Thursday, Feb. 4, 2021 p.m. - county of... · 2021. 1. 29. · PRESENTED BY: MARY CHRISTINE REED,...

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Thursday, Feb. 4, 2021

1:15‐2:15 p.m.

A Statement of Inability to Pay

Court Costs Has Been Filed, Now

What? Texas Rule of Civil Procedure 145 Payment of Costs Not

Required was completely rewritten by the Texas Supreme

Court in 2016. This session will provide an overview of the

new rule, including the important changes that affect

district and county clerks’ procedures. It will also provide

an overview of the process to contest a Statement of

Inability to Pay Costs and who can file a contest, will cover

what information is required in a statement, will explore

who is eligible to file a statement and will address common

questions.

Mr. Pablo Javier Almaguer, Attorney, Texas RioGrande Legal Aid

(TRLA)

Almaguer is part of Texas RioGrande Legal Aidʹs senior

management. He has held several management and supervisory

positions within the organization, has litigated many bench and

jury trials, and has obtained favorable verdicts or settlements for

his clients in both state and federal courts. He has extensive

experience in the areas of employment discrimination, labor law,

domestic violence advocacy and guardianship law. In 2008

Almaguer became the first legal services attorney to serve on the

board of directors of the State Bar of Texas. In 2010 he was elected

chair of the board and served six years on the Commission for

Lawyer Discipline. In 2017 he was conferred an honorary

doctorate in education from Wheelock College for his advocacy on

behalf of women, children and families.

Ms. Mary Christine Reed, Director, TRLA

As an attorney with Texas RioGrande Legal Aid (TRLA) since

1993, Reed has assisted low‐income clients with a broad range

of legal problems, frequently focusing on issues impacting

youth and families. TRLA is a nonprofit corporation that

provides free civil and criminal legal services to the indigent

residents of Southwest Texas. Reed directs TRLA’s Texas

Foster Youth Justice Project, a special project that provides free

legal advice, assistance, guidance and representation in

enforcing foster youth rights for current and former foster

youth throughout Texas. With a long‐held interest in court

system access for low‐income Texans, Reed has addressed

issues involving Statements of Inability to Pay Costs (formerly

known as Affidavits of Indigency and Pauper’s Affidavits) in

many counties and worked with other advocates and local

officials on court access.

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A Statement of Inability To Pay Court Costs Has Been Filed, Now What?PRESENTED BY:

MARY CHRIST INE REED, TEXAS R IOGRANDE LEGAL AID (AUST IN ) , MCREED@TRLA .ORG, (512 ) 374 – 2729

PABLO ALMAGUER, TEXAS R IOGRANDE LEGAL AID (ED INBURG) , PALMAGUER@TRLA .ORG, (956 ) 393 – 6202

Texas Rule of Civil Procedure Rule 145: Payment of Costs Not RequiredA complete re‐write of Rule 145 was issued by the Texas Supreme Court and it became effective September 1, 2016

Terminology and procedures substantially changed• Not a Pauper’s Oath, not an Affidavit of Indigency• Specific processes must be followed to contest

• No court approval needed to file or proceed with the case

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Proposed Revisions: Texas Rule of Civil Procedure Rule 145On December 23, 2020, issued Preliminary Approval of Amendments to Texas Rules of Civil Procedure 145, 502.3, and 506.4 and to the Form Statement of Inability to Afford Payment of Court Costs Misc. Docket No. 20‐9154

Proposed revisions in materials and available at txcourts.gov/supreme/administrative‐orders/rules‐advisories/

Comments can be submitted to [email protected]

Final rule likely in April 2021

Presentation will note some of the proposed revisions but is based on the current Rules

Important Court Comments

Access to the civil justice system cannot be denied because a person cannot afford to pay court costs

The issue is not merely whether a person can pay costs, but whether the person can afford to pay costs

A person may have sufficient cash on hand to pay filing fees, but the person cannot afford the fees if paying them would preclude the person from paying for basic essentials, like housing or food

Costs are generally small and the expense of challenging often exceeds costs so high standard to challenge

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How the Rule WorksAn individual in the case files a completed Statement of Inability to Pay form

Can use the form Statement approved by the Supreme Court, or the Statement must include the information required by the Court‐approved form• Form on Texas Law Help

• No requirements that the version look exactly the same as the court form, including the Supreme Court of Texas seal at the top

The clerk must make the form available to all persons without charge or request

No requirement to have an affidavit of indigence, pauper’s affidavit, or IOLTA certificate or other items that were part of the old Rule or local practice

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Statement must state that declarant cannot afford to pay costsInclude details:• Dependents• Public BenefitsoCan help show indigence, but someone is not required to be on public benefits to qualify for indigence

•Monthly income of individual and dependents

• Value of property including cash, vehicles, land/houses other than homestead

oValue = amount would sell for less the amount still owed on it

• Debts•Monthly expenses

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Statement can include additional supporting facts/evidence of inability to pay costs

Free legal services

Public benefits

Individual can provide/attach any other information that the individual thinks provides evidence of the inability to pay costs

Proposed Rule revisions considers some of this evidence as prima facie evidence (sufficient to establish a fact or raise a presumption unless disproved or rebutted) of inability to afford payment of costs

Supporting facts/evidence of inability to pay costs‐free legal services eligibility

Being represented by an attorney who is providing free legal services, without contingency, through a provider funded by the Texas Access to Justice Foundation, Legal Services Corporation or nonprofit that provides civil legal services to persons living at or below 200% of the federal poverty guidelines published annually by the U.S. Department of Health and Human Services• Letter or form from program attached to Statement of Inability (sample in electronic handouts)

• Rule does NOT require specific language or form• Not the same as the IOLTA certificate under the old Rule 145

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Supporting facts/evidence of inability to pay costs‐free legal services eligibility (continued)Documentation that they sought legal assistance from a free legal services provider, were determined financially ineligible and were declined representation• Letter or certificate from provider (sample in electronic handouts)

Free legal services providers have financial eligibility guidelines and they must screen an applicant to determine they qualify as low‐income before they accept a case for representation or provide documentation that someone is eligible

Free legal service providers may have programs to secure representation for eligible clients for representation by private attorney for a significantly reduced fee paid by the legal aid provider• The fee does not include the funds to cover filing fees and other court costs• Provider can prepare letter or form to be attached to Statement

What if the Statement is completely missing information, such as income or expenses?

