Carol Johnene Morris v. Jerry Bundick, Chief Appraiser et al--Appeal from 238th District Court of Midland County

Opinion filed August 14, 2008

In The

Eleventh Court of Appeals

____________

 No. 11-08-00124-CV

__________

 CAROL JOHNENE MORRIS, Appellant

V.

JERRY BUNDICK, CHIEF APPRAISER ET AL, Appellees

On Appeal from the 238th District Court

Midland County, Texas

Trial Court Cause No. CV46225

M E M O R A N D U M O P I N I O N

This is a pro se appeal from an order sustaining contests to Carol Johnene Morris=s claim for a free court record. We affirm.

On January 11, 2008, Morris filed a notice of appeal from the denial of summary judgment.[1] On January 14, 2008, Morris filed an affidavit of indigency with respect to her notice of appeal from the denial of summary judgment. On January 22, 2008, both the district clerk and the official court reporter filed a contest to Morris=s affidavit of inability to pay costs on appeal. The trial court held a hearing concerning the contests on January 31, 2008, and entered an order on February 1, 2008, sustaining the challenges to Morris=s claim of indigence. Morris filed a notice of appeal from the denial of her entitlement to proceed in forma pauperis, and on May 7, 2008, she filed a brief relating to indigence.

Morris contends that the contests and the hearing were untimely. We disagree. The affidavit of indigency with respect to this case was filed on January 14, and the contests were filed on January 22. The contests were, therefore, timely under Tex. R. App. P. 20.1(e) (allowing ten days from date of filing of affidavit to file contest). Because the hearing was conducted within ten days of the filing of the contests, it was timely under Tex. R. App. P. 20.1(i)(2)(A).

With respect to Morris=s indigence, the trial court found that Morris owns the following: a functioning business, Morris Services; more than twenty separate real properties listed on the tax rolls of Midland County, including at least three rental houses and rent-producing buildings; an evening entertainment club in Midland known as APleasures@; two motor vehicles; and a four-bedroom home. The trial court also found that Morris=s properties generate income, that she has an existing income-producing contract with the City of Midland, and that Morris=s real property and income productivity are available but have not been utilized to defray the expense of the court record. The trial court concluded that Morris has not met her burden of proof on indigence and that Morris has the financial ability to pay for the clerk=s record and the court reporter=s record.

The trial court=s findings are supported by the testimony from the indigency hearing. The reporter=s record reflects that Morris testified at the hearing, admitting that she owns more than twenty-one real properties in Midland County plus a nice four-bedroom home. Morris also testified that she owns APleasures,@ a late night club. Morris testified that none of her real estate properties are currently listed for sale and that she does not intend to sell any of the real property or personalty that she inherited from her parents. Morris testified that she is self-employed and has a contract with the City of Midland Ato do lots.@ In her affidavit of indigency, Morris stated that the income she received from the City of Midland for mowing lots was $744 per month. Morris testified that she receives additional rental income of approximately $1,000 per month.

Morris had the burden to prove her indigence. Tex. R. App. P. 20.1(g). The burden in the trial court has been stated as follows, A[T]he test for indigency is whether a preponderance of the evidence shows the party would be unable to pay costs, >if (s)he really wanted to and made a good faith effort [to] do so.=@ Arevalo v. Millan, 983 S.W.2d 803, 804 (Tex. App.CHouston [1st Dist.] 1998, no pet.) (citing Allred v. Lowry, 597 S.W.2d 353, 355 (Tex.1980)). On appeal, the standard of review is abuse of discretion. Rodgers v. Mitchell, 83 S.W.3d 815 (Tex. App.CTexarkana 2002, no pet.); White v. Bayless, 40 S.W.3d 574 (Tex. App.CSan Antonio 2001, pet. denied); Arevalo, 983 S.W.2d at 804. After reviewing the record from the indigency hearing, we cannot hold that the trial court abused its discretion in sustaining the contests.

The order of the trial court is affirmed.

PER CURIAM

August 14, 2008

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.

[1]That appeal is our Cause No. 11-08-00013-CV and is this same day dismissed for want of jurisdiction.