Case Information

*0 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 3/12/2015 11:58:11 AM JEFFREY D. KYLE Clerk No. 03-14-00107-CV THIRD COURT OF APPEALS 3/12/2015 11:58:11 AM JEFFREY D. KYLE 03-15-00107-CV AUSTIN, TEXAS *1 ACCEPTED ^[4473091] CLERK __________________________________________________________ IN THE COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS

__________________________________________________________ SUZANNA ECKCHUM,

Appellant

v. THE STATE OF TEXAS FOR THE PROTECTION OF HAL KETCHUM, Appellee

__________________________________________________________ On Appeal from the County Court at Law No. 2 of Comal County, Texas Cause No. C2014-1690C

Honorable Charles Stephens, Judge Presiding __________________________________________________________ STATE’S RESPONSE TO APPELLANT’S MOTION TO CHALLENGE TRIAL COURT ORDER SUSTAINING CONTEST TO APPELLANT’S AFFIDAVIT OF INDIGENCY __________________________________________________________ Jennifer Tharp Criminal District Attorney By Joshua D. Presley SBN: 24088254 Assistant District Attorney 150 N. Seguin Avenue, Suite #307 (830) 221-1300 Fax (830) 608-2008 New Braunfels, Texas 78130 E-mail: preslj@co.comal.tx.us Attorney for the State *2 TO THE HONORABLE JUSTICES OF SAID COURT :

COMES NOW THE STATE OF TEXAS, by and through its Assistant District Attorney, and files this its Response to Appellant’s Motion in the above-

captioned cause. The State asks that the Court deny Appellant’s Motion, and would

show the following:

Statement of Facts On January 22, 2015, the trial court entered a Stalking Protective Order against Appellant (C.R. at 18-21). Appellant subsequently filed a form Affidavit of

Inability to Pay Court Costs on February 12, 2015 ( id . at 22). She left significant

portions of that Affidavit blank, and never swore that she had “no property of any

value” ( id . at 22-23). Court Reporter Dana Dance timely filed her contest on

February 23, 2015 (2nd Supp. C.R. at 7). In it, Ms. Dance observed that Appellant

had failed to comply with the requirements of Texas Rule of Appellate Procedure

20.1(b), by failing to include complete information about her income, personal

property and cash ( id . at 7-8). Counsel for the court reporter informed the trial

court at the February 28 th hearing that he had emailed the contest and the notice of

the hearing to Appellant’s email address, which was listed on her affidavit (R.R. at

3). After the trial court sustained the contest, Appellant filed an unverified,

unsworn Motion to Reconsider on March 5 th (2nd Supp. C.R. at 13). Appellant

then filed the instant Motion with this Court on March 6 th .

I. Standard of Review An appellate Court will “review rulings on a request to proceed as indigent for abuse of discretion.” Donalson v. Barr , 86 S.W.3d 718, 719 (Tex. App.—

Houston [1st Dist.] 2002, no pet.). Courts will not reverse a trial court’s ruling

sustaining a contest if the trial court reached the right result, even if it did so for the

wrong reasons. Id. at 720.

II. Appellant’s Bare “Pauper’s Affidavit” Is Insufficient to Invoke Texas Rule

of Appellate Procedure 20.1 “[T]he fundamental requirement for asserting indigence has remained the same: the applicant must declare to the court, by affidavit, an inability to pay any,

or the ability to pay only some, of the costs of appeal.” Higgins v. Randall County

Sheriff's Office , 257 S.W.3d 684, 686 (Tex. 2008). Appellant has filed a form

Affidavit of Inability to Pay Court Costs instead of an Affidavit of Indigency

complying with the Texas Rules of Appellate Procedure ( see C.R. at 22). Not only

has Appellant failed to include the additional required information for an appellate

affidavit, nowhere in her form affidavit or in her own hand does Appellant declare

her inability to pay the costs of the appeal. Likewise, the Appellant did not request

through the form language or in her own writing that the trial court allow

Appellant to proceed with the appeal without the advance payment of costs ( see id .

at 22-23). Courts generally cannot grant relief which a party has not requested.

