In the Estate of Albert John Clark, Sr., Deceased--Appeal from Probate Court No 1 of Bexar County

MEMORANDUM OPINION

No. 04-06-00238-CV

IN THE MATTER OF THE ESTATE OF ALBERT JOHN CLARK, SR., Deceased

From Probate Court No. 1, Bexar County, Texas

Trial Court No. 2002-PC-2161

Honorable Polly Jackson Spencer, Judge Presiding

PER CURIAM

Sitting: Sandee Bryan Marion , Justice

Phylis J. Speedlin , Justice

Rebecca Simmons , Justice

Delivered and Filed: September 13, 2006

AFFIRMING ORDER SUSTAINING CONTESTS TO AFFIDAVIT OF INDIGENCE

This is an appeal from the trial court's order sustaining contests to Irene Hernandez's affidavit of indigence. The underlying lawsuit was brought against Hernandez to recover property and funds given to her by the decedent, Albert John Clark, Sr., during the last few years of his life. Because we find that the trial court did not abuse its discretion when it denied the request for a free record, we affirm.

ABILITY TO PAY COSTS ON APPEAL

A party may appeal as an indigent by filing an affidavit of indigence pursuant to Texas Rule of Appellate Procedure 20.1. See Tex. R. App. P. 20.1. If the court reporter or another party files a contest, the party who filed the affidavit must prove her indigence. See White v. Bayless, 40 S.W.3d 574, 576 (Tex. App.--San Antonio 2001, pet. denied). A party claiming indigence must prove by a preponderance of the evidence that she would be unable to pay costs if she "really wanted to and made a good faith effort to do so." Allred v. Lowry, 597 S.W.2d 353, 355 (Tex. 1980); White, 40 S.W.3d at 576. We review a trial court's determination of indigence status under an abuse of discretion standard. White, 40 S.W.3d at 576.

At the contest hearing held in May 2006, Hernandez testified she has no assets that could be liquidated to pay court costs and she cannot obtain loans to pay the costs because she has an unfavorable credit rating. According to her affidavit of indigence, Hernandez's monthly expenses amount to $1,600, and her debts amount to the judgment against her in the underlying lawsuit and "broken rental leases" arising from her ownership of an import business. No evidence was introduced to support Hernandez's allegations that any landlord was seeking judgment against her personally. She stated she has not worked since February 2004, except for a temporary job that lasted about ten weeks in 2005. She receives no government assistance and, although the father of her minor son is employed and obligated to pay child support, she does not collect child support. Hernandez is a licensed vocational nurse, but her license is currently under review by the Texas Board of Nursing. Although she still has her license, Hernandez says she has not sought employment as a nurse because of the review proceeding. She said she has not sought any other type of employment because she must care for her son and her elderly parents. Hernandez admitted she could find employment, but has not.

Hernandez lives in the house that Mr. Clark purchased for her several years before his death. Mr. Clark paid $179,000 for the home, yet Hernandez testified that since the time that the underlying judgment was entered in this case, the house has been deeded to a third person, she has no money from the sale, and she continues to live in the house rent-free. In her affidavit, Hernandez claimed she had no more than $200 in her bank account. However, introduced into evidence was a list of checks written by Mr. Clark between May 2001 and May 2002 for the benefit of Hernandez and her family amounting to approximately $2.7 million.

CONCLUSION

Based on this record, we conclude the trial court did not abuse its discretion in sustaining the contests to Hernandez's affidavit of indigence. We therefore affirm the trial court's order sustaining the contest to Hernandez's affidavit of indigence. Hernandez must file, within fifteen days of the date of this opinion, evidence that she has made appropriate arrangements for payment of the clerk's and reporter's record on appeal. If Hernandez fails to make appropriate arrangements for payment of the clerk's record, this appeal will be subject to the dismissal for failure to prosecute. If Hernandez fails to make appropriate arrangements for payment of the reporter's record, this court will consider only those issues or points raised in her brief that do not require a reporter's record for a decision. See Tex. R. App. P. 37.3(c).

PER CURIAM