The only time a clerk can refuse to file a Statement is if it is not signed (made) under penalty of perjury or not sworn before a notary

If the defect or omission is material, clerk can file a motion to clarify• But the clerk must still “docket the case, issue citation and provide any other services that is ordinarily provided to an individual.”

Notify individual what needs to be corrected before you file the motion, but you still need to provide services before it is corrected• For example – “This has been filed but you need to prepare and file a new form with the details of your income and expenses by Monday or I will have to file a motion with the court to get you to do so.”

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What if clerk reviews the Statement and believes that based on the information in it, the individual has sufficient funds to pay costs?

Supreme Court of Texas guidance

The issue is not merely whether a person can pay costs, but whether the person can afford to pay costs

A person may have sufficient cash on hand to pay filing fees, but the person cannot afford the fees if paying them would preclude the person from paying for basic essentials, like housing or food

Rule comments: The expense and time to challenge a Statement is high

Considerations when determining ability to pay

Take into account household sizes and income even if expenses don’t seem to use all the income

Is it realistic to think this family really can afford the payment costs? Would paying court costs cause the family to not be able to pay basic needs now or in the coming months?

Household income/expenses for low‐income families vary each month• Variation of work schedule, car repair, medical emergencies, back to school clothes or new shoes are needed, higher utility bills during extreme heat/cold

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Considerations when determining ability to pay (Continued)

Functioning reliable car needed to work• Has amount owed on assets been taken into consideration when considering the value?

Public Benefits eligibility strong indication of inability to pay but: • Not all low‐income people qualify for public benefits—complex rules• Eligibility is often lost with slight increases in income• Barriers to accessing benefits

Individual might have cash to pay fee today, but then won’t have cash to pay rent later in the month

Parties can’t be required to sell or secure a loan against essential assets such as homestead or car or borrow funds from their retirement account• Doing so pushes someone further into poverty and is contrary to Rule 145’s purpose to provide court access to low‐income Texans

Even if a clerk believes that the individual has sufficient funds to pay costs, clerk has to proceed with services.

Whether or not you want to file a contest (Motion to Require Payment of Costs), you must proceed with services: “the clerk must docket the case, issue citation, and provide any other service that is ordinarily provided to a party”

Issuance of citation – Follow same practice for any other litigant • If they request citation you issue it except adding to citation that Statement of Inability to Pay Costs is on file• Texas Sheriff/Constable required to serve – Rule 145(c)oClerk must indicate on document to be served by out of county/in Texas sheriff/constable that a Statement of Inability to Pay has been filed – Rule 126

o For documents to be served out of state, indicate that on documents to be served that Statement of Inability to Pay has been filed but you can notify individual that out of state sheriff/constable may not accept Statement

• Rule 99(d) party can provide the copies to attach to citation or clerk can charge for cost of copies

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Proceed with Services (Continued)

There cannot be any delay in providing these services

You must proceed even if you have filed a contest/motion to require payment

Rule does not permit you to wait for court review/approval

If your judge wants to review the Statements, you still must proceed• Judge must follow the process outlined in the Rule to contest – 10‐day notice, oral evidentiary hearing, issue written order with detailed findings

Who can file a contest to a Statement of Inability (motion to require payment of costs)?

Clerk

Party

Court

Court Reporter (added in 2016)

Attorney Ad Litem appointed to represent a parent in case brought by the Texas Department of Family and Protective Services (added in 2016)

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Sworn EvidenceWhen a clerk or party files a contest (Motion to Require Payment of Costs), the motion must contain sworn evidence that: • Statement was materially false when made or

• Circumstances have changed and Statement is no longer true in material respect

Sworn evidence: making a statement under oath or penalty of perjury• Because of the requirement that sworn evidence be presented, a Statement cannot be challenged based on information that is believed to be true; instead, a statement can only be challenged based on information that a person swears is true

Court and court reporters are not required to include sworn evidence in their motions contesting a Statement. But Rule 145 procedures for contest must still be followed before requiring an individual to pay

ProcessProcess that must be followed to obtain court order that an individual must pay court costs no matter who files motion (Rule 145(f))

Motion Filed

Oral Evidentiary Hearing• 10 days notice of hearing written and served in accordance with Rule 21A or given in open court• Burden on the declarant to prove inability to pay costs• Written order issued with detailed findings that can afford to pay costs• Can order to pay part of costs or in installments, but can’t delay case if payment is made in installments• Proposed revision: Order must state: “You may challenge this order by filing a motion in the court of appeals within 10 days after the date this order is signed. See Texas Rule of Civil Procedure 145.”

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Appeals

If court finds an individual cannot pay court costs, that order is final

Clerk cannot appeal

If court order that an individual pay court costs, the individual can file motion with the court of appeals to challenges the court’s finding that they pay costs

Rule 145(g) provides process and requires court of appeals to rule on motion at earliest practicable time

Costs

Court cannot order to pay costs unless:

• Court has issued order detailing findings that declarant can pay costs or

• Monetary recovery and court orders the recovery to be applied towards costs

Otherwise, judgment for costs is VOID

Final Judgement Ordering to Pay Costs Rule 145(h)

“Any fee charged by the court or the clerk’s office that could be taxed in a bill of costs.” Rule 145(c)

This includes filing fees, fees for issuance and service of process, fees for a court‐appointed professional, and e‐filing fees

Under rule 145(g)(1) any filing fees related to a motion appealing a trial court’s order regarding an individual’s ability to afford court costs, and fees for preparation of an appellate record

Individual should also not be required to pay for copies of document, including pleadings and anything involving the issuance and service of process*

* See slide 16

What court costs are covered?

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What to do if:Statement shows significant income and property well in excess of expenses and other factors?

The county accounting department will not pay certain fees and ask for an order?

Judge requires a hearing in all cases (or asks for an order to be submitted) and Clerk determines Statement should not be contested by Clerk?

Private attorneys file Statements for non‐legal services referred cases?

Questions?