Mauldin v. MBNA Am. Bank, N.A. , 2-07-208-CV, 2008 WL 4779614, at *4 (Tex.

App.—Fort Worth Oct. 30, 2008, no pet.) (mem. op., not designated for

publication) (citing Stevens v. Nat’l Educ. Ctrs., Inc. , 11 S.W.3d 185, 186 (Tex.

2000).

This Court has apparently not decided whether a “pauper’s affidavit” substantively suffices to invoke Texas Rule of Appellate Procedure 20.1. See

Houston v. Ally Fin., Inc. , 03-14-00342-CV, 2014 WL 4536624, at *1 (Tex.

App.—Austin Sept. 8, 2014, no pet.) (mem. op., not designated for publication).

Where the Appellant has filed such an affidavit which completely omits statutorily-

required information (discussed infra ), does not declare her inability to pay costs

on appeal, and does not even request relief from or make any reference to the

advance costs of the appeal, this Court should find Appellant’s bare “pauper’s

affidavit” without more, to be insufficient to invoke Rule 20.1.

III. Appellant Failed to Include Statutorily-Required Information in Her Affidavit of Indigence

In the alternative, in the event the Court finds the bare “Pauper’s Affidavit” sufficient to invoke Texas Rule of Appellate Procedure 20.1, Appellant’s affidavit

is insufficient under the express terms of that Rule. In order to proceed without the

advance payment of costs, an appellant must meet several requirements:

[a] party who cannot pay the costs in an appellate court may proceed without advance payment of costs if:

(A) the party files an affidavit of indigence in compliance with this rule ;

(B) the claim of indigence is not contestable, is not contested, or, if contested, the contest is not sustained by written order; and

(C) the party timely files a notice of appeal.

Tex. R. App. P. 20.1(a)(2) (West, Westlaw through 2013 Sess.) (emphasis added).

The rule further imposes mandatory requirements for the affidavit itself:

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 :

... (2) the income of the party’s spouse and whether that income is available 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 ;

... (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;

(11) whether an attorney has agreed to pay or advance court costs; and (12) if applicable, the party’s lack of the skill and access to equipment necessary to prepare the appendix, as required by Rule 38.5(d).

Tex. R. App. P. 20.1(b) (emphasis added).

Appellant’s affidavit filed with the trial court does not appear to contain any of the above-listed mandatory information ( see C.R. at 22-23). This is despite the

fact that there were spaces in the form affidavit for at least some of the

aforementioned items of information, which the Appellant seems to have ignored.

( see id . at 23, § 6). Appellant claims in her motion that she left these spaces blank

“because she has none of these items.” Appellant’s Motion at 5. However, the rule

required Appellant to submit complete information in the form of an affidavit to

the trial court. See Tex. R. App. P. 20.1(b). Notably, Appellant answered several

other questions with a “0” to indicate she did not have various items in question,

while glaringly omitting any information from the section related to her cash, bank

accounts, vehicles, real and personal property (C.R. at 23). Even now, the affidavit

attached to Appellant’s motion – which was not subject to cross-examination

following the Reporter’s contest or submitted to the trial court prior to its order –

fails to state what cash Appellant has on hand. Affidavit Attached to Motion at 1-2;

see In re C.H.C. , 331 S.W.3d 426, 428, 430 (Tex. 2011) (where that appellant filed

an amended affidavit in the trial court - prior to the order - which was not

contested). ^[1] It is also noteworthy that the trial court was aware Appellant clearly

*7 had the funds necessary to move several times – to Austin, Nashville, and

Wimberley – in the course of following the Applicant (C.R. at 8-9). See Higgens v.

Randall County Sheriff’s Office , 257 S.W.3d 684, 692 (Tex. 2008) (Green, J.,

dissenting) (“[I]f the courts allow the privilege granted [by the indigent cost rules]

to be abused by those who, in fact, ought to pay, this may lead to the abolition of

the exemption.”) (citing Pinchback v. Hockless , 164 S.W.2d 19, 20 (1942)).

