Full Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-26-00605-CV Rebecca Perez, Appellant v. Jammal Akene, Appellee FROM THE 169TH DISTRICT COURT OF BELL COUNTY NO. 23DFAM341813, THE HONORABLE CARI L. STARRITT-BURNETT, JUDGE PRESIDING MEMORANDUM OPINION Appellant Rebecca Perez filed a motion challenging the trial court’s order requiring her to pay appellate court costs after conducting a hearing on her inability to pay. We conclude that the trial court abused its discretion by requiring Perez to pay court costs. Therefore, we reverse the trial court’s order and direct the clerk and the court reporter to prepare the record without the payment of costs. BACKGROUND Perez, who is a pro se litigant, filed a Statement of Inability to Afford Court Costs or an Appeal Bond (Statement of Inability) in the trial court on April 30, 2026. See Tex. R. Civ. P. 145(b). Perez filed a notice of appeal of the final judgment in the trial court on May 13, 2026. 1 The record does not reflect that a motion challenging Perez’s indigency was filed. Compare id. R. 145(e)(2) (allowing trial court to require declarant to prove 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”), with id. R. 145(e)(1) (allowing clerk, court reporter, or party to file motion to require declarant to pay costs but motion “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”). On May 22, 2026, the trial court issued a notice of hearing informing the parties that the court had set a “Contest Inability to Pay hearing” for June 2, 2026. See id. R. 145(f)(1) (establishing that declarant must not be required to pay costs without oral evidentiary hearing for which ten days’ notice must be given). On May 26, Perez filed a “Motion for Remote Appearance.” In her motion, Perez asked to attend the hearing remotely via Zoom, telephone, or other remote means, stating that she resides in Orlando, Florida, and would be unable to afford the cost of traveling to appear in person. She also stated that she had “made good faith efforts to promptly contact the Court Coordinator regarding remote appearance accommodations and respectfully requests the opportunity to participate remotely so that [she] may fully appear and participate in the scheduled hearing.” On May 27, Perez filed an “Exhibit Index,” submitting the following exhibits in support of her Statement of Inability: • First page of her lease agreement showing her housing obligation and rent amount 1 Perez’s appeal from the trial court’s final judgment has been docketed in this Court as No. 03-26-00471-CV, Perez v. Akene. 2 • SNAP award letter from State of Florida showing approval for public food-assistance benefits • Social Security Administration verification letter showing Supplemental Security Income (SSI) benefits to be paid on behalf of a disabled minor child • Most recent pay stub showing current employment income • Current electric utility bill • Telephone bill showing outstanding balance • Texas probation fees statement showing monthly payment amount • Florida probation fees statement showing monthly payment amount. The trial court did not rule on Perez’s motion for remote appearance, so Perez contacted the court coordinator by email on June 1, the day before the hearing, requesting an update. In that email, Perez reiterated that she was unable to travel to Texas due to financial constraints; she also noted that she was under probation supervision in Florida, which created additional limitations and logistical requirements for interstate travel on short notice. The coordinator informed Perez that her “presence is required” but that she could reset the hearing for a week or two later to allow Perez to make travel arrangements. Perez responded and again requested to appear via Zoom or telephone because additional time would not resolve her financial inability to travel or the additional logistical issues with travel because of her probation. In response, the court coordinator stated, “Per the Court, this case will be taken up tomorrow morning, 6/2/26 at 9:30AM.” The trial court conducted the hearing on Perez’s Statement of Inability on June 2, 2026. Perez did not appear in person. The trial court stated that the deputy had called for her three times in the hall and there was no response. The trial court also stated it had “checked on 3 the Zoom just by chance that she maybe would follow the link; although, she’s not been permitted to do so.” Perez had not logged on to the Zoom link. During the hearing, the trial court described “some concerns” regarding Perez’s Statement of Inability and supporting evidence. These concerns included whether Perez had reported the tip income shown on her pay stub on her Statement of Inability, that Perez had “moved away from Texas” and was paying a “higher rent than what would be in my concern prudent for her,” that Perez had probation in Texas and Florida, and what the Cash App screenshot that stated “Bell County payment” represented (Perez had identified it as “Texas probation fee statement/page” in her filing), stating “There’s a lot of it that’s not able to be explained without her information.” The trial court noted that Perez receives SSI payments on behalf of one of her dependent children. The trial court asked appellee Jammal Akene’s counsel whether he had any reason to believe that any of Perez’s information on her inability to pay is incorrect. Counsel stated that Akene opposes Perez’s Statement of Inability, but he neither introduced any documentary evidence nor did Akene (or anyone else) testify to contradict or rebut Perez’s evidence. The trial court ruled, “I am going to deny the statement on the inability to afford costs based on [Perez’s] lack of appearance, and order that she pay