NOTICE: THIS DOCUMENT CONTAINS SENSITIVE DATA

© Form Approved by the Supreme Court of Texas by order in Misc. Docket No. 16-9122 Statement of Inability to Afford Payment of Court Costs Page 1 of 2

Statement of Inability to Afford Payment of Court Costs or an Appeal Bond

1. Your Information

My full legal name is: My date of birth is: / / First Middle Last Month/Day/Year

My address is: (Home)

(Mailing) ___________________________________________________________________________________

My phone number: My email:

About my dependents: “The people who depend on me financially are listed below. Name

Age

Relationship to Me

1

2

3

4

5

6

2. Are you represented by Legal Aid? I am being represented in this case for free by an attorney who works for a legal aid provider or who

received my case through a legal aid provider. I have attached the certificate the legal aid provider gave me as ‘Exhibit: Legal Aid Certificate.

-or-

I asked a legal-aid provider to represent me, and the provider determined that I am financially eligible for representation, but the provider could not take my case. I have attached documentation from legal aid stating this.

or-

I am not represented by legal aid. I did not apply for representation by legal aid.

3. Do you receive public benefits?

I do not receive needs-based public benefits. - or -

I receive these public benefits/government entitlements that are based on indigency: (Check ALL boxes that apply and attach proof to this form, such as a copy of an eligibility form or check.)

Food stamps/SNAP TANF Medicaid CHIP SSI WIC AABD

Public Housing or Section 8 Housing Low-Income Energy Assistance Emergency Assistance

Telephone Lifeline Community Care via DADS LIS in Medicare (“Extra Help”)

Needs-based VA Pension Child Care Assistance under Child Care and Development Block Grant

County Assistance, County Health Care, or General Assistance (GA)

Other:

Cause Number:

(The Clerk’s office will fill in the Cause Number when you file this form)

Plaintiff: In the (check one): (Print first and last name of the person filing the lawsuit.) District Court

County Court / County Court at Law Justice Court

And Court Number

Defendant: Texas

(Print first and last name of the person being sued.) County


4. What is your monthly income and income sources?

“I get this monthly income:

$ in monthly wages. I work as a for . Your job title Your employer

$ in monthly unemployment. I have been unemployed since (date) .

$ in public benefits per month.

$ from other people in my household each month: (List only if other members contribute to your

household income.)

$ from Retirement/Pension Tips, bonuses Disability Worker’s Comp Social Security Military Housing Dividends, interest, royalties Child/spousal support My spouse’s income or income from another member of my household (If available)

$ from other jobs/sources of income. (Describe)

$ is my total monthly income.

5. What is the value of your property? 6. What are your monthly expenses? “My property includes: Value* “My monthly expenses are: Amount

Cash $ Rent/house payments/maintenance $

Bank accounts, other financial assets Food and household supplies $

$ Utilities and telephone $

$ Clothing and laundry $

$ Medical and dental expenses $

Vehicles (cars, boats) (make and year) Insurance (life, health, auto, etc.) $

$ School and child care $

$ Transportation, auto repair, gas $

$ Child / spousal support $

Other property (like jewelry, stocks, land, another house, etc.)

Wages withheld by court order

$

$ Debt payments paid to: (List) $

$ $

$ $

Total value of property $ Total Monthly Expenses $ *The value is the amount the item would sell for less the amount you still owe on it, if anything.

7. Are there debts or other facts explaining your financial situation?

“My debts include: (List debt and amount owed)

“ (If you want the court to consider other facts, such as unusual medical expenses, family emergencies, etc., attach another page to

this form labeled “Exhibit: Additional Supporting Facts.”) Check here if you attach another page.

8. Declaration I declare under penalty of perjury that the foregoing is true and correct. I further swear:

I cannot afford to pay court costs. I cannot furnish an appeal bond or pay a cash deposit to appeal a justice court decision.

My name is . My date of birth is : / / .

My address is Street City State Zip Code Country

signed on / / in County,

Signature Month/Day/Year county name State

LEGAL AID CERTIFICATE UNDER RULE 145 OF THE TEXAS RULES OF CIVIL PROCEDURE

Texas RioGrande Legal Aid, Inc. (TRLA) represents ________________________. TRLA provides free legal services, without contingency, because of the party’s indigency.

TRLA is providing services either directly or by referral from a program funded by the Texas Access to Justice Foundation or the Legal Services Corporation.

Respectfully submitted,

TEXAS RIOGRANDE LEGAL AID, INC.

BY:

Texas Bar No. Email:

Attorney for

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LEGAL AID CERTIFICATE UNDER RULE 145

OF THE TEXAS RULES OF CIVIL PROCEDURE

TEXAS RIOGRANDE LEGAL AID, INC. (TRLA) has referred _____________ to

the undersigned attorney and the attorney has accepted to represent _____________ on a

pro bono basis. TRLA, and the pro bono attorneys who accept pro bono referral cases from

the organization, provide free legal services, without contingency, because of the party’s

indigency.

TRLA is funded by the Texas Access to Justice Foundation and the Legal Services

Corporation and is a nonprofit that provides civil legal services to persons living at or below

200% of the federal poverty guidelines published annually by the United States Department

of Health and Human Services.

Respectfully submitted,

TEXAS RIOGRANDE LEGAL AID, INC.

BY:

____________________

Texas Bar No.

Email:

Attorney for ____________________

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902 E. 11th Street

Del Rio, TX 78840

Phone: (830) 774-8300

Toll Free: 888-988-9996

Fax: (830) 768-0997

www.trla.org

RE: Cause No.

To the Clerk of the Court:

____________________ applied for legal services from our office in this matter.

We completed the application for services and confirmed financial eligilbility for assistance from

our program. However, TRLA is not at this time accepting this case for representation.

Sincerely,

TEXAS RIOGRANDE LEGAL AID, INC..

_________________________________

Signature of TRLA employee

_________________________________

Printed Name of TRLA employee

RULE 143a. COSTS ON APPEAL TO COUNTY COURT

If the appellant fails to pay the costs on appeal from a judgment of a justice of the peace or small

claims court within twenty (20) days after being notified to do so by the county clerk, the appeal

shall be deemed not perfected and the county clerk shall return all papers in said cause to the justice

of the peace having original jurisdiction and the justice of the peace shall proceed as though no

appeal had been attempted.

RULE 144. JUDGMENT ON COST BOND

All bonds given as security for costs shall authorize judgment against all the obligors in such bond

for the said costs, to be entered in the final judgment of the cause.