Appellant cites several cases in attempting to argue she was not required to address every factor in Rule 20.1(b), including Moreno v. Perez . Appellant’s

Motion at 5. Appellant’s cited cases are readily distinguishable. In Moreno , the

contest did not challenge any of the particulars in that appellant’s affidavit. Moreno

v. Perez , 363 S.W.3d 725, 743 (Tex. App.—Houston [1st Dist.] 2011, no pet.).

Additionally, at a hearing on the appellant’s affidavit , the appellant presented

evidence of the Rule 20.1(b) factors. Id . at 743-44. Her attorney further testified

that she was IOLTA eligible, a fact the appellate court found particularly

significant. Id . at 744 (“Ignoring the significance of the testimony regarding

[appellant’s] IOLTA eligibility, however, would elevate form over substance—

something the supreme court has admonished is particularly inappropriate when

assessing indigence.”); see also Tex. R. App. P. 20.1(a)(1) (affidavits accompanied

by IOLTA certificates may not be contested). Moreno cited Higgens for the

attached affidavit by March 13, 2015, and request that the Clerk’s Office forward this contest to

the Court in a supplemental record.

proposition that an affidavit need not specifically address all the items enumerated

in Rule 20.1(b). Id . at 742.

However, the holding in Higgins was in the limited context of uncontested affidavits of indigence. See 257 S.W.3d at 686 (where the Court expressly

“consider[ed] the effect of incomplete compliance with Rule 20.1(b) when an

affidavit of indigence is uncontested.”). The Court repeatedly stressed the fact that

no contest was filed. See, e.g., id . (“No contest was filed to [appellant’s]

affidavit.”), id . at 688 (“Importantly, neither the clerk, the court reporter, nor any

party challenged [appellant’s] claim of indigence by filing a contest to his affidavit,

as subsection (e) specifically allows.”); see also Tex. R. App. P. 20.1(f) (where no

contest is filed, “no hearing will be conducted, the affidavits allegations will be

deemed true, and the party will be allowed to proceed without advance payment of

costs.”); but see Tex. R. App. P. 20.1(g) (“If a contest is filed, the party who filed

the affidavit of indigence must prove the affidavit’s allegations.”). The fact that the

appellant’s affidavit was uncontested – especially in light of Rule 20.1(f) – was

key to the Court’s ultimate holding: “[the appellant’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 , [the appellant] is entitled to proceed without

advance payment of costs.” Higgins , 257 S.W.3d at 689 (emphasis added); see also

id . at 688. ^[2]

Appellant’s allegations in her contested affidavit may not be deemed true under Rule 20.1(f), nor may she be “allowed to proceed without advice payment of

costs” under that rule. Furthermore, Appellant did not prove the allegations in her

contested affidavit as required by Rule 20.1(g). Accordingly, in light of the

express, mandatory requirements of Rule 20.1(b) – and in light of Appellant’s

failure to correct all of the defects in the affidavit – the trial court’s ruling on the

timely contest to the affidavit should be upheld.

IV. Appellant Has Not Rebutted the Presumption of Receipt of Electronic Service and the Trial Court Could Shorten the Notice for the Hearing Texas Rule of Civil Procedure 21a now provides for electronic service, and states that service is complete on transmission of the document to the serving

party’s electronic service provider. Tex. R. Civ. P. 21a(a), (b)(3). Appellant

acknowledges a rebuttable presumption of receipt arises when a notice is properly

addressed and mailed. Appellant’s Motion at 7. This rebuttable presumption should

likewise exist for emailed notices. See, e.g., American Boat Co., Inc. v. Unknown

Sunken Barge , 418 F.3d 910, 914 (8th Cir. 2005) (“a presumption of delivery

*10 should apply to e-mails. ‘A jury is permitted to infer that information sent via a

reliable means-such as the postal service or a telegram-was received.’ Kennell v.