the court costs.” That same day, the trial court signed an Order on Inability to Pay in which it made the following three findings: o The person filing the affidavit of inability to pay costs REBECCA SUE PEREZ is ORDERED TO PAY COURT COSTS OF COURT at this time. o On the face of the filing, there are issues that [Perez] did not comply with for full explanation of her accelerated high rent and little income, indicating that there would be other people helping her pay rent and needing further explanation in the 4 very least from [Perez] who failed to appear at the hearing. [Perez] did not add her tips at her employment and failed to include her SSI for the child on her income for payment of expenses. The income and expenses are not corroborated for purposes of validating this inability to pay without further information from [Perez] who failed to appear. o The person filing the request did NOT appear on June 02, 2026 for the hearing on the inability to pay. Perez timely filed a motion challenging the trial court’s order, see id. R. 145(g), which we have docketed as this appeal. GOVERNING LAW AND STANDARD OF REVIEW Rule 145 of the Texas Rules of Civil Procedure sets out the process by which a party may assert that she cannot afford payment of court costs in a district or county court and apply for indigency status. Id. R. 145. First, the party—referred to as the “declarant”—must file a sworn Statement of Inability to Afford Payment of Court Costs. Id. R. 145(b). A statement is sworn if it is “signed before a notary or made under penalty of perjury.” Id. The Rule provides that “[t]he declarant should submit with the Statement any available evidence of the declarant’s inability to afford payment of costs.” Id. R. 145(d). Under Rule 145, the following evidence qualifies as a prima facie showing that the declarant is unable to afford payment of costs: (1) the declarant or the declarant’s dependent receives benefits from a means- tested government entitlement program; (2) the declarant is being represented in the case by an attorney who is providing legal services to the declarant through: (A) a provider funded by the Texas Access to Justice Foundation; (B) a provider funded by the Legal Services Corporation; or 5 (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. Id. R. 145(d). The clerk, the court reporter, a party, or the court itself may contest the Statement of Inability. Id. R. 145(d). If the Statement of Inability is contested, the trial court may not require the declarant to pay costs without holding an oral evidentiary hearing, for which the declarant must be given at least ten days’ notice. Id. R. 145(f)(1). At the hearing, “the burden is on the declarant to prove the inability to afford costs.” Id. Finally, if the court finds that the declarant has failed to meet her burden, it must issue an order requiring the declarant to pay costs that is “supported by detailed findings that the declarant can afford to pay costs.” See id. R. 145(f)(2). The order 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.” Id. R. 145(f)(4). The test for determining indigence is whether the record as a whole shows “by a preponderance of the evidence that the applicant would be unable to pay the costs . . . if [s]he really wanted to and made a good-faith effort to do so.” Higgins v. Randall Cnty. Sheriff’s Off., 257 S.W.3d 684, 686 (Tex. 2008) (quoting Pinchback v. Hockless, 164 S.W.2d 19, 20 (Tex. [Comm’n Op.] 1942)). The central inquiry under the Rule “is not merely whether [the party] can pay costs, but whether [she] can afford to pay costs” and still pay for “basic essentials, like housing or food.” See Tex. R. Civ. P. 145, cmt. to 2016 Change. The party is not required to 6 show family or friends are unable to pay the costs, and she is not expected to secure the necessary funds by depriving herself and her family of the necessities of life or borrowing money she cannot repay. See In re A.R.M., No. 05-17-00651-CV, 2017 WL 2962830, at *2 (Tex. App.—Dallas July 12, 2017, no pet.) (mem. op.) (citing, e.g., Allred v. Lowry, 597 S.W.2d 353, 355 (Tex. 1980) (orig. proceeding); Gofney v. Lowry, 554 S.W.2d 157, 159-60 (Tex. 1977) (orig. proceeding)). We review a trial court’s order to pay costs for an abuse of discretion. Strickland v. iHeartMedia, Inc., 668 S.W.3d 34, 37 (Tex. App.—San Antonio 2022, no pet.); Kastner v. Texas Bd. of Law Exam’rs, No. 03-08-00515-CV, 2009 WL 2476640, at *1 (Tex. App.— Austin Aug. 12, 2009, no pet.) (mem. op.). “The trial court abuses its discretion if its ‘ruling is so arbitrary and unreasonable as to be clearly wrong.’” Strickland, 668 S.W.3d at 37 (quoting White v. Bayless, 40 S.W.3d 574, 576 (Tex. App.—San Antonio 2001, pet. denied)). As the factfinder, the trial court is the sole judge of the credibility of the witnesses and evidence. Id. But the trial court “may not completely disregard” a declarant’s evidence of inability to pay if it is the only positive evidence adduced. Sansom v. Sprinkle, 799 S.W.2d 776, 778 (Tex. App.— Fort Worth 1990, orig. proceeding). ANALYSIS In her motion, Perez asserts that the trial court abused its discretion by requiring her to pay costs for two reasons. First, she argues that the trial court should not have required her to pay costs based on her failure to participate in the hearing when she repeatedly sought permission to participate remotely to answer any questions about her financial circumstances because she could not afford to travel out of state for the hearing. Second, she contends that she 7 submitted documentary evidence that established her inability to pay and the trial court did not expressly find that she possesses sufficient disposable income to pay costs. See Tex. R. Civ. P. 145(d); id. R. 145(f)(2). With regard to the first issue raised by Perez, we note that while new Rule 21d “clarifies procedures for appearances at court proceedings,” see Tex. R. Civ. P. 21d, cmt.