In the interest of J.W. and D.S.G., minor children.
No. 00-0554.
Supreme Court of Texas.
April 5, 2001.
52 S.W.3d 730
Thе trial court terminated the parental rights of petitioners David and Susan Griffin in their children, and petitioners filed notices of appeal. They also filed affidavits of indigency, having been represented by appointed counsel in the trial court.1 The District Clerk filed contests to both affidavits and argued to the court at a hearing on the contests that the affidavits did not сontain all the information required by
(b) Contents of Affidavit. The affidavit of indigence must identify the party filing the affidavit and must state what amount of costs, if any, the party can pay. The affidavit must also contain complete information about:
(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 availаble to the party; (3) 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 to the party 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 fеe; and
(11) whether an attorney has agreed to pay or advance court costs.
Petitioners’ affidavits reflect thаt they both receive Social Security disability benefits together totaling $936 per month, and that Susan also earns $300 per month аnd receives welfare benefits of $173 per month. The affidavits state that petitioners’ shared expenses for their homе are $515 per month but do not mention other living expenses, such as food. Susan‘s affidavit states that she owes approximately $3,000. David‘s affidavit adds that he is indigent, owns no stocks or bonds, has no bank accounts, has no family from which he could borrow monеy, has no equity in his home, and cannot pay the costs of appeal or attorney fees. Susan‘s affidavit adds that she has no cash assets, has three dependents, and cannot pay the costs of appeal. The court of aрpeals stated that the cost of the clerk‘s record is $270, and that petitioners had paid the $125 docketing fee and sеveral $10 motion fees. The record reflects that the probable cost of the reporter‘s record is $15,000.
The cоurt of appeals correctly concluded that petitioners’ affidavits failed to state what amount of costs thеy could pay, as
The court of appeals does not appear to have considеred whether the trial court should have granted petitioners’ request at the hearing on the contests to amend their affidаvits or supplement them with testimony offered at that time. Before September 1, 1997, when the filing of an affidavit of inability to pay сosts was necessary to invoke the appellate court‘s jurisdiction, we held that “an appellant should be given аn opportunity to amend... an affidavit of inability before the court of appeals may dismiss the appeal.”4 We relied in part on
A judgment shall not be affirmed or reversed or an appeal dismissed for defects or irregularities in appellate procedure,
either of form or substance, without allowing a reasonable time to correct or amend such defects or irregularities....5
The successor to this rule,
A court of appeals must not affirm or reverse a judgment or dismiss an appeal for formal defects оr irregularities in appellate procedure without allowing a reasonable time to correct or amend thе defects or irregularities.6
Although an affidavit of indigence is no longer used to invoke appellate jurisdiction, it is no less essential to an appeal, for if a contest to the affidavit is sustained, the appellant must either pay for the аppellate record to be prepared and filed or suffer dismissal of the appeal.7 The opportunity to amend an affidavit is as important under the current rules as it was under the former rules.
The clerk does not argue that petitioners’ affidavits showed that they had the ability to pay appellate costs, and the trial court did not sustain the contests on that basis. Indeed, the fact that petitioners were both receiving public assistance was a prima facie showing thаt they were entitled to appeal as indigents.8 The clerk argued only that petitioners’ affidavits were incomplete, and the trial court based its ruling on that ground, denying petitioners’ motion to amend. This was contrary to