Gates, 215 F.3d 825, 829 (8th Cir.2000). We have held that there is ‘no principled

reason why a jury would not be able to make the same inference regarding other

forms of communication—such as facsimiles, electronic mail, and in-house

computer message systems—provided they are accepted as generally reliable and

that the particular message was properly dispatched.’”); Abdullah v. Am. Exp. Co. ,

3:12-CV-1037-J-34MCR, 2012 WL 6867675, at *5 (M.D. Fla. Dec. 19, 2012),

report and recommendation adopted, 3:12-CV-1037-J-34MCR, 2013 WL 173225

(M.D. Fla. Jan. 16, 2013) (“While this case deals with electronic mail rather than

mail sent through the U.S. Postal System, the undersigned sees no reason why the

same presumption of delivery would not be applicable.”).

In addition to the certificate of service, at the hearing on the contest, counsel for the court reporter informed the trial court that he had emailed the contest and

the notice of the hearing to Appellant at the address Appellant listed on the

affidavit (R.R. at 3). This was in addition to sending the notice through the postal

service ( id. ). Because counsel sent the email notice to Appellant at the address she

herself provided, a rebuttable presumption should arise that she received said

notice. Furthermore, while Appellant claims in her motion that she had “no notice”

until after the hearing, the motion itself is not sworn or verified. Appellant’s

Motion at 7. In the affidavit attached to Appellant’s Motion, Appellant never

swears she had no notice of the hearing; she refers only to the first-class and

certified-mail notices, and makes no mention whatsoever of the email notice.

Application Attached to Appellant’s Motion at 1. Appellant never claims in the

affidavit to have had no notice until after the hearing. Id . Even if she had, that

would not be sufficient to create a material issue of fact. See Abdullah , 2012 WL

6867675, at *5 (“the mere statement in his affidavit that he did not receive the

email… did not rise to the level necessary to rebut the presumption of receipt….”).

Appellant has failed to rebut the presumption that she received the emailed notice

and contest.

As to the general three-day notice requirement, the trial court could, in its discretion, shorten the time for notice of the hearing. Texas Rule of Civil

Procedure 21 generally requires three days’ notice of a hearing, “unless otherwise

provided by these rules or shortened by the court.” Tex. R. Civ. P. 21. Appellate

courts will review a trial court’s decision to shorten the length of notice under an

abuse-of-discretion standard. In re C.S. , 264 S.W.3d 864, 871 (Tex. App.—Waco

2008, no pet.).

In the Waco court of appeals case In re C.S. , the appellees had filed a motion to dismiss and the notice of the hearing in the trial court on August 6 th . Id . The

hearing was conducted on August 8 th over the appellant’s objection. Id . The

appellees had earlier informed the appellant they would be filing the motion,

though at the time, they told him the hearing would be on August 22 nd . Id . Even

though he would ordinarily have been entitled to six days’ notice, the court of

appeals overruled appellant’s objection to only having two days’ notice of the

hearing. Id . The court noted the appellant had yet to identify additional facts which

would have changed the outcome. Id .

In the instant case, Rule 20.1 sets relatively short deadlines, including the time to hold hearings on contests to affidavits. Tex. R. App. P. 20.1(e), (i). The

form affidavit – which Appellant partially filled out and filed on February 12 th –

explicitly informed her that “[t]he court may order you to answer questions about

your finances at a hearing. At that hearing you will have to present evidence to the

judge of your income and expenses….” (C.R. at 22). As noted supra , Appellant did

not appear to prove the allegations in her contested affidavit as required by Rule

20.1(g), and even now has not stated what amount of cash she has on hand. In any

event, the trial court could choose to disbelieve Appellant’s assertions, especially

in light of the fact that she apparently had the resources to repeatedly move – from

Austin, to Nashville, to Wimberley – in the course of following the Applicant

(C.R. at 8-9).

In the context of the sharp time constraints imposed by Rule 20.1, Appellant was aware from the notice in the form affidavit she filed on February 12 th that she

might have to appear at a hearing and prove her allegations. Appellant

presumptively received the contest and notice two days before the hearing. She

claims to have been unemployed for some time, and even if she had some other

scheduling conflict, at the very least she should have called and informed the court.

In light of the foregoing, the trial court did not abuse its discretion in shortening

the time to conduct the hearing from three days to two.

V. Remedies The Texas Supreme Court has held that courts must give an appellant a reasonable time to correct a defect in an affidavit. Higgins v. Randall Cnty.

