By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
Appellate procedure rule 20.1 affidavit not
required under Family Code if an indigency hearing was held in the juvenile
court (00-3-07)
On June 21, 2000, the Texas Supreme Court held that under Section 56.02 of
the Family Code the requirement of Rules of Appellate Procedure 20.1 that an
affidavit of indigency must be filed is excused when the juvenile court conducts
a hearing on indigency.
00-3-07. In the Matter of K.C.A., ___ S.W.3d ___, No. 99-0986, 2000 WL 798107,
2000 Tex.Lexis ___ (Tex. 6/21/00)[Texas Juvenile Law 319 (4th Ed. 1996)].
Facts: The issue in this case is whether a minor must file an affidavit of
indigence as prescribed in Texas Rule of Appellate Procedure 20.1 as a predicate
to being declared indigent for purposes of appealing an adjudication of
delinquency. The court of appeals held that such an affidavit is required. ___
S.W.3d at ___. Because we conclude to the contrary, we grant the petition and,
without hearing oral argument, remand the case to the court of appeals to
consider the merits of the appeal of the trial court's finding that the minor is
not indigent.
Held: Vacated and remanded.
Opinion Text: In pre-trial proceedings, the trial court conducted a hearing on
K.C.A.'s motion that the cost of preparing the transcript of the record from a
preliminary hearing be paid from county funds. At this first hearing to
determine indigence, K.C.A.'s father testified as to various aspects of his
financial situation, including that he had hired an attorney to represent K.C.A.
at trial, had used a lump-sum disability payment in the amount of $10,450 to pay
for that representation, that his funds were exhausted, and that he was on
permanent disability leave without pay. The trial court found that K.C.A. was
not indigent and denied K.C.A.'s motion.
The case proceeded to trial. K.C.A. was adjudicated delinquent for committing
the offense of murder and ordered confined for twenty years as a child engaged
in delinquent conduct. K.C.A. filed a notice of appeal and an "Indigency
Notice to the Court," stating that he and his family were indigent and
unable to retain appellate counsel or pay costs of the appeal. K.C.A. did not
file an affidavit as required by Rule 20.1. Tex.R.App. P. 20.1(a)(1).
Nevertheless, the district clerk timely contested K.C.A.'s indigence assertion.
A visiting judge sitting by assignment conducted the second hearing to determine
indigence. K.C.A.'s mother testified that "we" could not afford
K.C.A.'s lawyer, that K.C.A.'s father was unemployed, that she was in a drug
rehabilitation program and on drug-related probation in two counties, and that
they therefore asked for a court-appointed attorney. She also testified that she
did not expect K.C.A.'s father to appear for the hearing because he had an
outstanding warrant for his arrest. The trial court sustained the district
clerk's contest, ruling that K.C.A. was not indigent and would have to bear his
own costs on appeal.
K.C.A. petitioned the court of appeals for a writ of mandamus, which was denied.
This Court also denied mandamus but, by letter, gave instructions to proceed as
in In re Arroyo, 988 S.W.2d 737, 738-39 (Tex.1998) (per curiam) (consolidating
In re Arroyo and In re Holloway, and holding that when reviewing an order
sustaining a contest to an affidavit of indigence, the court of appeals should
require the clerk and court reporter to prepare and file the portions of the
record necessary to review the order). After an "In re Holloway motion to
consider indigence" was filed in the court of appeals on January 21, 1999,
that court ordered the district clerk and court reporter to prepare transcripts
of the two indigence hearings conducted by the trial court. ____ S.W.3d at ___.
The court of appeals then affirmed the trial court's denial of K.C.A.'s motion
to be declared indigent because "appellant's ability to proceed [on appeal]
without payment of costs was contingent, among other things, on his filing a
timely affidavit of indigence meeting rule 20.1(b)'s requirements." Id. at
___. K.C.A. filed a petition for review in this Court. His trial counsel has
moved to withdraw, and now notes on communications with this Court that he is
representing K.C.A. pro bono.