RULE 145. PAYMENT OF COSTS NOT REQUIRED

(a) General Rule. A party who files a Statement of Inability to Afford Payment of Court

Costs cannot be required to pay costs except by order of the court as provided by

this rule. After the Statement is filed, the clerk must docket the case, issue citation,

and provide any other service that is ordinarily provided to a party. The Statement

must either be sworn to before a notary or made under penalty of perjury. In this

rule, “declarant” means the party filing the Statement.

(b) Supreme Court Form; Clerk to Provide. The declarant must use the form Statement

approved by the Supreme Court, or the Statement must include the information

required by the Court-approved form. The clerk must make the form available to all

persons without charge or request.

(c) Costs Defined. “Costs” mean any fee charged by the court or an officer of the court

that could be taxed in a bill of costs, including, but not limited to, filing fees, fees

for issuance and service of process, fees for a court-appointed professional, and fees

charged by the clerk or court reporter for preparation of the appellate record.

(d) Defects. The clerk may refuse to file a Statement that is not sworn to before a notary

or made under penalty of perjury. No other defect is a ground for refusing to file a

Statement or requiring the party to pay costs. If a defect or omission in a Statement

is material, the court—on its own motion or on motion of the clerk or any party—

may direct the declarant to correct or clarify the Statement.

(e) Evidence of Inability to Afford Costs Required. The Statement must say that the

declarant cannot afford to pay costs. The declarant must provide in the Statement,

and, if available, in attachments to the Statement, evidence of the declarant’s

inability to afford costs, such as evidence that the declarant:

(1) receives benefits from a government entitlement program, eligibility for

which is dependent on the recipient’s means;

(2) is being represented in the case by an attorney who is providing free legal

services to the declarant, without contingency, through:

(A) a provider funded by the Texas Access to Justice Foundation;

(B) a provider funded by the Legal Services Corporation; or

(C) a nonprofit that provides civil legal services to persons living at or

below 200% of the federal poverty guidelines published annually by

the United States Department of Health and Human Services;

(3) has applied for free legal services for the case through a provider listed in

(e)(2) and was determined to be financially eligible but was declined

representation; or

(4) does not have funds to afford payment of costs.

(f) Requirement to Pay Costs Notwithstanding Statement. The court may order the

declarant to pay costs only as follows:

(1) On Motion by the Clerk or a Party. The clerk or any party may move to

require the declarant to pay costs only if the motion contains sworn evidence,

not merely on information or belief:

(A) that the Statement was materially false when it was made; or

(B) that because of changed circumstances, the Statement is no longer true

in material respects.

(2) On Motion by the Attorney Ad Litem for a Parent in Certain Cases. An

attorney ad litem appointed to represent a parent under Section 107.013,

Family Code, may move to require the parent to pay costs only if the motion

complies with (f)(1).

(3) On Motion by the Court Reporter. When the declarant requests the

preparation of a reporter’s record but cannot make arrangements to pay for

it, the court reporter may move to require the declarant to prove the inability

to afford costs.

(4) On the Court’s Own Motion. Whenever evidence comes before the court that

the declarant may be able to afford costs, or when an officer or professional

must be appointed in the case, the court may require the declarant to prove

the inability to afford costs.

(5) Notice and Hearing. The declarant may not be required to pay costs without

an oral evidentiary hearing. The declarant must be given 10 days’ notice of

the hearing. Notice must either be in writing and served in accordance with

Rule 21a or given in open court. At the hearing, the burden is on the declarant

to prove the inability to afford costs.

(6) Findings Required. An order requiring the declarant to pay costs must be

supported by detailed findings that the declarant can afford to pay costs.

(7) Partial and Delayed Payment. The court may order that the declarant pay the

part of the costs the declarant can afford or that payment be made in

installments. But the court must not delay the case if payment is made in

installments.

(g) Review of Trial Court Order.

(1) Only Declarant May Challenge; Motion. Only the declarant may challenge

an order issued by the trial court under this rule. The declarant may challenge

the order by motion filed in the court of appeals with jurisdiction over an

appeal from the judgment in the case. The declarant is not required to pay

any filing fees related to the motion in the court of appeals.

(2) Time for Filing; Extension. The motion must be filed within 10 days after the

trial court’s order is signed. The court of appeals may extend the deadline by

15 days if the declarant demonstrates good cause for the extension in writing.

(3) Record. After a motion is filed, the court of appeals must promptly send

notice to the trial court clerk and the court reporter requesting preparation of

the record of all trial court proceedings on the declarant’s claim of indigence.

The court may set a deadline for filing the record. The record must be

provided without charge.

(4) Court of Appeals to Rule Promptly. The court of appeals must rule on the

motion at the earliest practicable time.

(h) Judgment. The judgment must not require the declarant to pay costs, and a provision

in the judgment purporting to do so is void, unless the court has issued an order

under (f), or the declarant has obtained a monetary recovery, and the court orders

the recovery to be applied toward payment of costs.

Comment to 2016 Change: The rule has been rewritten. Access to the civil justice

system cannot be denied because a person cannot afford to pay court costs. Whether a

particular fee is a court cost is governed by this rule, Civil Practice and Remedies Code

Section 31.007, and case law.

The issue is not merely whether a person can pay costs, but whether the person can afford

to pay costs. A person may have sufficient cash on hand to pay filing fees, but the person

cannot afford the fees if paying them would preclude the person from paying for basic

essentials, like housing or food. Experience indicates that almost all filers described in

(e)(1)-(3), and most filers described in (e)(4), cannot in fact afford to pay costs.

Because costs to access the system—filing fees, fees for issuance of process and notices,

and fees for service and return—are kept relatively small, the expense involved in

challenging a claim of inability to afford costs often exceeds the costs themselves. Thus,

the rule does not allow the clerk or a party to challenge a litigant’s claim of inability to

afford costs without sworn evidence that the claim is false. The filing of a Statement of

Inability to Afford Payment of Court Costs—which may either be sworn to before a notary

or made under penalty of perjury, as permitted by Civil Practice and Remedies Code

Section 132.001—is all that is needed to require the clerk to provide ordinary services

without payment of fees and costs. But evidence may come to light that the claim was false

when made. And the declarant’s circumstances may change, so that the claim is no longer

true. Importantly, costs may increase with the appointment of officers or professionals in

the case, or when a reporter’s record must be prepared. The reporter is always allowed to

challenge a claim of inability to afford costs before incurring the substantial expense of

record preparation. The trial court always retains discretion to require evidence of an

inability to afford costs.

