILLETT, dissenting.
The Texas Rules of Appellate Procedure require a party filing an appeal to pay a filing fee with the appellate court. Tex. R.App. P. 5. Failure to pay the filing fee may result in dismissal of the appeal. Id. (“The appellate court may enforce this rule by any order that is just.”); see also id. 25.1(b), 42.3. But the rules also provide that an indigent appellant may be excused from paying the filing fee if he demonstrates by affidavit his inability to pay costs. See id. 20.1. Rule 20.1(b) states that the affidavit “must” contain “complete information” concerning eleven specific categories of information regarding the af-fiant’s financial condition. Id. 20.1(b). The question presented here is whether, in the case of an affidavit violating Texas Rule of Appellate Procedure 20.1(b), Rule 20.1(f)
The Court today concludes that it does, holding that when no contest is filed, any affidavit purporting to invoke indigent status is sufficient to avoid dismissal, no matter how deficient. I respectfully dissent because Rule 20.1 properly places the burden of proving indigence entirely on the party seeking that status and makes clear what that party must do to establish his inability to pay costs.
Rule 20.1(f) does not create an exception to the court’s power to dismiss an appeal when the affidavit violates Rule 20.1(b). Rule 20.1 contains three equally mandatory requirements, none less compulsory than another:
(a) Establishing Indigence. A party who cannot pay the costs in an appellate court may proceed without advance payment of costs if:
*690 (1) the party files an affidavit of indigence in compliance with this rule;
(2) the claim of indigence is not contested or, if contested, the contest is not sustained by written order; and
(3) the party timely files a notice of appeal.
Id. 20.1(a). The absence of an authorized contest alleviates only the (a)(2) burden of proving the affidavit’s allegation that the affiant lacks the actual ability to pay. Id. 20.1(a)(2), (f). Because the (a)(1) and (a)(3) requirements stand independently, affiants must always “file in compliance” with each component of Rule 20.1 and must always meet the deadline for filing a notice of appeal. Unlike (a)(2), neither (a)(1) nor (a)(3) contain any recognition of (f), and that difference must be given meaning. The absence of any language recognizing (f) in (a)(1) and (a)(3) means that (f) cannot dispense with those two requirements. It is unimaginable that the lack of a contest would absolve a petitioner’s failure to comply with appellate deadlines, as required by (a)(3), yet — without any basis in the language of the Rule — the Court somehow concludes that (a)(1) is subject to different treatment.
Rule 20.1(f) has nothing to do with an appellate court’s power to dismiss; it is about proof. Rule 20.1(g) provides that “[i]f a contest is filed, the party who filed the affidavit of indigence must prove the affidavit’s allegations.” Id. 20.1(g) (emphasis added); see also id. 20.1(h)-(i) (hearing procedures). Rule 20.1(f) “deem[s]” allegations “true” if no contest is filed. Id. 20.1(f). But an incomplete affidavit constitutes a defect regardless of whether its allegations are proven in a hearing under (g) or “deemed true” by operation of (f). Id. Because missing allegations cannot be deemed true, an incomplete affidavit violates the “complete information” requirement, id. 20.1(b), and the requirement of filing “in compliance with this rule,” id. 20.1(a)(1), justifying dismissal of the appeal.
We recognized this in Higgins v. Randall County Sheriffs Office,
The Court says that “[t]he method of ensuring fairness, permitting interested parties to contest the claim of indigence, has also been in place for more than a century,” implying that the Court’s holding is in accord with our historical practice.
In its interpretation of Rule 20.1(b), the Court converts mandatory terms into permissive suggestions without justification. According to the Court, “[depending upon the circumstances, certain types of financial information may be relevant and helpful to a court when evaluating a contested claim of indigence, including the following items described in Rule 20.1(b)-”
As the Court endorses Higgins’s conclu-sory assertions of his inability to pay costs, id. at 689, it fails to recognize the critical omissions in his affidavit. Higgins’s affidavit says nothing about his spouse’s income, nothing about real or personal property, nothing about other assets, nothing about defendants, nothing about debts, nothing about monthly expenses, nothing about the ability to obtain a loan, and nothing about an attorney. See Tex.R.App. P. 20.1(b)(2), (b)(3), (b)(5)-(ll). Yet under the Court’s rule, Higgins could have three yachts, a millionaire spouse, and two parents who would gladly loan him the money, while still proceeding as an indigent. Rule 20.1(b) stands for the proposition that an accurate indigence inquiry always requires
The Court’s decision today changes the balance struck by Rule 20.1 and departs from the Rule’s clear mandates. We ought not overrule Higgins and Hood less than two years after their issuance. I would hold that the court of appeals did not abuse its discretion by dismissing this appeal because Higgins’s affidavit of indigence was defective on its face, and because Higgins was given a reasonable opportunity to correct his affidavit of indigence and failed to do so.
. “Unless a contest is timely filed, no hearing will be conducted, the affidavit’s allegations will be deemed true, and the party will be allowed to proceed without advance payment of costs.” TexR.App. P. 20.1(f).
. Contrary to the Court’s suggestion, whether or not “it appears from the record that the trial court was satisfied that Higgins was indeed indigent,”
. The Court suggests that before the adoption of Rule 20.1(b) and its requirement that affi-ants provide eleven specific pieces of information, “such information was already considered by the courts” in determining indigence.
. I agree with the Court that we ought not "elevate form over substance,”
. Without explanation, the Court today approves an affidavit of indigence filed in the wrong court. See Tex.R.App. P. 20.1(c)(l)-(2) (affidavits of indigence for appeals must be filed in the trial court). Since I would hold that the violation of Rule 20.1(b) justifies the court of appeals’ dismissal, I need not address whether the previous proceedings in this matter justify this strange result. See Higgins,