Rule 20.1 requires that "the party" appealing in a civil case file an
affidavit of indigence in order to proceed on appeal without advance payment of
costs. Tex.R.App. P. 20.1(a)(1). It also details the procedures whereby a
district clerk may challenge the alleged indigence. Id. § 20.1(e). But K.C.A.
argues, and we agree, that Rule 20.1 does not control the requirements for
determining indigence in this case. Instead, Family Code provisions apply.
First, the Family Code provides that juveniles have the right to appeal orders
of a juvenile court in cases such as this in which a child is found to have
engaged in delinquent conduct. See Tex. Fam.Code §§ 56.01(c)(1)(A), 54.03(a).
Additionally, in determining whether a juvenile is indigent, the court may
consider the assets and income of the child and the child's parent(s), and can
order a parent to pay these costs. See id. § 56.01(l), (m). Finally, section
56.02, entitled "Transcript on Appeal," provides for indigent appeals
as follows:
The juvenile court shall order the reporter to furnish a transcription without
charge to the attorney if the court finds, after hearing or on an affidavit
filed by the child's parent or other person responsible for support of the child
that the parent or other responsible person is unable to pay or to give security
therefor.
Id. § 56.02(b) (emphasis added).
The plain language of section 56.02 allows the indigence determination to be
based on either (1) a hearing or (2) an affidavit "by the child's parent[s]."
Id. § 56.02(b). Rule 20.1, on the other hand, requires that "the
party" must provide the information by affidavit. Tex.R.App. P. 20.1(a)(1).
In In re M.R., 858 S.W.2d 365, 366 (Tex.1993) (per curiam), cert. denied sub
nom., M.R. v. Texas, 510 U.S. 1078, 114 S.Ct. 894, 127 L.Ed.2d 87 (1994), we
concluded, based on the language of Title 3 of the Family Code, that the Texas
Rules of Civil Procedure do not apply when they conflict with applicable
provisions of the Family Code. Here, requiring K.C.A. to file an affidavit as
required by Rule 20.1 would constrict Family Code section 56.02(b)'s express
allowance for the indigence determination to based on either a hearing, as in
this case, or an affidavit. We conclude that because the Family Code allows an
indigence finding to be predicated on either a hearing or an affidavit filed by
a child's parent, a Rule 20.1 affidavit is not required, and a hearing will
suffice.
Our conclusion is buttressed by the fact that the rationale underlying the
affidavit requirement of Rule 20.1 is not applicable in juvenile court
proceedings. Rule 20.1 requires detailed affidavits in order to allow the court
reporter and district clerk to decide whether to object to the filing and to
prepare for that hearing. Tex.R.App. P. 20.1(b). To this end, Rule 20.1 provides
that notice of an affidavit be given to the district clerk and the court
reporter, allowing either of them to contest the affidavit. Id. § 20.1(d)-(e).
If the party is ruled indigent, the court reporter is ordered to produce the
transcript without prepayment, see id. § 20.1(j), and the rule does not
expressly provide for payment unless the appealing party is subsequently able to
pay. See id. § 20.1(l). In contrast, under the Family Code, the court reporter
is not given any express right to object to the indigency proceeding (which
occurs regardless of any contest being filed). See Tex. Fam.Code § 56.02. But
the Family Code expressly provides that the court reporter will be compensated
from county funds if the juvenile is found to be indigent. See id. § 56.02(c).
Thus, the court reporter need not decide whether to challenge, and the rationale
for applying Rule 20.1 is minimized.
For these reasons, we hold that K.C.A., as a minor appealing a delinquency
finding by a juvenile court, is not required to file a Rule 20.1 affidavit of
indigence as a predicate to either proving indigence or appealing the trial
court's finding of nonindigence. The court of appeals erred in holding to the
contrary. Accordingly, pursuant to Rule 59.1 of the Texas Rules of Appellate
Procedure, without hearing oral argument, the Court grants K.C.A.'s petition for
review, reverses the court of appeals' judgment, and remands the case to that
court for further proceedings.