RULE 146. DEPOSIT FOR COSTS

In lieu of a bond for costs, the party required to give the same may deposit with the clerk of court

or the justice of the peace such sum as the court or justice from time to time may designate as

sufficient to pay the accrued costs.

RULE 147. APPLIES TO ANY PARTY

The foregoing rules as to security and rule for costs shall apply to any party who seeks a judgment

against any other party.

RULE 148. SECURED BY OTHER BOND

IN THE SUPREME COURT OF TEXAS

════════════════════ Misc. Docket No. 20-9154

════════════════════

════════════════════════════════════════════════════ PRELIMINARY APPROVAL OF AMENDMENTS TO TEXAS RULES OF CIVIL

PROCEDURE 145, 502.3, AND 506.4 AND TO THE FORM STATEMENT OF INABILITY TO AFFORD PAYMENT OF COURT COSTS

════════════════════════════════════════════════════

ORDERED that: 1. The Court preliminarily approves amendments to Texas Rules of Civil Procedures 145,

502.3, and 506.4 and to the form Statement of Inability to Afford Payment of Court Costs.

2. The amendments make two sets of substantive changes to Rule 145.

First, paragraph (d) has been amended to clarify that certain categories of evidence are prima facie proof of the declarant’s inability to afford costs. Paragraph (e) now requires that a contest by a court reporter satisfy the same conditions as a contest by the clerk or a party. These changes are intended to reduce frivolous challenges to a Statement, which cost time and resources.

Second, paragraph (f)(4) has been amended to require that an order directing the declarant to pay costs include notice of the declarant’s right to appeal.

Additional stylistic changes have resulted in some paragraphs being rearranged or renumbered. This order includes both a clean copy of the amended rule and a rough redline demonstrating the changes. In the event of a conflict between the two, the clean copy controls.

3. Rule 502.3 is amended to update a reference to Rule 145 in paragraph (c). A few other

changes are made for conformity and readability. The changes to this rule are demonstrated in redline only.

4. Rule 506.4 is amended to correct a typographical error in the heading of paragraph (c).

This change is demonstrated in redline only. 5. The form Statement has been amended to give the declarant the option of making an

affidavit before a notary rather than a declaration under penalty of perjury. Other wordsmithing changes have been made. Only a clean version of the amended form is included. The Office of Court Administration is directed to prepare a bilingual form

Misc. Docket No. 20-9154 Page 2

Statement, which will be posted at https://www.txcourts.gov/rules-forms/forms/ when available.

6. The Court will issue a final approval order at least 60 days after publication of the

amendments in the February edition of the Texas Bar Journal. The amendments may change in response to public comments.

7. Comments should be sent to [email protected]. The Court requests that

comments be sent by April 2, 2021. 8. The Clerk is directed to:

a. file a copy of this Order with the Secretary of State; b. cause a copy of this Order to be mailed to each registered member of the State Bar

of Texas by publication in the Texas Bar Journal;

c. send a copy of this Order to each elected member of the Legislature; and d. submit a copy of the Order for publication in the Texas Register.

Dated: December 23, 2020


Nathan L. Hecht, Chief Justice Eva M. Guzman, Justice Debra H. Lehrmann, Justice Jeffrey S. Boyd, Justice John P. Devine, Justice James D. Blacklock, Justice __________________________________________ J. Brett Busby, Justice Jane N. Bland, Justice Rebeca A. Huddle, Justice


RULE 145. PAYMENT OF COSTS NOT REQUIRED (Clean, As Amended)

(a) Costs Defined. “Costs” mean any fee charged by the court or an officer of the court that

could be taxed in a bill of costs, including, but not limited to, filing fees, fees for issuance and service of process, fees for a court-appointed professional, and fees charged by the clerk or court reporter for preparation of the appellate record.

(b) Sworn Statement Required. A party who cannot afford payment of court costs must file

the Statement of Inability to Afford Payment of Court Costs approved by the Supreme Court or another sworn document containing the same information. A “sworn” Statement is one that is signed before a notary or made under penalty of perjury. In this rule, “declarant” means the party filing the Statement.

(c) Duties of the Clerk. The clerk:

(1) must make the Statement available to any person for free;

(2) may return a Statement for correction only if it is not sworn—not for any other reason;

(3) must, on the filing of a sworn Statement, docket the case, issue citation, and

provide any other service that is ordinarily provided to a party; and (4) may, without delaying compliance with (3), ask the court to direct the declarant to

correct or clarify a sworn Statement that contains a material defect. (d) Prima Facie Evidence of Inability to Afford Payment of Costs. The declarant should

submit with the Statement any available evidence of the declarant’s inability to afford payment of costs. An attachment demonstrating any of the following is prima facie evidence:

(1) the declarant receives benefits from a means-tested government entitlement

program;

(2) the declarant is being represented in the case by an attorney who is providing free legal services to the declarant through:



(C) a nonprofit that provides civil legal services to persons living at or below

200% of the federal poverty guidelines published annually by the United States Department of Health and Human Services; or


(3) the declarant has applied for free legal services for the case through a provider listed in (2) and was determined to be financially eligible but was declined representation.

(e) Motion to Require Payment of Costs. A motion to require the declarant to pay costs must

comply with this paragraph.

(1) By the Clerk, the Reporter, or a Party. A motion filed by the clerk, the court reporter, or a party must contain sworn evidence—not merely allegations—either that the Statement was materially false when made or that because of changed circumstances, it is no longer true.

(2) By the Court. The court on its own may require the declarant to prove the inability

to afford costs when evidence comes before the court that the declarant may be able to afford costs or when an officer or professional must be appointed in the case.

(f) Notice; Hearing; Requirements of Order. When a Statement has been filed, the declarant

must not be ordered to pay costs unless these procedural requirements have been satisfied: (1) Notice and Hearing. The declarant must not be required to pay costs without an

oral evidentiary hearing. The declarant must be given 10 days’ notice of the hearing. Notice must either be in writing and served in accordance with Rule 21a or given in open court. At the hearing, the burden is on the declarant to prove the inability to afford costs.



