CAROLYN WRIGHT
AFFIRM and Opinion Filed April 2, 2012
On Appeal from the 199th Judicial District Court
Collin County, Texas
Trial Court Cause No. 199-51636-2009
MEMORANDUM OPINION
Before Chief Justice Wright and Justices Francis and Lang-Miers
Opinion By Chief Justice Wright
Before the Court is the motion of appellant requesting appellate review of the trial court's order sustaining the contest to his affidavit of indigence. The trial court held a hearing on the contest and signed an order sustaining the contest on October 6, 2011.
In reviewing a trial court's order sustaining a contest to an affidavit of indigence, our task is to determine whether the court abused its discretion. See Jackson v. Tex. Bd. of Pardons & Paroles, 178 S.W.3d 272, 275 (Tex.App.-Houston [1st Dist.] 2005, no pet.). The trial court abuses its discretion when it acts without reference to any guiding rules or principles; the facts and law permit only one decision, which is the opposite of the trial court's decision; and the trial court's ruling is so arbitrary and unreasonable as to be clearly wrong. Arevalo v. Millan, 983 S.W.2d 803, 804 (Tex.App.-Houston [1st Dist.] 1998, no pet.) (en banc).
The test for indigence is whether the appellant shows by a preponderance of the evidence that he would be unable to pay the costs of appeal if he "really wanted to and made a good faith effort [to] do so." Arevalo, 983 S.W.2d at 804 (quoting Allred v. Lowry, 597 S.W.2d 353, 355 (Tex.1980)). See Pinchback v. Hockless, 139 Tex. 536, 164 S.W.2d 19 at 19 (1942) ("if [a party] owns an automobile or truck or other valuable property, although exempt from execution, which he could mortgage or otherwise dispose of and thereby secure the necessary funds without depriving himself and his family of the necessities of life, he should be required to pay the costs"); see also White v. Bayless, 40 S.W.3d 574, 576 (Tex.App.-San Antonio 2001, pet. denied) (per curiam) (no abuse of discretion in sustaining contest where party had given up stock ownership and note, had personal property valued at $5,350 but its location was unknown, and court unsure party had made "real attempt" to find that property; "failing to pursue and use assets that could be used to provide funds for paying for the appellate record evidence the opposite of a good-faith effort."). At the hearing on the contest to appellant's affidavit of indigence, the trial judge noted that appellant listed on his affidavit $700,000 in assets consisting of Yablon Properties, Ltd., life insurance, automobiles, checking account, and personal effects. Appellant stated on the affidavit that Yablon Properties, Ltd. is comprised primarily of "two small office/retail properties in downtown McKinney and some furniture." He lists his monthly expenses as $3,100. His affidavit also lists debts that exceed the amount of his assets. Although appellant had available assets, he had not made any attempt to sell his assets in order to pay for the record.
We conclude the record does not support a good-faith effort on appellant's part to pay for the record. We conclude the trial court did not abuse its discretion in sustaining the contest to appellant's affidavit of indigence. We affirm the trial court's order.
CAROLYN WRIGHT
CHIEF JUSTICE
110835F.P05