Sheriff’s Office , 193 S.W.3d 898, 899-900 (Tex. 2006) (per curiam). In the instant

case, the Appellant submitted a Motion to Reconsider to the trial court on March 5,

2015, eight days after the February 25 th order was signed (2nd Supp. C.R. at 13; 1st

Supp. C.R. at 4). The motion was not sworn, nor did it contain an affidavit from

Appellant correcting the defects highlighted by the contest (2nd Supp. C.R. at 13).

Because Appellant did not submit such evidence to the trial court within a

reasonable amount of time – despite having time to prepare the Motion to

Reconsider – the trial court’s ruling should be sustained, Appellant’s instant

motion in this Court should be denied, and Appellant should be ordered to pay the

costs of her appeal.

In the alternative, the Court should deny the instant motion to prevent its being granted by operation of law. See Tex. R. App. P. 20.1(j)(4). The Court might

then remand the case with orders for the trial court to hear evidence on the contest

filed related to the subsequent affidavit attached to the copy of this motion

Appellant filed in the trial court on March 7, 2015. Although the State would

prefer denial of the instant motion to ensure compliance with Rule 20.1(j)(4), the

Court may also have the authority to remand the case to hear further evidence on

the contest and affidavit without ruling on the motion despite the rule. See

Houston , 2014 WL 4536624, at *1 (where this Court abated and remanded another

contest for the district court to hear evidence, though the exact procedural history

is not entirely clear).

Finally, in the event the Court decides against the outright denial of the motion or a remand of the case for further evidence, the Court may require the

Appellant to file a complete affidavit to comply with the mandatory requirements

of Texas Rule of Appellate Procedure 20.1(b). However, this alternative would

relieve Appellant of her burden to prove her allegations at a hearing, subject to

cross-examination.

VI. PRAYER

WHEREFORE, PREMISES CONSIDERED, the State respectfully prays

that Appellant’s Motion be, in all things, DENIED. The State further prays that the

trial court’s ruling be sustained and that Appellant be ordered to pay the costs of

her appeal. In the alternative, the State prays that the Motion be, in all things,

DENIED, but the cause be remanded for a hearing regarding the subsequent

contest. The State further alternatively prays that the Court remand the case to the

district court to hear additional evidence on the contest. As an alternative of last

resort, the State prays that the Court order Appellant to file an affidavit which fully

complies with Tex. R. App. P. 20.1. The State also prays for all relief, both special

and general, in law and in equity, to which it may be entitled.

Respectfully submitted, /s/ Joshua D. Presley Joshua D. Presley SBN: 24088254

preslj@co.comal.tx.us Comal Criminal District Attorney’s Office 150 N. Seguin Avenue, Suite 307 New Braunfels, Texas 78130 Ph: (830) 221-1300 / Fax: (830) 608-2008 *16 CERTIFICATE OF SERVICE I, Joshua D. Presley, Assistant District Attorney for the State of Texas, Appellee, hereby certify that a true and correct copy of this State’s Response to

Appellant’s Motion has been delivered to Appellant SUZANNA ECKCHUM’s

attorney of record in this matter:

Mysha Lubke

mysha.lubke@bakerbotts.com

98 San Jacinto Blvd., Suite 1500

Austin, TX 78701

Counsel for Appellant on Appeal

As well as to the attorney of record for Court Reporter DANA DANCE:

James S. Bettersworth

bettersworth@bettersworthlaw.com

The Bettersworth Law Firm

110 W. Faust Street

New Braunfels, TX 78130

by electronic mail service through efile.txcourts.gov to the above-listed email

addresses, this 12 th day of March, 2015.

/s/ Joshua D. Presley Joshua D. Presley

[1] Appellant filed a copy of her Motion and attached affidavit with the trial court on March 7, 2015 (2 nd Supp. C.R. at 21). Out of an abundance of caution, the State will file a contest to the

[2] Appellant also cites In re C.H.C. for the proposition that she is not required to address every factor in 20.1(b); however, that case likewise involved an affidavit of indigence which was not timely contested. 331 S.W.3d at 428.