(3) Partial and Delayed Payment. The court may order that the declarant pay the part of the costs the declarant can afford or that payment be made in installments. But the court must not delay the case if payment is made in installments.

(4) Order Must State Notice of Right to Appeal. An order requiring the declarant to

pay costs must state in conspicuous type: “You may challenge this order by filing a motion in the court of appeals within 10 days after the date this order is signed. See Texas Rule of Civil Procedure 145.”


(1) Only Declarant May Challenge; Motion. Only the declarant may challenge an order issued by the trial court under this rule. The declarant may challenge the order by motion filed in the court of appeals with jurisdiction over an appeal from the judgment in the case. The declarant is not required to pay any filing fees related to the motion in the court of appeals.


(2) Time for Filing; Extension. The motion must be filed within 10 days after the trial

court’s order is signed. The court of appeals may extend the deadline by 15 days if the declarant demonstrates good cause for the extension in writing.

(3) Record. After a motion is filed, the court of appeals must promptly send notice to

the trial court clerk and the court reporter requesting preparation of the record of all trial court proceedings on the declarant’s claim of indigence. The court may set a deadline for filing the record. The record must be provided without charge.

(4) Court of Appeals to Rule Promptly. The court of appeals must rule on the motion

at the earliest practicable time. (h) Judgment. The judgment must not require the declarant to pay costs, and a provision in

the judgment purporting to do so is void, unless the court has issued an order that complies with (f), or the declarant has obtained a monetary recovery, and the court orders the recovery to be applied toward payment of costs.

Notes and Comments

Comment to 2016 Change: The rule has been rewritten. Access to the civil justice system cannot be denied because a person cannot afford to pay court costs. Whether a particular fee is a court cost is governed by this rule, Civil Practice and Remedies Code Section 31.007, and case law. The issue is not merely whether a person can pay costs, but whether the person can afford to pay costs. A person may have sufficient cash on hand to pay filing fees, but the person cannot afford the fees if paying them would preclude the person from paying for basic essentials, like housing or food. Experience indicates that almost all filers described in (e)(1)-(3), and most filers described in (e)(4), cannot in fact afford to pay costs. Because costs to access the system—filing fees, fees for issuance of process and notices, and fees for service and return—are kept relatively small, the expense involved in challenging a claim of inability to afford costs often exceeds the costs themselves. Thus, the rule does not allow the clerk or a party to challenge a litigant’s claim of inability to afford costs without sworn evidence that the claim is false. The filing of a Statement of Inability to Afford Payment of Court Costs—which may either be sworn to before a notary or made under penalty of perjury, as permitted by Civil Practice and Remedies Code Section 132.001—is all that is needed to require the clerk to provide ordinary services without payment of fees and costs. But evidence may come to light that the claim was false when made. And the declarant’s circumstances may change, so that the claim is no longer true. Importantly, costs may increase with the appointment of officers or professionals in the case, or when a reporter’s record must be prepared. The reporter is always allowed to challenge a claim of inability to afford costs before incurring the substantial expense of record preparation. The trial court always retains discretion to require evidence of an inability to afford costs.


Comment to 2021 Change: The rule has been amended to clarify that proof of any criterion in paragraph (d) is prima facie evidence of the declarant’s inability to afford payment of costs. Paragraph (e) has been amended to require that a contest by the court reporter satisfy the same conditions as a contest by the clerk or a party. These amendments are intended to reduce frivolous challenges to a Statement, which cost time and resources. The rule has also been amended to require in paragraph (f)(4) that an order requiring payment of costs include conspicuous notice of the declarant’s right to appeal.

To accommodate these substantive changes, some paragraphs have been rearranged and relettered or renumbered. Other clarifying and stylistic changes have been made.


RULE 145. PAYMENT OF COSTS NOT REQUIRED (a) General Rule. A party who files a Statement of Inability to Afford Payment of Court Costs cannot be required

to pay costs except by order of the court as provided by this rule. After the Statement is filed, the clerk must docket the case, issue citation, and provide any other service that is ordinarily provided to a party. The Statement must either be sworn to before a notary or made under penalty of perjury. In this rule, “declarant” means the party filing the Statement.

(b) Supreme Court Form; Clerk to Provide. The declarant must use the form Statement

approved by the Supreme Court, or the Statement must include the information required by the Court-approved form. The clerk must make the form available to all persons without charge or request.

(c) Costs Defined. “Costs” mean any fee charged by the court or an officer of the court that

could be taxed in a bill of costs, including, but not limited to, filing fees, fees for issuance and service of process, fees for a court-appointed professional, and fees charged by the clerk or court reporter for preparation of the appellate record.

(b) Sworn Statement Required. A party who cannot afford payment of court costs must file

the Statement of Inability to Afford Payment of Court Costs approved by the Supreme Court or another sworn document containing the same information. A “sworn” Statement is one that is signed before a notary or made under penalty of perjury. In this rule, “declarant” means the party filing the Statement.

(d) Defects.(c) Duties of the Clerk. The clerk :

(1) must make the Statement available to any person for free;

(2) may refuse to filereturn a Statement thatfor correction only if it is not sworn to before a notary or made under penalty of perjury. No—not for any other defect isreason;

(3) must, on the filing of a ground for refusingsworn Statement, docket the case, issue

citation, and provide any other service that is ordinarily provided to file a Statement or requiring the party to pay costs. If a defect or omission in a Statement is material, the court—on its own motion or on motion of the clerk or any party—party; and

(4) may, without delaying compliance with (3), ask the court to direct the declarant to

correct or clarify thea sworn Statement that contains a material defect. (e) (d) Prima Facie Evidence of Inability to Afford Costs Required. The Statement must

say that the declarant cannot afford to pay costs. Payment of Costs. The declarant must


provide inshould submit with the Statement, and, if any available, in attachments to the Statement, evidence of the declarant’s inability to afford costs, such aspayment of costs. An attachment demonstrating any of the following is prima facie evidence:

(1) that the declarant :

(1) receives benefits from a means-tested government entitlement program, eligibility

for which is dependent on the recipient’s means;

(2) the declarant is being represented in the case by an attorney who is providing free legal services to the declarant, without contingency, through:



(C) a nonprofit that provides civil legal services to persons living at or below

200% of the federal poverty guidelines published annually by the United States Department of Health and Human Services; or

(3) the declarant has applied for free legal services for the case through a provider

listed in (e)(2) and was determined to be financially eligible but was declined representation; or.