–2023, the trial court retains discretion under the rule to allow or require a participant to appear remotely or in person, Tex. R. Civ. P. 21d. When a party timely objects and states good cause to any method of appearance, however, the rule requires that “[b]efore proceeding by the objected-to method of appearance, the court must rule on the objection and timely communicate the ruling to the parties in a written order or on the record.” Id. R. 21d(d). The trial court failed to do so here. The trial court also failed to consider the relevant factors for determining “good cause” here, such as the case type (a SAPCR), court-proceeding type (an indigency hearing), the small number of parties and witnesses, the lack of complexity of the factual and legal issues, the type of evidence to be submitted, and the travel restrictions Perez described. But we need not determine whether these failures constitute an abuse of the trial court’s discretion. See Tex. R. App. P. 47.1. Instead, we turn to the second issue raised by Perez—the trial court’s failure to properly assess the evidence submitted by her and to make an express, detailed finding that she can afford to pay costs. The Texas Supreme Court has emphasized the importance of the procedure for consideration of indigency statements: “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 appellate record to be prepared and filed or suffer dismissal of the appeal.” In re J.W., 52 S.W.3d 730, 733 (Tex. 2001) (per curiam). In this case, 8 although the trial court did not allow Perez to appear remotely for the indigency hearing, during the hearing, it reviewed the evidence that Perez submitted, including noting that she receives SSI for one of her children. 2 Perez also submitted evidence that she receives food-assistance benefits from the State of Florida that are based on her household income. Under Rule 145(d), these documents showing that Perez or her dependent “receives benefits from a means-tested government entitlement program” are prima facie evidence of Perez’s inability to afford payment of costs. Once Perez introduced evidence that she receives income-based government benefits, the burden shifted to Akene or whoever opposed Perez’s Statement of Inability to present evidence either rebutting Perez’s claim that she receives those benefits or of the existence of other funds available to her that the trial court could properly consider. See Sansom, 799 S.W.2d at 778; see also Booker v. Mahmoudi, No. 05-19-00048-CV, 2019 WL 2266667, at *3 (Tex. App.—Dallas May 24, 2019, no pet.) (when declarant established prima facie case, “it was incumbent that evidence be presented that other funds [were] available to [him]”). In the absence of any controverting evidence to rebut Perez’s prima facie evidence, the trial court was not free to disregard that evidence, and it was an abuse of discretion for it to do so. See, e.g., In re A.R.M., 2017 WL 2962830, at *2-3; Sansom, 799 S.W.2d at 778. In its order, in addition to basing its ruling in part on Perez’s failure to appear, the trial court stated that the evidence submitted by Perez related to her “high rent and little income” indicated “that there would be other people helping her pay her rent and needing further explanation.” To the extent that the trial court based its ruling on its belief that Perez might have 2 The benefit-verification letter from the Social Security Administration submitted by Perez states that “[t]he payment amount may change from month to month if income or living situation changes.” 9 assistance with living expenses, it abused its discretion. To establish her own inability to pay costs, Perez had no burden to show that her family or friends are unable to pay costs. See, e.g., In re A.R.M., 2017 WL 2962830, at *2; Gofney, 554 S.W.2d at 159-60. Because Perez submitted prima facie evidence of her inability to pay, no evidence was submitted to controvert her proof, and the trial court failed to make detailed findings that Perez can afford to pay costs, we hold the trial court’s order requiring her to pay costs was “so arbitrary and unreasonable as to be clearly wrong.” Strickland, 668 S.W.3d at 39 (quoting Arevalo v. Millan, 983 S.W.2d 803, 804 (Tex. App.—Houston [1st Dist.] 1998, no pet.), and concluding trial court abused its discretion by requiring declarant to pay costs because declarant had provided sworn evidence that he received food stamps, which was unrebutted, and trial court failed to make detailed findings); see also In re N.L.P., No. 06-17-00010-CV, 2017 WL 490701, at *2 (Tex. App.—Texarkana Feb. 7, 2017, no pet.) (mem. op.) (holding trial court abused its discretion by requiring party to pay costs where affidavit of indigency complied with Rule 145, notice of hearing was not provided in accordance with Rule, no controverting evidence was introduced at hearing, and trial court’s order was unsupported by findings); Sansom, 799 S.W.2d at 778 (requiring trial court to withdraw order sustaining contest because appellant presented evidence supporting indigency and no evidence rebutted appellant’s testimony). 10 CONCLUSION Having held that the trial court abused its discretion by ordering Perez to pay costs, we reverse the June 2, 2026 order. Because Perez has established her indigency, she is not required to pay costs. The appellate record shall be prepared without payment of costs. __________________________________________ Gisela D. Triana, Justice Before Justices Triana, Crump, and Ellis Reversed Filed: September 17, 2026 11