(4) does not have funds

(e) Motion to afford paymentRequire Payment of costs. (f) Requirement to Pay Costs Notwithstanding Statement. The court may order the declarant

to pay costs only as follows. A motion :

(1) On Motion by the Clerk or a Party. The clerk or any party may move to require the declarant to pay costs only if the motion containsmust comply with this paragraph.

(1) By the Clerk, the Reporter, or a Party. A motion filed by the clerk, the court reporter, or a party must contain sworn evidence, —not merely on information or belief:

(A) allegations—either that the Statement was materially false when it was

made; or

(B) that because of changed circumstances, the Statement it is no longer true in material respects.

(2) On Motion by the Attorney Ad Litem for a Parent in Certain Cases. An

attorney ad litem appointed to represent a parent under Section 107.013, Family


Code, may move to require the parent to pay costs only if the motion complies with (f)(1).

(3) On Motion by the Court Reporter. When the declarant requests the

preparation of a reporter’s record but cannot make arrangements to pay for it, the court reporter may move toBy the Court. The court on its own may require the declarant to prove the inability to afford costs.

(2) (4) On the Court’s Own Motion. Whenever when evidence comes before the court that the declarant may be able to afford costs, or when an officer or professional must be appointed in the case, the court may require the declarant to prove the inability to afford costs.

(f) Notice; Hearing; Requirements of Order. When a Statement has been filed, the declarant

must not be ordered to pay costs unless these procedural requirements have been satisfied: (1(5) Notice and Hearing. The declarant maymust not be required to pay costs without

an oral evidentiary hearing. The declarant must be given 10 days’ notice of the hearing. Notice must either be in writing and served in accordance with Rule 21a or given in open court. At the hearing, the burden is on the declarant to prove the inability to afford costs.



(73) Partial and Delayed Payment. The court may order that the declarant pay the part of the costs the declarant can afford or that payment be made in installments. But the court must not delay the case if payment is made in installments.

(4) Order Must State Notice of Right to Appeal. An order requiring the declarant to

pay costs must state in conspicuous type: “You may challenge this order by filing a motion in the court of appeals within 10 days after the date this order is signed. See Texas Rule of Civil Procedure 145.”


(1) Only Declarant May Challenge; Motion. Only the declarant may challenge an order issued by the trial court under this rule. The declarant may challenge the order by motion filed in the court of appeals with jurisdiction over an appeal from the judgment in the case. The declarant is not required to pay any filing fees related to the motion in the court of appeals.

(2) Time for Filing; Extension. The motion must be filed within 10 days after the trial court’s order is signed. The court of appeals may extend the deadline by 15 days if the declarant demonstrates good cause for the extension in writing.


(3) Record. After a motion is filed, the court of appeals must promptly send notice to

the trial court clerk and the court reporter requesting preparation of the record of all trial court proceedings on the declarant’s claim of indigence. The court may set a deadline for filing the record. The record must be provided without charge.

(4) Court of Appeals to Rule Promptly. The court of appeals must rule on the motion

at the earliest practicable time. (h) Judgment. The judgment must not require the declarant to pay costs, and a provision in

the judgment purporting to do so is void, unless the court has issued an order underthat complies with (f), or the declarant has obtained a monetary recovery, and the court orders the recovery to be applied toward payment of costs.

Notes and Comments

Comment to 2016 Change: The rule has been rewritten. Access to the civil justice system cannot be denied because a person cannot afford to pay court costs. Whether a particular fee is a court cost is governed by this rule, Civil Practice and Remedies Code Section 31.007, and case law. The issue is not merely whether a person can pay costs, but whether the person can afford to pay costs. A person may have sufficient cash on hand to pay filing fees, but the person cannot afford the fees if paying them would preclude the person from paying for basic essentials, like housing or food. Experience indicates that almost all filers described in (e)(1)-(3), and most filers described in (e)(4), cannot in fact afford to pay costs. Because costs to access the system—filing fees, fees for issuance of process and notices, and fees for service and return—are kept relatively small, the expense involved in challenging a claim of inability to afford costs often exceeds the costs themselves. Thus, the rule does not allow the clerk or a party to challenge a litigant’s claim of inability to afford costs without sworn evidence that the claim is false. The filing of a Statement of Inability to Afford Payment of Court Costs—which may either be sworn to before a notary or made under penalty of perjury, as permitted by Civil Practice and Remedies Code Section 132.001—is all that is needed to require the clerk to provide ordinary services without payment of fees and costs. But evidence may come to light that the claim was false when made. And the declarant’s circumstances may change, so that the claim is no longer true. Importantly, costs may increase with the appointment of officers or professionals in the case, or when a reporter’s record must be prepared. The reporter is always allowed to challenge a claim of inability to afford costs before incurring the substantial expense of record preparation. The trial court always retains discretion to require evidence of an inability to afford costs. Comment to 2021 Change: The rule has been amended to clarify that proof of any criterion in paragraph (d) is prima facie evidence of the declarant’s inability to afford court costs. Paragraph (e) has been amended to require that a contest by the court reporter satisfy the same


conditions as a contest by the clerk or a party. These amendments are intended to reduce frivolous challenges to a Statement, which cost time and resources. The rule has also been amended to require in paragraph (f)(3) that an order requiring payment of costs include conspicuous notice of the declarant’s right to appeal.

To accommodate these substantive changes, some paragraphs have been rearranged and relettered or renumbered. Other clarifying and stylistic changes have been made.


RULE 502.3. FEES; INABILITY TO AFFORD FEES (a) Fees and Statement of Inability to Afford Payment of Court Costs. On filing the petition,

the plaintiff must pay the appropriate filing fee and service fees, if any, with the court. A plaintiff who is unable to afford to pay the fees must file a Statement of Inability to Afford Payment of Court Costs. The Statement must either be sworn to before a notary or made under penalty of perjury. Upon filing the Statement, the clerk must docket the action, issue citation, and provide any other customary services.

(b) Supreme Court Form; Contents of Statement. The plaintiff must use the form Statement

approved by the Supreme Court, or the Statement must include the information required by the Court-approved form. The clerk must make the form available to all any persons for freewithout charge or request.

(c) Certificate of Legal-Aid Provider. If the party is represented by an attorney who is

providing free legal services because of the party’s indigence, without contingency, and the attorney is providing services either directly or by referral from a legal-aid provider described in Rule 145(d)(e)(2), the attorney may file a certificate confirming that the provider screened the party for eligibility under the income and asset guidelines established by the provider. A Statement that is accompanied by the certificate of a legal-aid provider may not be contested under (d).

(d) Contest.

(1) Unless a certificate is filed under (c), the defendant may file a contest of the Statement at any time within 7 days after the day the defendant’s answer is due. If the Statement attests to receipt of government entitlement based on indigence, the Statement may only be contested with regard to the veracity of the attestation.

(2) If contested, the judge must hold a hearing to determine the plaintiff’s ability to afford the fees. At the hearing, the burden is on the plaintiff to prove the inability to afford fees.

(2)(3) The judge may, regardless of whether the defendant contests the Statement,

examine the Statement and conduct a hearing to determine the plaintiff’s ability to afford fees.

(3)(4) If the judge determines that the plaintiff is able to afford the fees, the judge must

enter a written order listing the reasons for the determination, and the plaintiff must pay the fees in the time specified in the order or the case will be dismissed without prejudice.


RULE 506.4. WRIT OF CERTIORARI * * * (c) Bond, Cash Deposit, or Sworn Statement of Indigency Inability to Pay Required. . . . * * *


NOTICE: THIS DOCUMENT CONTAINS SENSITIVE DATA Cause Number:

(The Clerk’s office will fill in the Cause Number when you file this form)

_____________________________________ _____________________________________ (Print style of case as listed on the petition.)

In the (check one): ________ District Court Probate Court Court County Court / Justice Court Number County Court at Law ________________________ Texas County

Statement of Inability to Afford Payment of Court Costs or an Appeal Bond

1. Your Information

My full legal name is: My date of birth is: / / First Middle Last Month/Day/Year

My address is: (Home) (Mailing)

My phone number: My email: About my dependents: “The people who depend on me financially are listed below.

Name Age Relationship to me 1._________________________________________________ _____ ______________________

2._________________________________________________ _____ ______________________

3._________________________________________________ _____ ______________________

4._________________________________________________ _____ ______________________

5._________________________________________________ _____ ______________________

2. Are you represented by Legal Aid? (Check ONLY ONE box) I am being represented in this case for free by an attorney who works for a legal aid provider or who

received my case through a legal aid provider. I have attached the certificate the legal aid provider gave me as ‘Exhibit: Legal Aid Certificate. – OR –

I asked a legal-aid provider to represent me, and the provider determined that I am financially eligible for representation, but the provider could not take my case. – OR –

I am not represented by legal aid.

3. Do you receive public benefits? (Check ONLY ONE box) I do not receive needs-based public benefits. – OR – I receive these public benefits/government entitlements:

(Check ALL boxes that apply and attach proof to this form, such as a copy of an eligibility form or check.) Food stamps/SNAP TANF Medicaid CHIP SSI WIC AABD Public Housing or Section 8 Housing Low-Income Energy Assistance Emergency Assistance Telephone Lifeline Community Care via DADS LIS in Medicare (“Extra Help”) Needs-based VA Pension Child Care Assistance under Child Care and Development Block Grant County Assistance, County Health Care, or General Assistance (GA) Other:


4. What are your monthly income sources? “My take-home pay is:$___________in monthly wages. I work as a______________ for____________________. I receive: Your job title Your employer $ in monthly unemployment. I have been unemployed since (date) . $ in public benefits per month. $ from people in my household each month. (List for income received from people other than your spouse.) $____________from Retirement/Pension Tips, bonuses Disability Worker’s comp Social Security Military Housing Dividends, interest, royalties Child or spousal support Spouse’s income (List if your spouse is not your opponent.) $ from other jobs/sources of income. (Describe) $ is my total monthly income. 6. What are your monthly expenses that are not 5. What is the value of your assets or property? deducted from your paycheck? “My property includes: Value* “My monthly expenses are: Amount Cash $ Rent/house payments/maintenance $ Bank accounts, other financial assets Food and household supplies $ $ Utilities and telephone $ $ Clothing and laundry $ $ Medical and dental expenses $ Vehicles (cars, boats) (make and year) Insurance (life, health, auto, etc.) $ $ School and child care $ $ Transportation, auto repair, gas $ $ Child / spousal support $

Other property (like jewelry, stocks, land, a 2nd house. Do not list your homestead.)

Wages withheld by court order Other expenses

$ $

$ Debt payments paid to: (List) $ $ $ $ $ Total Value of Property→ $ Total Monthly Expenses → $ *The value is the amount the item would sell for less the amount you still owe on it, if anything.

7. Are there debts or other facts explaining your financial situation? “My debts include: (List debt and amount owed) ___________________________________________________ ____________________________________________________________________________________________________________________________________________________________________________________ (If you want the court to consider other facts, such as unusual medical expenses, family emergencies, etc., attach another page to this form labeled “Exhibit: Additional Supporting Facts.”) Check here if you attach another page.

8. Ability to Pay Court Costs: (Check ONLY ONE box) I cannot afford to pay court costs. I cannot furnish an appeal bond or pay a cash deposit to appeal a justice court decision, and I cannot afford to

pay court costs.

9. Declaration/Affidavit: (Check and complete ONLY ONE box) Declaration: I declare under penalty of perjury that the foregoing is true and correct.

My name is . My date of birth is : / / . My address is

Street City State Zip Code Country

signed on / / in County, Signature Month/Day/Year County name State

Notary: I swear under penalty of perjury that the foregoing is true and correct. ________________________________________ _________________________________________Your Printed Name Your Signature

Sworn to and subscribed before me this _______ day of _____________________, 20_____. _________________________________________________ (NOTARY)

Thursday, Feb. 4, 2021 p.m. - county of... · 2021. 1. 29. · PRESENTED BY: MARY CHRISTINE REED,...

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Transcript of Thursday, Feb. 4, 2021 p.m. - county of... · 2021. 1. 29. · PRESENTED BY: MARY CHRISTINE REED,...